2017 Mass.App.Div. 198, Polinovskiy v. EDM Holdings, Inc.

Citation:2017 Mass.App.Div. 198
Opinion Judge:COVEN, P.J.
Party Name:NIKOLAY POLINOVSKIY v. EDM HOLDINGS, INC. and another [1]
Attorney:Joseph P. Franzese for the plintiff. Justin M. Murphy for the defendants.
Judge Panel:Present: Coven, P.J., Flynn & Karstetter, JJ.
Case Date:December 18, 2017
Court:Massachusetts Appellate Division
 
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2017 Mass.App.Div. 198

NIKOLAY POLINOVSKIY

v.

EDM HOLDINGS, INC. and another 1

Massachusetts Appellate Division, District Court Department, Northern District

December 18, 2017

October 20, 2017

Judgment entered in Chelsea District Court by Nestor, J. 2

Joseph P. Franzese for the plintiff.

Justin M. Murphy for the defendants.

Present: Coven, P.J., Flynn & Karstetter, JJ.

COVEN, P.J.

In a consolidated action, 3 the trial judge found in favor of the plaintiff on a claim for water-related damage to residential property caused by occupants residing at the premises with the permission of the defendants. On the defendants' counterclaims for breach of the security deposit law, G.L. c. 186, § 15B, judgment entered against the plaintiff. On the counterclaims for breach of warranty of habitability and breach of quiet enjoyment, judgment entered for the plaintiff.

In this Dist./Mun. Cts. R. A. D. A. 8C appeal, the defendants claim that (1) the evidence did not support a finding that the occupants caused the water damage; (2) the plaintiff failed to prove damages; (3) the record supported a per se violation of the warranty of habitability and breach of quiet enjoyment; and (4) there was error in offsetting the award of attorney's fees on the security deposit claim against the judgment for the plaintiff.

We agree that it was error to offset the judgment total awarded to the plaintiff with the defendants' award of attorney's fees on the security deposit claim. We also find error in the amount of the judgment itself. We otherwise affirm. Accordingly, we reverse and direct the entry of judgment in the amount consistent with this opinion.

We first address a serious misstep in the Rule 8C appeal. No transcript was available, and the defendants elected to file a Rule 8C(e) statement of evidence with the trial judge for approval. The judge approved the statement and noted that it was presumed that both parties agreed. The statement, however, refers only to documentary evidence. As a result, we are unaware of what testimony the trial judge may have relied upon in reaching a judgment. The statement did not include a statement of evidence presented

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through oral testimony. Moreover, the statement presented to the trial judge refers to thirty exhibits; however, the appendix filed in this appeal does not include all of the referenced documents.

It is axiomatic that a party appealing has a duty to provide a record adequate to address the issues on appeal. Without an adequate record, a reviewing court cannot say whether a...

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