6 Mass. App. Ct. 684 | Mass. App. Ct. | 1978
Two of the residuary legatees (legatees) under a will have appealed from a decree of the Probate Court for Worcester County which awarded an attorney a total amount of $10,000, payable out of the estate, for his services to the executor in connection with the settlement of the estate. G. L. c. 215, § 39A. The only contention of any substance is that the evidence before the Probate Court did not warrant such an award as the one made. We consider this contention in light of the truncated portions of the trial record which have been reproduced in the legatees’ record appendix and affirm the decree. In doing so we take the occasion to express our views on certain of the requirements of Mass.R.A.P. 18(a) and (b), 365 Mass. 864, 865 (1974).
The legatees did not designate for inclusion in their appendix any of the exhibits which had been offered in
We note first that the language of Mass.R.A.P. 18(b) was taken directly (with minor variations not here material) from that of Fed.R.A.P. 30(b), which took effect in all the United States Courts of Appeals on July 1,1968. "Like the rules of civil procedure, ... [Mass.R.A.P. 18(b) is] to be given the adjudged construction ... given to ... [Fed.R.A.P. 30(b)] ... absent compelling reasons to the contrary or significant differences in content.” Westinghouse Elec. Supply Co. v. Healy Corp., 5 Mass. App. Ct. 43, 47 (1977). The Federal rule was intended to achieve uniformity among the circuits and was considered and adopted in light of a background of conflicting sets of rules concerning the manner in which the contents of a record were to be presented to the appellate judges for their consideration. A review of the cases decided in those circuits which then employed some variation of the record appendix method of designation and presentation discloses that it was generally with reluctance, and only in exceptional circumstances, that a Court of Appeals looked at some portion of the record of a District Court (such as a stenographic transcript) which had not been reproduced in an appendix in the manner required by some applicable rule. See, e.g., Hornin v. Montgomery Ward & Co., 120 F.2d 500, 504 (3d Cir. 1941); Esso Stand
We think it clear from the note to Fed.R.A.P. 30 which was published by the Advisory Committee on the Federal Rules of Appellate Procedure that the last sentence of the first paragraph of Fed.R.A.P. 30(b), which is verbatim identical to that of Mass.R.A.P. 18(b) (see note 5, supra), was intended to provide a measure of relief when there has been an inadvertent omission from an appendix. See Slade, The Appendix to the Briefs: Rule 30 of the Federal Rules of Appellate Procedure, 28 Fed. Bar J. 116, 123-124 (1968).
We cannot characterize any of the omissions in the present case as inadvertent. With full knowledge that the court had refused to hear the case on the original papers and trial transcript, counsel favored us with only one of the exhibits referred to in his brief and, in a single-issue case involving the sufficiency of the evidence to warrant a finding of fact, saw fit to reproduce only a fraction of the testimony in an appendix which contained an express admission of its insufficiency.
There is an additional route to the conclusion that we need not look at parts of a record which have not been reproduced in an appendix. As we pointed out in the Westinghouse case, the second sentence of the first paragraph of Mass.R.A.P. 18(a) differs from its counterpart in
It is for reasons such as these that we have usually adhered to a practice of declining to look at parts of re
The appendix in this case is insufficient to permit review of any question (if there is one) as to the sufficiency of the evidence to warrant the trial judge’s ultimate finding of the value of the services rendered by the petitioner to the executor in the course of the settlement of the estate. As already noted, there are no subsidiary findings of fact. So far as we are concerned, the case comes to us solely on the petition and the decree. In such circumstances the decree must be affirmed simply because it falls within the scope of the pleadings and contains no
Decree affirmed.
As it does not appear that the legatees filed any description of the parts of the transcript which they intended to include in the record or any statement of the issues which they intended to present on the appeal, we assume that the transcript includes all the evidence at the hearing on the petition. See Mass.R.A.P. 8(b), 365 Mass. 850 (1974).
The present petition is not subject to Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974), or to Mass.R.Dom.Rel.P. 52(a) (1975). See Mass.R.Civ.P. 1, 365 Mass. 730 (1974), and 81(a), as amended effective February 24, 1975, 367 Mass. 918, and Mass.R.Dom.Rel.P. 1 (as amended effective January 1, 1976) and 81(a) (1975).
The other issue referred to in the motion has now been effectively abandoned. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
See FMC Corp. v. Knowles Elec. Inc., 438 F.2d 1220, 1221 (4th Cir. 1971).
"In designating parts of the record for inclusion in the appendix, the parties shall have regard for the fact that the entire record is always available to the court for reference and examination and shall not engage in unnecessary designation.”
This request did not come to the attention of any of the Justices until approximately five months after the appendix had been filed, and then only because the petitioner had filed a motion for summary disposition under Rule 1:28 of the Appeals Court, as amended effective March 2, 1978, post 982.
Not atypical is the following: "The writer of this Brief has spent several hours studying the transcript of the trial in the Worcester County Probate Court, and again represents to your Honors that it contains no direct evidence (other than [the single exhibit already alluded to in the text of this opinion]) from which the Court could have determined what services Mr. Kunen and Mr. Novitch performed, or the fair and reasonable value thereof.”
There is a further reference to the same portion of the rule in an unsolicited submission which was tendered by counsel the day after the argument. Counsel also filed a motion for leave to amend the legatees’ designation so as to include the entire trial transcript. The motion was not accompanied by an offer to reproduce the missing portions of the transcript, and the allowance of the motion would bring nothing before our eyes.
Mr. Slade was a member of the Advisory Committee when the explanatory note was published. See 41 F.R.D. 311, 312 (1966); 43 F.R.D. 61, 119 (1968).
At this point we pause to inject a word of caution to the appellee. If he fails to exercise the right of counterdesignation which is accorded him by the third sentence of the first paragraph of Mass.R.A.P. 18(b), or exercises that right in a careless manner, and we do not sense the absence from the appendix of relevant portions of the record, the appellee may be surprised by a decision which gives him the uncomfortable feeling that we have somehow missed the mark.
It should be understood that the language of the proviso places an affirmative obligation on counsel to seek and secure such leave in advance of argument. The practice of our single justices, when presented with such requests which they are persuaded to grant, has been to order that the omitted material be reproduced in a supplemental appendix, as an addendum to a brief, or in some other fashion which will insure that the material is brought to the attention of the Justices before they commence their preparation for argument.
There is no need to overwhelm the reader with statistics as to our unavoidable appellate backlog. It is enough for present purposes to point out that the Legislature has recognized the problem and has recently authorized the appointment of four additional Justices to this court. See G. L. c. 211A, § 1, as appearing in St. 1978, c. 478, § 104.
There is nothing to the contrary in Cambridgeport Sav. Bank v. Binns, 5 Mass. App. Ct. 205 (1977). The papers on file in this court disclose that the missing master’s report was supplied to us by counsel for one of the appellees pursuant to leave first obtained from the single justice.
The motion to amend the legatees’ designation (note 8, supra) is denied.