Home MIDLAND FUNDING LLC [Note 1] v. MARY BISHAY

2017 Mass. App. Div. 63

February 3, 2017 - April 27, 2017

Appellate Division Southern District

Court Below: District Court, Dedham Division

Present: Hand, P.J., Kirkman & Finigan, JJ.

Kristen L. Ruotolo for the plaintiff.

Neil Kreuzer for the defendant.


HAND, P.J. Appellee Midland Funding LLC, assignee of Chase Bank USA, N.A. ("Midland"), sued appellant Mary Bishay ("Bishay") to recover on a defaulted credit card debt Midland claimed Bishay had incurred and that Midland alleged had been assigned to it by the original creditor. [Note 2]

Relevant to this appeal, the docket reflects that Bishay moved, pro se, to dismiss Midland's complaint against her, pursuant to Mass. R. Civ. P. 12(b). On February 24, 2015, the court denied Bishay's motion to dismiss. On the same day, and pursuant to Mass. R. Civ. P. 55(a), the court entered a default against Bishay for her failure to appear for a scheduled pretrial conference.

Shortly thereafter, Midland filed a motion for assessment of damages and for default judgment against Bishay, and Bishay, represented by counsel, moved pursuant to Mass. R. Civ. P. 55(c) to vacate the default that had entered against her. On March 31, 2015, after hearing, the court denied Bishay's motion to vacate the default.

Within a week, Midland filed an application under Mass. R. Civ. P. 55(b) for assessment of damages and entry of default judgment against Bishay. On April 10, 2015, before the entry of any judgment against her, and, in fact, before the hearing on the motion for default judgment, Bishay filed a "Notice of Appeal Under Rule 8C," identifying her intent to appeal the trial court's February 24, 2015, denial of her motion to dismiss the complaint, and its March 31, 2015, denial of her motion to vacate the default against her. [Note 3] Bishay filed notice of her intent to proceed pursuant to Dist./

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Mun. Cts. R. A. D. A. 8C, without a transcript; the notice was dated April 21, 2015.

On May 15, 2015, after a hearing at which Bishay did not appear, the court allowed Midland's motion to assess damages against Bishay and, on May 20, 2015, entered default judgment against her.

Bishay's "Amended Notice of Appeal Under Rule 8C" was docketed in the trial court on May 29, 2015. In that notice, Bishay restated the grounds outlined in her April 10, 2015, notice of appeal, and added only her intent to appeal the court's May 20, 2015, judgment against her. That amended notice was silent as to Bishay's need for any transcript.

Bishay took no further steps to perfect her appeal. Specifically, and despite the reference to Rule 8C in the title of her May 29, 2015, amended notice of appeal, Bishay did not file the Appeal on the Record of Proceedings as required under Dist./Mun. Cts. R. A. D. A. 8C(b). [Note 4] In late September, 2015, some four months after Bishay's last notice of appeal had been filed, Midland moved to dismiss the appeal for Bishay's failure to perfect or pursue it. The court heard and allowed Midland's motion; Bishay's appeal was dismissed on October 16, 2015.

On November 12, 2015, Bishay moved to vacate the dismissal of her appeal, and for attorney's fees; the court denied her motion on January 5, 2016. On January 13, 2016, Bishay filed her "Second Amended Notice of Appeal Under Rule 8C." The Second Amended Notice of Appeal incorporated a statement of legal issues and authorities, stating Bishay's intent to appeal on each of the bases cited in her two earlier notices of appeal, as well as the court's denial of her motion to vacate the dismissal of her appeal. Bishay also filed on January 13, 2016, a "Second Appeal Notice Based on the Record of Proceedings Under Rule 8C." This notice, unlike Bishay's May 29, 2015, Amended Notice of Appeal Under Rule 8C, stated that Bishay would not be ordering a transcript.

As explained below, the only issue properly before us is the propriety of the trial court's January 5, 2016, denial of Bishay's motion to vacate dismissal of the appeal. We find no error in that ruling, and affirm it.

Bishay's April 10, 2015, notice of appeal, and the associated designation of her intention to proceed under Rule 8C, were filed before the entry of judgment, sought to appeal only interlocutory rulings by the trial court, see Levy v. Bendetson, 6 Mass. App. Ct. 558 , 560-561 (1978) (entry of judgment refers to date of appealable final judgment

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adjudicating all claims against all parties), and were of no effect. There is no right to an immediate appeal of an interlocutory ruling. See, e.g., Price-Hanson v. Pare, 1997 Mass. App. Div. 101 , 102, and cases cited. An appeal of an interlocutory ruling may be brought to this Division only by the voluntary report of the trial judge pursuant to G.L. c. 231, ยง 108, Mass. R. Civ. P. 64(d), and Dist./Mun. Cts. R. A. D. A. 5; Dist./Mun. Cts. R. A. D. A. 8C does not apply to appeals of interlocutory rulings. As the court did not report the case to this Division, Bishay's April 10, 2015, notice of appeal was premature, see Hearthside Court Condominium Trust at Pembroke v. Kerrigan, 1988 Mass. App. Div. 57 , 58, and we view it as a nullity. See Dist./Mun. Cts. R. A. D. A. 4(a) (notice of appeal filed before disposition of postjudgment motions "shall have no effect").

Bishay's right to appeal the court's rulings matured with the entry of judgment against her on May 20, 2015. Unfortunately for her appeal, although her May 29, 2015, Amended Notice of Appeal Under Rule 8C was timely, see Dist./Mun. Cts. R. A. D. A. 4(a) (notice of appeal shall be filed "within ten days after the date of the entry of the judgment in the case being appealed"), her failure to perfect that appeal provided the trial court with a proper basis on which to dismiss it. Rule 8C(b) requires an appellant proceeding under Rule 8C to file an Appeal on the Record of Proceedings "[w]ithin thirty days after" (emphasis added), id., filing the required notice of appeal. Bishay did not do so. "An appellant's failure to file a Dist./Mun. Cts. R. A. D. A., Rule 8C(b) 'appeal on the record of proceedings' within 30 days of his notice of appeal to designate Rule 8C as his 'method of appeal' has been characterized as a 'serious misstep' for which the 'presumptive' penalty is appeal dismissal. Georgantis v. Star Market Cos., 2000 Mass. App. Div. 77 , 78." Choice Health, Douglas Inv. Group, Inc. v. Devcon Enters., Inc., 2006 Mass. App. Div. 93 , 94. See Crystal Constr. Corp. v. Hartigan, 56 Mass. App. Ct. 324 , 330-331 (2002) (trial court has authority to dismiss appeal where appellant fails, without good cause, to take required steps to perfect appeal).

Bishay's failure to file the required notice may have had its roots not only in Bishay's misunderstanding of the requirements of Rule 8C, but also in her misunderstanding of the appropriate route of appeal for a case in which the appellant does not intend to use a trial transcript. The Dist./Mun. Cts. R. A. D. A. provide three methods of appeal: an expedited appeal under Rule 8A; a Rule 8B appeal on an agreed statement of the case; and, an appeal on the record of proceedings under Rule 8C. "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." City of Malden v. Antonangelli, 1995 Mass. App. Div. 149 , 150. Bishay's choice of Rule 8C as her route of appeal was inapt. Where a transcript is not required in order to resolve the issues on appeal, the appropriate route is an expedited appeal under Rule 8A. See Scalia v. Liberty Mut. Ins. Co., 1995 Mass. App. Div. 69 , 70 ("The 'Expedited Appeal' provided for in Rule 8A is particularly suited to cases in which 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."); Commentary to Rule 8C (where appeal is based solely on the pleadings, case "would

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appear appropriate for appeal under Rule 8A"). While Rule 8C(a) contemplates an appeal without a transcript, [Note 5] "Rule 8C(a) is not . . . an invitation to select the Rule 8C Appeal on the Record of Proceedings method in a case more appropriately brought to this Division under Rule 8A. The provision in question is instead intended to cover only those cases in which an appellant is compelled to proceed under Rule 8C because his initial Rule 8A Expedited Appeal was terminated upon objection of the trial judge or opposing party." Antonangelli, supra at 151. That is not the situation here; Bishay's appeal should have been brought under Rule 8A.

Having nominated Rule 8C in her May 29, 2015, Amended Notice of Appeal Under Rule 8C, Bishay committed to appealing "on the record of proceedings." See Dist./Mun. Cts. R. A. D. A. 8C (titled, "Rule 8C. Method of Appeal: Appeal on the Record of Proceedings"). Rule 8C(b) requires that notice to include any request for a copy of the recording of the court proceedings at issue. See id. Although the transcript is "an integral component" of the Rule 8C procedure, see Frankston v. Ferme, 2007 Mass. App. Div. 203 , 204, there is no indication in the record that Bishay actually did request any transcript or otherwise followed the Rule 8C deadlines required to perfect the appeal. Regardless of the appropriateness of Bishay's Rule 8C designation, it was incumbent on Bishay to file the notice required under Rule 8C to let the trial court and the appellee know that no transcript was necessary. She did not do so.

An appellant has an obligation "'to monitor the progress' of [her] appeal, Brown v. Quinn, 406 Mass. 641 , 644 (1990), and to take all necessary steps to expedite and advance that appeal. Frankston v. Ferme, 2007 Mass. App. Div. 203 , 204. An appellant is required to treat his notice of appeal 'as something more than taking out an option to appeal.' Associated Chiropractic Servs., Inc. v. Travelers Ins. Co., 1998 Mass. App. Div. 189 , 191." Citibank (S.D.) NA v. Surabian, 2013 Mass. App. Div. 45 , 48. While an appellant may move, pursuant to Dist./Mun. Cts. R. A. D. A. 14(b), for additional time to file the required designation under the rule, Bishay did not do so here, either relying on her April 21, 2015 filing, or through an oversight. [Note 6]

As of October 16, 2015, Bishay's appeal of the underlying judgment against her, for any of the reasons articulated in her motion, was properly dismissed. We find no error in the trial court's denial of Bishay's motion to vacate dismissal of her appeal, and affirm that order.


FOOTNOTES

[Note 1] As assignee of Chase Bank USA, N.A.

[Note 2] The complaint is not part of the record of this action. In light of Bishay's argument, we have obtained a copy of the complaint from the trial court.

[Note 3] The April 10, 2015, notice of appeal stated that Bishay intended to appeal the February 24, 2015, and March 31, 2015, orders of the trial court "in connection with the below referenced issues":

"1. Plaintiff lacked STANDING to bring this action.

"2. Plaintiff failed to produce cognizable ASSIGNMENT, naming the Defendant, the account number and the balance, as identified and signed by Chase; not by Midland.

"3. The ORDER dated February 24, 2015, denying Defendant's Motion to Dismiss for Lack of Standing.

"4. The Order dated March 31, 2015, denying the Defendant's Motion to VACATE the February 24, 2015 Order and the holding that Defendant failed to appear for pretrial conference after submitting motion to dismiss, and after waiving oral argument."

[Note 4] The second paragraph of Dist./Mun. Cts. R. A. D. A. 8C(b) provides that "[t]he Appeal on the Record of Proceedings shall consist of a statement that the party intends to proceed under this rule, and, if a transcript will be necessary, shall also include a request for a . . . copy of the electronic recording of the trial proceedings."

[Note 5] "No transcript . . . of the evidence shall be required for appeal under this rule where the issue or issues presented is raised solely by the pleadings." Dist./Mun. Cts. R. A. D. A. 8C(a).

[Note 6] To the extent that Bishay argues that her May 29, 2015, Amended Notice of Appeal Under Rule 8C incorporated her earlier, April 21, 2015, "Appeal Based on the Record of Proceedings - Under Rule 8C," we find no legal support for her position. As discussed above, however, in our view, Bishay's notice of appeal filed on April 10, 2015, was premature and, accordingly, null. The Appeal Based on the Record of Proceedings - Under Rule 8C, dated April 21, 2015, and in connection with that notice of appeal was not explicitly incorporated into any later notice of appeal that Bishay filed. In our view, the document dated April 21, 2015, did not have procedural significance independent of the notice of appeal to which it related: the April 10, 2015 notice of appeal.