DORIS OVALLE v. BARRY BILLCLIFF & Another.

• Court: Massachusetts Appeals Court
• Decided: April 18, 2025
• Docket: 24-P-0994
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-994

DORIS OVALLE

vs.

BARRY BILLCLIFF & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Barry Billcliff, appeals from a Superior

Court judgment on a jury verdict finding him negligent and

awarding damages against him for his role in the faulty repair

work done on the condominium building where the plaintiff, Doris

Ovalle, lived. On appeal, Billcliff argues that the judge

(1) demonstrated bias by making unwarranted attacks on and

interrupting him, which prejudiced the jury against him;

(2) denied him due process by failing to advise him of the

implications of requesting a mistrial; (3) unfairly limited his

time to present his defense; and (4) gave improper jury

1Tina Kalian. The claims against Kalian were dismissed by stipulation, and she is not involved in this appeal. instructions. Billcliff argues that the cumulative effect of

these errors rendered the trial fundamentally unfair. We

affirm.

Discussion. Billcliff has not provided this panel with the

complete trial transcript, any trial exhibits, or the complaint

or his answer, thus leaving us with a wholly inadequate record

on which to review his claims. See Shawmut Community Bank, N.A.

v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411

Mass. 807 (1992). It "is a fundamental and long-standing rule

of appellate civil practice" that the appellant has an

obligation "to include in the appendix those parts of the

[record that] are essential for review of the issues raised on

appeal." Id. Moreover, Billcliff's arguments on appeal lack

supporting citations to the record and to sufficient legal

authority. See Kellogg v. Board of Registration in Med., 461

Mass. 1001, 1003 (2011). While we recognize that Billcliff is

self-represented, he is nonetheless required to comply with the

Massachusetts Rules of Appellate Procedure.2 See Brossard v.

2 Although Billcliff filed his brief and record appendix under this court's informal brief pilot program, that program required him to file "a record appendix containing copies of all documents filed in or issued by the lower court or agency that are relevant to the issues raised in the appeal. . . . In civil cases, the appellant is also responsible for including any relevant transcripts. . . . The Appeals Court does not have to consider arguments that rely on materials the parties did not include in a record appendix or transcript(s)." Appeals Court

2 West Roxbury Div. of the Dist. Court Dep't, 417 Mass. 183, 184

(1994). Billcliff's record appendix includes only the trial

transcript from the first day of trial (which includes only jury

empanelment, opening statements, and a portion of the

plaintiff's testimony on direct examination); draft jury

instructions; a blank verdict form; and his notice of appeal.

We proceed to review Billcliff's claims based on the limited

record before us.

1. Prejudice from interruptions. Billcliff claims

generally that the judge "made unwarranted remarks and

interruptions that prejudiced the jury." But he points to no

specific portion of the transcript where the judge "demonstrated

bias" by improperly interrupting or admonishing him. We see no

such remarks or interruptions in the portion of the transcript

provided by Billcliff. Additionally, it is within a judge's

discretion to take a proactive role in evidentiary matters. See

Commonwealth v. Jackson, 419 Mass. 716, 722 (1995) (defendant

not prejudiced by judge's interruptions where judge correctly

excluded or curtailed repetitive, argumentative and improperly

phrased questions). "The judge's function at any trial is to be

'the directing and controlling mind at the trial, and not a mere

functionary to preserve order and lend ceremonial dignity to the

Informal Brief Pilot Program, https://www.mass.gov/info- details/appeals-court-informal-brief-pilot-program.

3 proceedings.'" Commonwealth v. Sapoznik, 28 Mass. App. Ct. 236,

241 n.4 (1990), quoting Commonwealth v. Wilson, 381 Mass. 90,

118 (1980).

2. Right to request mistrial. Billcliff argues that the

judge, in informing him of his right to request a mistrial,

violated his due process rights by not advising him of the

implications of his decision. Because Billcliff has not

provided the transcript of the day of trial where any discussion

of a mistrial occurred, we are unable to review any statements

the judge may have made concerning Billcliff's right to a

mistrial. We note the general rule that a pro se litigant is

bound by the same rules of procedure as a litigant with counsel.

See Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985). A judge

may provide procedural information and guidelines but "cannot

help self-represented litigants with the choices that they must

make and the substance of their claims, defenses, and/or

strategies." Judicial Guidelines for Civil Cases with Self-

Represented Litigants § 5.8 (2025). Billcliff has not cited

anything in the record to suggest that the judge did not give

him appropriate information within these guidelines.

3. Limitation of defense case. Billcliff next asserts

that the judge "repeatedly interrupted and admonished [him] to

'get to the point' or 'move on,' which unfairly limited the

presentation of critical evidence and arguments," while allowing

4 the plaintiff "to present her case with fewer restrictions."

Again, however, Billcliff cites nothing in the record supporting

this assertion. Our review of the partial transcript before us

discloses no instances of the judge's directing Billcliff to

"get to the point" or "move on." The judge did state, on page

347 of the transcript, that "[w]e need to move things along as

best we can," but this remark was directed to both parties and

was entirely appropriate. See Sapoznik, 28 Mass. App. Ct. at

241 n.4 (judge to be directing and controlling mind at trial).

4. Jury instructions. Finally, Billcliff contends that

the judge erred by providing improperly vague jury instructions

regarding the duty of care. "Objections, issues, or claims --

however meritorious -- that have not been raised at the trial

level are deemed generally to have been waived on appeal."

Palmer v. Murphy, 42 Mass. App. Ct. 334, 338 (1997). Because

Billcliff has not included the relevant portions of the

transcript, we are unable to determine whether Billcliff

objected to the jury instructions below. Thus, we do not have a

sufficient record to determine whether his claim is preserved on

appeal. Moreover, Billcliff has provided us only with the draft

jury instructions, in which we see no error, not the judge's

instructions as given to the jury. It is Billcliff's burden, as

the appellant, to include the documents that are essential for

review of the issues raised on appeal. See Zagami, 30 Mass.

5 App. Ct. at 372-373. As he has not done so, we have no basis on

which to disturb the judgment, because of the jury instructions

or otherwise.

Judgment affirmed.

By the Court (Sacks, Hershfang & Tan, JJ.3),

Clerk

Entered: April 18, 2025.

3 The panelists are listed in order of seniority.