Fruzzetti v. Corfinio Rest. C.E.O.
| Decision Date | 17 June 2022 |
| Docket Number | 21-P-1057 |
| Parties | LEE FRUZZETTI v. CORFINIO RESTAURANT C.E.O. |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The pro se plaintiff, Lee Fruzzetti, appeals from the allowance of summary judgment in favor of the defendant, Corfinio Restaurant C.E.O. We affirm.
Background. The following material facts are not in dispute.[1] On January 28, 2018, at approximately 9 P.M., the plaintiff drove past the defendant's restaurant and noticed a car belonging to his former girlfriend, Heidi Cooper, parked in the parking lot. The plaintiff stopped in the parking lot and observed Cooper inside with a male companion, Michael Varner. The restaurant closed at 9 P.M and at the time, the doors were locked to patrons entering. The plaintiff approached a restaurant window and began yelling at Cooper. Cooper and Varner came out of the restaurant, and the two men (the plaintiff and Varner) began sparring, without any blows landing. The plaintiff appeared to wield a weapon which was later determined to be a key fob with a key that opened with a spring motion. When the sparring ended and the plaintiff returned to his truck, Varner followed him and kicked the side of the plaintiff's truck. The plaintiff left the parking lot, and Varner returned to the inside of the restaurant.[2]
The plaintiff commenced this action which, as characterized by the judge, alleged that the defendant negligently overserved Varner alcohol and negligently failed to provide security. The defendant moved for summary judgment, and a Superior Court judge ruled that the plaintiff failed to present any record evidence that either Varner was intoxicated or that the defendant had overserved him.[3] Moreover, the judge concluded that, on the record presented, the defendant owed no duty to prevent Varner from leaving the restaurant in order to provide security to the plaintiff. Accordingly, the judge entered summary judgment in favor of the defendant. The plaintiff appealed.
Discussion.
The thrust of the plaintiff's argument on appeal is that that the judge should not have granted summary judgment for the defendant without allowing further discovery. The plaintiff does not cite to any relevant legal authority to support his argument, and as a result, his claim fails to rise to the level of adequate appellate argument. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019). The plaintiff also failed to file a record appendix containing documents from the summary judgment record necessary for proper appellate review.[4] "It is the appellant's burden to provide us with a complete record." G.B. v. C.A., 94 Mass.App.Ct. 389, 397 n.13 (2018). See Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019). Because pro se litigants are bound by the same rules and requirements as parties who are represented by counsel, see Brown v. Chicopee Fire Fighters Ass'n., Local 1710, IAFF, 408 Mass. 1003, 1004 n.4 (1990), on these grounds alone, we could affirm.
That notwithstanding, on this record it is clear the plaintiff's substantive argument is waived. The judge allowed the defendant's motion to extend the discovery deadline over the plaintiff's objection, and when the defendant sought to further extend the discovery deadline, the plaintiff opposed the motions. Thereafter, when faced with the defendant's summary judgment motion, there is nothing in the record that reflects that the plaintiff availed himself of the procedure in Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974). Under rule 56 (f), "[a] continuance is appropriate if the party opposing a summary judgment motion shows that it cannot, without further discovery, 'present by affidavits facts essential to justify [its] opposition.'" Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 307 (1991), quoting Mass. R. Civ. P. 56 (f). In order to obtain additional discovery prior to a ruling on a motion for summary judgment, the plaintiff was required to "make a 'minimal, threshold showing that there [was] a factual basis to support [his] complaint.'" Alphas Co. v. Kilduff, 72 Mass.App.Ct. 104, 107-108 (2008), quoting E.A. Miller, Inc. v. South Shore Bank, 405 Mass. 95, 100 (1989). He did not. "By failing to invoke rule 56 (f), [the plaintiff] waived [his] right to further discovery before the judge issued his decision on [the defendant's] motion for summary judgment." Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 401 (2003).[5]
Judgment affirmed.
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[1] We draw the facts from the judge's memorandum of decision on the defendant's motion for summary judgment, which was included in the addendum to the defendant's brief, and...
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