NSM HOMESTEAD, LLC v. AFSOON MOKTAR

STARK, J. The defendant-appellant in this summary process action has appealed the judgment for damages entered in favor of the plaintiff-appellee. Because the appellant failed to comply with the provisions of District/Municipal Courts Rules for Appellate Division Appeals 8C and 18, we dismiss the appeal.

NSM Homestead, LLC ("NSM") brought a summary process action against Afsoon Moktar ("Moktar") to recover unpaid rent under a residential lease. After a bench trial, the District Court awarded NSM a $28,000.00 judgment reflecting the unpaid rent owed. Moktar appealed, contesting only the judgment amount. Moktar concedes that she owes three months of unpaid rent (October, November, and December of 2020). However, she challenges the judgment amount as it reflects an additional two months of unpaid rent (July, 2020 and January, 2021). In support of her argument that she does not owe July, 2020 rent, Moktar asserts that she did in fact pay rent that month and that she has bank statements that show the rent payment was debited from her account. NSM counters that a rent check for that month was returned for insufficient funds and never paid by the defendant. As to the January, 2021 rent, the defendant states that she vacated the property on January 4, 2021, so she does not owe rent for the full month of January.

On an appeal to this Appellate Division, the burden is on the appellant to prepare and furnish an adequate trial court record for review on appeal. Donovan v. Mahoney, 2012 Mass. App. Div. 4, 5. In an appeal under Rule 8C, which applies here, the appellant must provide an appendix to the brief. Pursuant to Rule 18, the appendix shall include: "(1) the notice of appeal; (2) a copy of the docket entries in the trial court proceedings; (3) the findings, if any, and relevant portions of the pleadings; (4) the judgment, order, decision or rulings in question; (5) the transcript or relevant portions thereof; and (6) any other parts of the record for appeal which are necessary for the full understanding of the issues presented." The transcript is an essential component of the record appendix in almost all Rule 8C appeals. See Lashus v. Slater, 2009 Mass. App. Div. 89, 91-92.

Here, the record appendix provided by the appellant is incomplete and therefore inadequate for appellate review. Specifically, Moktar failed to include a complete transcript of the March 5, 2021 proceeding. The portion of the transcript provided starts after the trial is already underway with the defendant's cross-examination of an

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unidentified witness. The transcript does not include any direct testimony from the plaintiff. Moreover, the appellant also failed to include the transcript from a hearing on March 12, 2021, at which the parties' briefs indicate the trial court held that the bank records the appellant sought to admit into evidence were inadmissible.

Further, nothing in this transcript, or any other materials provided on appeal, addresses the defendant's assertion that she does not owe rent for January, 2021. Nothing in the transcript provided to this Appellate Division mentions the January rent issue. See Samia v. D'Annunzio, 2001 Mass. App. Div. 31, 33, citing Harvard Univ. v. Goldstein, 1999 Mass. App. Div. 67, 68 (appellant's failure to provide anything in record germane to contention on appeal illustrates failure to discharge duty to provide accurate and complete trial record upon which issues presented on appeal may be satisfactorily reviewed).

The appendix is also deficient in that it lacks documents necessary to rule on the issues presented. Moktar's argument relies on bank statements that purportedly show that July, 2020 rent was withdrawn from her account. However, those bank statements were not provided in her appendix on appeal. Harvard Univ., supra. Because the primary issue raised on appeal requires consideration of documents not in the appendix, the appeal must fail for that reason as well. See Holyoke Med. Ctr., Inc. v. George, 2011 Mass. App. Div. 30, 32-33 (omitting documents required for appellate review warrants dismissal).

The fact that the defendant is proceeding pro se does not relieve her of the duty to submit an adequate record. While some leniency may be appropriate with a pro se party, this does not excuse noncompliance with procedural rules. See Reznik v. Urzia, 2016 Mass. App. Div. 110, 111 (plaintiff's pro se status did not excuse his providing record appendix containing only selected filings that advanced his claim).

For the reasons set forth herein, the appeal is dismissed.