Home MARK REZNIK v. NICHOLAS URZIA and another [Note 1]

2016 Mass. App. Div. 110

July 22, 2016 - September 27, 2016

Appellate Division Northern District

Court Below: District Court, Concord Division

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

In the CONCORD DIVISION: Justice: Singh, J. [Note 2]

COVEN, P.J. This Dist./Mun. Cts. R. A. D. A. 8C appeal involves the dismissal of the plaintiff’s tort claim for property damage to his motor vehicle. [Note 3] We conclude that the appeal is procedurally defective and, therefore, dismiss the appeal.

More than twenty years ago, in City of Malden v. Antonangelli, 1995 Mass. App. Div. 149, it was stated: “The three alternative ‘methods of appeal’ set forth in Dist./Mun. Cts. R. A. D. A., Rules 8A, 8B and 8C envision and provide for three different forms of trial court record and related procedure. The proper choice of one of these three methods entails more than counsel’s mere personal preference, and should be based on the nature of the appellate issues presented and the form and extent of the evidence introduced in the trial court.” Id. at 150. As in this case, where the issues on appeal have been decided by the trial court upon the parties’ motions, “where ‘the issues of law for appellate review are both limited in number and capable of precise and narrow definition, and where trial evidence is largely documentary or can be adequately and appropriately summarized without the need for a transcript,’ Scalia v. Liberty Mutual Ins. Co., 1995 Mass. App. Div. 69, 70, the proper method of appeal to this Division is a Rule 8A Expedited Appeal.” Id. [Note 4]

Page 111

Although some leniency may be appropriate, “[t]he fact that the plaintiff represents himself does not excuse his noncompliance with procedural rules.” Brossard v. West Roxbury Div. of the Dist. Ct. Dep’t, 417 Mass. 183, 184 (1994). See Maza v. Commonwealth, 423 Mass. 1006 (1996) (pro se litigant held to same standards as litigants represented by counsel); Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985) (procedural rules bind pro se litigants as they bind other litigants). A pro se litigant’s obligation includes the basic requirements of appellate procedure to prepare an accurate and complete record appendix. Hussain v. Cameron Constr. & Roofing Co., 2007 Mass. App. Div. 14, 15.

In this case, the plaintiff appeals from several pretrial rulings involving adding a party, a deposition, purportedly improper discovery responses, and recusal. But overarching all of these issues is the ultimate sanction of dismissal for wilful violations of court orders and personal attacks against the litigants, counsel, and the motion judge without any support. [Note 5] The ultimate sanction of dismissal is generally appropriate only in “measurably aggravated circumstances,” Diamond v. Hanover Ins. Co., 1994 Mass. App. Div. 200, 202, involving repeated or blatantly egregious conduct. The imposition of such sanction “requires more careful scrutiny.” Gos v. Brownstein, 403 Mass. 252, 256 (1988).

As presented to this Division, the record appendix includes only selected trial court filings that have been included to advance the plaintiff’s claim of error in the pretrial rulings. However, as noted, the overarching sanction of dismissal is not capable of review, even if we were to disregard the plaintiff’s designation of appeal as Rule 8C and treat the appeal under Rule 8A, which would itself be defective. [Note 6] The plaintiff has not presented to this Division the full record necessary for examination of the merits of dismissal.

Page 112

The motion filed by the defendants to have the plaintiff’s complaint dismissed references a compilation of fourteen memoranda, motions, and correspondence that the judge was provided in evaluating the merits of the motion. It also references exhibits to the motion itself. The absence of all these filings and exhibits prevents us from reviewing the dismissal with “more careful scrutiny” as required of a judge in determining whether dismissal is an appropriate sanction.

The appeal is dismissed as failing to comply with the Rules for Appellate Division Appeal.


[Note 1] Miranda Equipment & Contracting, Inc.

[Note 2] The Honorable Sabita Singh recused herself from this appeal, and did not participate in its hearing, review, or decision.

[Note 3] The plaintiff requested, due to medical issues, that he be allowed to submit a memorandum of statement for the purposes of presenting his oral argument to this Division. The request was allowed.

[Note 4] It was also admonished in City of Malden v. Antonangelli that “[t]here is no justification in such a case for choosing in the first instance the more complex procedures and longer filing periods of Rule 8C which are necessary under that method of appeal for obtaining the trial court tape, designating the record, preparing a transcript and compiling an appendix.” Id. at 150. We note that in this appeal, there is no trial court tape, designation of the record, or a transcript. The docket reflects that the plaintiff, in filing his Rule 8C appeal notice, indicated that he was “making no designations for transcript.”

[Note 5] In their motion to dismiss, the defendants point to references in the plaintiff’s filings referring to defendant Urzia as “a drunk, a crook, and a liar.” There is also reference to the plaintiff as having suggested that the judge was biased because of having an affair with defense counsel, “despite having no evidentiary support,” to which the judge “admonishe[d] Plaintiff against further personal attacks without evidentiary support.”

As an alternative ground for dismissal, the defendants suggest that because the plaintiff’s insurer paid for the property damage to the plaintiff’s vehicle, he lacks standing to bring this action and, in any event, he suffered no personal injury and the economic loss rule, which precludes recovery in a negligence action if only economic damage is asserted, see e.g., Wyman v. Ayer Props., LLC, 83 Mass. App. Ct. 21, 25 (2012), warranted summary judgment. Because we determine the record appendix is insufficient, we do not address this claim.

[Note 6] An expedited appeal under Rule 8A “is appropriate when the issues are limited in number and fairly clearly defined. It allows an appellant promptly and specifically to describe the issue or issues for appeal,” subject to the opposing party’s objection or an order of the trial court. Commentary to Rule 8A. Rule 8A(a) requires that the “Expedited Appeal” include or have attached the following:

“(1) a copy of the notice of appeal referred to in Rule 3;

“(2) the text of any rulings of law by which the appellant claims to be aggrieved and the related requests for ruling, if any;

“(3) a description of the stage of the proceedings at which, and the manner in which, the issues presented for review in the notice of appeal arose;

“(4) a summary of the undisputed facts and so much of the evidence, including copies of pleadings and other documents, as may be necessary to decide the questions of law presented;

“(5) the text of any memorandum of decision and findings of fact issued by the trial court;

“(6) official citations to the essential statutes, rules of court, administrative rules or regulations, municipal ordinances, and town bylaws;

“(7) proof of service upon the parties and the trial court of the expedited appeal, including all attachments, pursuant to Rule 13(d); and

“(8) a certification that the expedited appeal contains all the evidence, facts and other material necessary for consideration of the appeal by the Appellate Division.”