Chavoor v. Lewis

Mass. Dist. Ct., App. Div.

Chavoor v. Lewis

1980 Mass. App. Div. 123, 1 Mass. Supp. 625, 1980 Mass. App. Div. LEXIS 56

CourtMassachusetts District Court, Appellate Division

DecidedJuly 15, 1980

StatusPublished

Cited by2 cases

This text of 1980 Mass. App. Div. 123 (Chavoor v. Lewis) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chavoor v. Lewis, 1980 Mass. App. Div. 123, 1 Mass. Supp. 625, 1980 Mass. App. Div. LEXIS 56 (Mass. Ct. App. 1980).

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Opinion

Forte, J.

This tort action was commenced in the Superior Court Department and, upon transfer pursuant to G.L. c. 231, § 102C, was received by the Cambridge Division of the District Court Department on December 20, 1976.

On January 7, 1977, counsel for the defendant appeared at the call of the trial list. When this case was called for trial, it was dismissed by the court due to the failure of plaintiffs counsel to appear. Judgment entered for the defendant on January 21, 1977.

The docket indicates that no notice of the trial date was ever sent to plaintiffs counsel.

Sometime prior to December 18, 1978 the plaintiff filed a motion to vacate judgment. The docket does not indicate when this motion was filed, but on December 18, 1978 the court vacated judgment. The defendant claims to be aggrieved by this order.

The report is to be dismissed for the defendant’s failure to comply with the procedural requirements of Dist./Mun. Cts. R. Civ. P., Rule 64 governing the contents of a report to the Appellate Division. The report fails to state that it contains all the evidence material to the question under consideration, and this Division is thus free to assume that the report is incomplete. Comfort Air Systems, Inc. v. Cacopardo, 370 Mass. 255, 259 (1976). The report is in fact incomplete for the plaintiffs motion to vacate judgment and the accompanying affidavit have not been reported and are not contained in the report. The Appellate Division is confined to the report and cannot consider matters not contained therein. Tranfaglia v. Security Nat’l Bank, 53 Mass. App. Dec. 25 (1973). Although the missing documents are attached to the defendant’s brief, briefs cannot be used to introduce evidence which is not included in the report. Household Finance Corp. v. Vogel, 362 Mass. 885 (1972).

Report dismissed.

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Forte, J.

This tort action was commenced in the Superior Court Department and, upon transfer pursuant to G.L. c. 231, § 102C, was received by the Cambridge Division of the District Court Department on December 20, 1976.

On January 7, 1977, counsel for the defendant appeared at the call of the trial list. When this case was called for trial, it was dismissed by the court due to the failure of plaintiffs counsel to appear. Judgment entered for the defendant on January 21, 1977.

The docket indicates that no notice of the trial date was ever sent to plaintiffs counsel.

Sometime prior to December 18, 1978 the plaintiff filed a motion to vacate judgment. The docket does not indicate when this motion was filed, but on December 18, 1978 the court vacated judgment. The defendant claims to be aggrieved by this order.

The report is to be dismissed for the defendant’s failure to comply with the procedural requirements of Dist./Mun. Cts. R. Civ. P., Rule 64 governing the contents of a report to the Appellate Division. The report fails to state that it contains all the evidence material to the question under consideration, and this Division is thus free to assume that the report is incomplete. Comfort Air Systems, Inc. v. Cacopardo, 370 Mass. 255, 259 (1976). The report is in fact incomplete for the plaintiffs motion to vacate judgment and the accompanying affidavit have not been reported and are not contained in the report. The Appellate Division is confined to the report and cannot consider matters not contained therein. Tranfaglia v. Security Nat’l Bank, 53 Mass. App. Dec. 25 (1973). Although the missing documents are attached to the defendant’s brief, briefs cannot be used to introduce evidence which is not included in the report. Household Finance Corp. v. Vogel, 362 Mass. 885 (1972).

Report dismissed.

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Bluebook (online)

1980 Mass. App. Div. 123, 1 Mass. Supp. 625, 1980 Mass. App. Div. LEXIS 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chavoor-v-lewis-massdistctapp-1980.

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