MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants, Andrew Najda and Charles Najda (the Najdas), appeal from an order entered on July 17, 2020, allowing the request of the plaintiff, Nikolaos J. Paterakis, for the issuance of a writ of execution, and from several related orders. We affirm.
Background.
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On March 30, 2016, a writ of execution on a judgment in favor of the plaintiff was issued in error (2016 execution). The next day, the plaintiffs counsel, John Dennehy, agreed to return the execution to the court. On April 8, 2016, the 2016 execution was vacated. Dennehy did not return the 2016 execution between March 30, 2016, and February 2, 2020.
In 2018, the plaintiff filed a motion seeking issuance of an execution. On February 3, 2020, at a hearing on the plaintiffs motion, Dennehy returned to the court what he represented to be the original 2016 execution, which was marked exhibit A. The Najdas objected to this turn of events and questioned the authenticity of exhibit A.
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A judge of the Superior Court (motion judge) retained exhibit A and ordered the plaintiff to file a new motion for an execution, to ensure the defendants had the time set by Superior Court Rule 9A to respond. The motion judge set a hearing for February 19, 2020. On February 4, 2020, the plaintiff filed a “verified motion to lift stay, accept return of original writ of execution, and issue new writ of execution” (motion). The motion was supported by Dennehys affidavit, which was sworn under the pains and penalties of perjury.
At the hearing on February 19, 2020, the Najdas continued to question the authenticity of exhibit A, noting that Dennehys affidavit was signed under the penalty of perjury but not sworn before a notary or judge. The motion judge had the clerk swear Dennehy, who reiterated that the statements in his filing were true and accurate to the best of his knowledge. The Najdas continued to question Dennehys credibility. Charles Najda also acknowledged that, between the two hearings, they came to court to examine exhibit A. He wanted an expert to examine the ink on the document. After further argument, the motion judge found that exhibit A was the authentic, original execution issued on March 30, 2016.
The motion judge denied a motion by the Najdas to strike the plaintiffs motion and granted the plaintiffs motion to lift stay, accept return of the original writ of execution, and issue a new writ of execution. He denied the Najdas’ motion to allow expert examination of exhibit A. The motion judge also denied a motion by the Najdas to strike Dennehys testimony at the February 19, 2020, hearing. On or about May 6, 2020, a different judge (second judge) denied the Najdas’ motion to stay execution and collection of the judgment pending appellate review of the motion judges orders. On July 17, 2020, the plaintiffs 2018 request for issuance of a writ of execution was allowed by a third Superior Court judge. The Najdas now appeal this order as well as those by the motion judge and second judge.
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Discussion. 1. Authenticity of the 2016 execution. The Najdas continue to challenge Dennehys testimony and the authenticity of exhibit A. Questions of credibility are for the fact finder, not the appellate court. See Keenan v. Maybrook, Inc., 40 Mass. App. Ct. 144, 146 (1996); Ryan Elliott & Co. v. Leggat, McCall & Werner, Inc., 8 Mass. App. Ct. 686, 689-690 (1979). Here, after the motion judge examined exhibit A himself and heard Dennehys testimony, which mirrored the affidavit he had submitted under the penalties of perjury, the motion judge was satisfied that he had before him the original, vacated, 2016 execution.
To the extent the Najdas object that their constitutional rights to due process were violated, we disagree. When Dennehy produced exhibit A on February 3, 2020, the motion judge required the plaintiff to resubmit his motion, allotting the Najdas time to respond, and held a new hearing sixteen days later. The motion judge allowed the Najdas to make their arguments at that hearing, and when they questioned Dennehys affidavit, the motion judge had Dennehy sworn in the Najdas’ presence to repeat the assertions in the affidavit and cure their concerns. Whatever challenges the Najdas had wanted to make to Dennehys affidavit, they had the opportunity to make them, and they also had time to marshal their response to exhibit A. We conclude that this procedure satisfied due process. See Matter of Kenney, 399 Mass. 431, 435 (1987) (“The fundamental requisite of due process is an opportunity to be heard at a meaningful time and in a meaningful manner”).
To the extent that the Najdas appeal the order denying their request for an expert to review exhibit A, that issue was a matter that rested in the discretion of the motion judge. See McCarthy v. Slade Assocs., 463 Mass. 181, 190 (2012). During the continuation of the hearing from February 3 to February 19, 2020, the Najdas availed themselves of the opportunity to inspect exhibit A. They could have had their expert inspect the document between February 3 and 19, 2020, and did not. Instead, they contend that the examination they proposed would have required that the vacated execution be sent out of state for examination. But they make this assertion without the benefit of an affidavit from any expert who has examined the document. We discern no abuse of discretion in the motion judges denial of this motion, particularly where the judge examined the document himself.
2. New writ of execution. The Najdas also challenge the orders allowing the motion to lift the stay, accept the return of the 2016 execution, and issue a new execution; denying their motion to strike that motion; and the July 17, 2020 order allowing the request for issuance of a writ of execution.
The plaintiff moved for issuance of the writ of execution pursuant to G. L. c. 235, § 19. That statute provides:
“If a judgment remains unsatisfied after the expiration of the time for taking out execution thereon, the creditor may obtain a new execution by motion to the court in which such unsatisfied judgment was rendered, or he may at any time after the judgment, subject to section twenty of chapter two hundred and sixty, bring a civil action thereon.”
An execution pursuant to § 19 “may be issued only on motion and by order of a judge where a judgment is unsatisfied and no original execution has been issued.” First Natl. Bank of Boston v. Bernier, 50 Mass. App. Ct. 756, 761 (2001). Here, an original execution issued in error. Thus, it was correct for the plaintiff to seek the issuance of an execution under section 19.
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Id. We discern no error.
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Conclusion. The order entered on March 23, 2020, allowing the motion to lift stay, accept return of original writ of execution, and issue new writ of execution, is affirmed. The order entered on March 23, 2020, denying the motion to strike the plaintiffs verified motion and exhibit A, is affirmed. The order entered on March 23, 2020, denying the motion to allow expert examination of exhibit A, is affirmed. The order entered on May 1, 2020, denying the motion to strike plaintiffs counsels testimony, is affirmed. The order entered on May 6, 2020, denying the motion to stay execution and collection pending appellate review, is affirmed. Finally, the order entered on July 17, 2020, allowing the issuance of a writ of execution, is affirmed.
So ordered.
Affirmed
FOOTNOTES
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. For a complete recitation of the underlying facts, see the prior unpublished memorandum and order issued pursuant to our former Rule 1:28 (now Rule 23.0), Paterakis v. Najda, 93 Mass. App. Ct. 1103 (2018).
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. Dennehy stated in an affidavit sworn under the pains and penalties of perjury that he had mailed the original 2016 execution to the court but it had been returned with the address label missing. He further stated that he thought he had returned the original 2016 execution but, in preparing for the February 3, 2020 hearing, he found the original 2016 execution in his file and so believed he must have returned a copy.
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. It is the duty of the appellants, the Najdas, to provide the court with all portions of the record essential for review. See Roby v. Superintendent, Mass. Correctional Inst., Concord, 94 Mass. App. Ct. 410, 412 (2018). The Najdas have not included the actual orders they appeal in the record, relying instead on the docket and representing that the motions were either allowed or denied. Nonetheless, we decide the appeal based on the record provided.
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. A conclusion that the 2016 execution does not qualify as an original execution, either because “[n]o execution shall issue upon a judgment until the exhaustion of all possible appellate review thereof, and the receipt by the clerk of the trial court of the appropriate rescript or order,” G. L. c. 235, § 16, or because it was vacated, would not assist the Najdas. The plaintiff sought an execution in 2018, promptly after the rescript issued in the prior appeal. The execution had to issue. “[T]he law awards the execution. ․ There is no judicial discretion to be exercised on the subject; the party may demand it of right, within the limitations as to time prescribed by the statute.” Boston v. Santosuosso, 308 Mass. 202, 206 (1941), quoting Briggs v. Wardwell, 10 Mass. 356, 357 (1813). We need not decide whether the Superior Court could properly have detained the 2018 execution until the plaintiff returned the 2016 execution, because that execution was returned.
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. None of the Najdas’ remaining arguments, all of which we have considered, warrant discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). This includes attacks on the plaintiffs credibility and whether he waived his right to a protective order by serving and then not filing a motion for such an order.