2019 Mass. App. Div. 20

December 7, 2018 - February 22, 2019

Appellate Division Southern District

Court Below: District Court, Taunton Division

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

Rene P. Moniz and Randall T. Weeks, Jr. for the plaintiff.

John E. Zajac for the defendants.

FINNERTY, J. Kenneth Pacheco General Carpentry, Inc. ("Pacheco") filed suit against Hyde Properties, Inc. ("Hyde") and John Connolly, Jr., Trustee of County Realty Trust (the "Trust") (collectively, the "Appellants") on a written contract under which Pacheco would provide labor and materials for a new roof on property owned by the Trust. Pacheco claimed it had performed its obligations and was due payment on the contract. Pacheco's motion for summary judgment was allowed against the Appellants, and judgment was entered against both. As to Hyde only, an award of attorney's fees was added. [Note 2] Hyde and the Trust were permitted to file a late appeal, which they did on June 28, 2017, identifying as the issues on appeal the trial court's allowance of summary judgment and the order for attorney's fees. After a period of no activity, Pacheco moved for dismissal of the appeal and for costs, which motions were allowed on December 6, 2017. Additional attorney's fees were at that time assessed against Hyde in the amount of $1,400. Hyde and the Trust timely filed an appeal on the record of proceedings as to the December 6, 2017 orders pursuant to Dist./Mun. Cts. R. A. D. A. 8C. The court denied Pacheco's motion to dismiss this second appeal, and it was transmitted to this Division. On July 17, 2018, this Division denied Pacheco's motion to dismiss the second appeal as untimely; deferred Pacheco's motion to strike Appellants' brief to the hearing panel; and limited the issues on appeal to: (1) whether the court erred in dismissing the first appeal, and (2) whether the court's later award of attorney's fees on the allowance of the dismissal was proper.

Thus, the first issue before us is whether the court's dismissal of the appeal was an abuse of discretion or an error of law.

Absent filing an expedited appeal pursuant to Dist./Mun. Cts. R. A. D. A. 8A or an agreed statement of the case pursuant to Rule 8B, Rule 8C(b) required the Appellants to file within thirty days of the notice of appeal an "appeal on the record of proceedings" and, if the transcript is required, to request (with the appropriate fee) an audio recording of the proceedings (unless such a request was included with the notice of appeal). Appellants did not comply with Rule 8C(b), and, 126 days after the notice of appeal had been filed, Pacheco moved to dismiss. In considering the

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dismissal of an appeal, the court is required to address three questions: (1) did the appellant in fact violate a procedural requirement; (2) did the violation amount to a serious misstep; and (3) has the appellant established good cause for an extension of time to correct the procedural noncompliance. Matter of J.C., 2015 Mass. App. Div. 82, 83.

The answer to the first two questions is, yes. Factually, it is clear that the appellants did not timely file a Rule 8C designation within the permitted time. Such a procedural defect has been described as a "serious misstep," the presumptive penalty for which is dismissal. Georgantis v. Star Mkt. Cos., 2000 Mass. App. Div. 77, 78. The Appellants did not file any motion for extension of time pursuant to Rule 14(b), but would have been required to show "good cause" for relief from the time requirements in any event. "Good cause" under Rule 14(b) is the practical equivalent of "excusable neglect," Bernard v. United Brands Co., 27 Mass. App. Ct. 415, 418 n.8 (1989), which "calls for unique or extraordinary circumstances." Georgantis, supra, quoting Mailer v. Mailer, 387 Mass. 401, 406 (1982). No error of law is evident, nor have the Appellants identified any, but we must also look to whether the trial court in answering these questions and dismissing the appeal abused its discretion. "We will overturn [an] exercise of discretion 'where we conclude that the judge made "a clear error of judgment in weighing" the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives'" (citations omitted). Matter of J.C., supra at 84, quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). However, the Appellants have failed to satisfy the burden of demonstrating good cause as a prerequisite to the court's exercise of the discretion to grant relief from the time requirements or to cure procedural defects. See Rule 14(b); Godfrey v. Woburn Foreign Motors, 2001 Mass. App. Div. 81, 83 and cases cited. See also Georgantis, supra.

The Appellants submitted as reasons for the noncompliance with the rules the fact that they had tendered payment of the original judgment (which the plaintiff had not accepted); that it was obvious to Pacheco that the appeal was proceeding under Rule 8C, so that the failure to designate the manner of appeal was harmless; that the notice of the availability of the transcript was not received from the court clerk because of the unavailability of the Appellants' counsel or his legal assistant or because another attorney was still listed on the docket. The responsibility for not only expediting an appeal, but also of monitoring its progress, is the Appellants' alone. Brown v. Quinn, 406 Mass. 641, 644 (1990). Such issues do not rise to the level of good cause under the rules. Georgantis, supra. We see no abuse of discretion in the dismissal of the appeal.

Applying the abuse of discretion review standard to the award of attorney's fees, we do not find an abuse of discretion in that award, nor do the Appellants present anything rising to the level of appellate argument on that issue. See Soderlund v. Mosher, 2009 Mass. App. Div. 32, 33 (bald assertions of error, lacking legal argument and authority, not advanced in manner that rises to level of appellate argument).

Pacheco has moved to strike the Appellants' brief for failure to comply with Rules 16, 19, and 20 of the Dist./Mun. Cts. R. A. D. A. That issue was reserved by the Division in the July 17, 2018 Decision and Order. The Appellants' brief fails to include a statement of the case or a statement of the facts, Rule 16(a)(3); fails to include references to statutes or rules on which determination of the issues

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on appeal depends, Rule 16(f); and lacks any reference in the brief to the record appendix, Rule 16(a)(4). The Appellants also failed to comply with Rule 18(b) by not serving a designation of portions of the record to be included in the appendix, or even to consult with Pacheco about the contents of the appendix. These are serious missteps without any explanation offered by the Appellants for their noncompliance with the rules. Our having found no merit to the appeal, this is not a circumstance in which this Division should overlook the numerous instances of noncompliance with the rules regarding appellate briefs. Pursuant to Rule 16(k), the Appellants' brief is stricken, and the appeal is dismissed.

So ordered.


[Note 1] John Connolly, Jr., as Trustee of County Realty Trust.

[Note 2] The contract to which Hyde was a party provided for attorney's fees incurred in collection of any delinquent balance.