2021 Mass. App. Div. 54

December 3, 2020 - June 30, 2021

Appellate Division Southern District

Court Below: District Court, Quincy Division

Present: Finnerty, P.J., Cunis & Campbell, JJ.

Appeal, Dismissal, Appellate procedural rules.

Albert A. DeNapoli and Taz Islam for the plaintiff.

William E. Gens and Bradford R. Stanton for the defendant.

CUNIS, J. This appeal arises from the failure of the defendant, Flatrate Moving, to follow basic appellate procedural rules, which resulted in a District Court judge dismissing its appeal. We affirm.

Background. The plaintiff, Susannah Cahn ("Cahn"), hired Flatrate Moving ("Flatrate") to assist her in her move from Colorado to Massachusetts. The parties executed a contract, under which Flatrate promised Cahn that it would move her belongings in a safe manner and would insure them for up to $30,000. Upon arriving in Massachusetts, Cahn found that a number of her belongings were damaged. Repeated attempts to address her concerns with Flatrate went unanswered. Eventually, Cahn hired an attorney and sent Flatrate a G.L. c. 93A demand letter. [Note 1] Flatrate did not reply.

On November 17, 2017, Cahn filed a small claims complaint and the matter was scheduled for trial on December 8, 2017. Apparently, Flatrate did not appear for trial and a default judgment entered for Cahn in the amount of $21,150. [Note 2] Counsel for Flatrate filed an appearance the following month and either appealed the small claims judgment, or successfully moved to vacate the judgment; the record is not clear on this point because the small claims docket was not included in the record before us. In any event, Flatrate successfully moved to transfer the matter to the regular civil docket, and Cahn's complaint entered on the docket on March 20, 2018. The court held a series of pretrial conferences in the eight months that followed. Curiously, counsel for Flatrate did not file an answer until November 27, 2018, along with a motion to dismiss Cahn's complaint. A District Court judge denied the motion to dismiss on December 10, 2018. The case was finally tried, jury waived, on March 13 and 14, 2019.

On May 10, 2019, the trial judge issued a memorandum of decision finding in favor of Cahn, awarding treble damages, costs, and interest. Judgment entered on May 21, 2019, and Flatrate filed a timely notice of appeal on May 31, 2019. Cahn thereafter filed a motion for attorney's fees, which Flatrate opposed. The trial judge heard the motion and allowed it on July 26, 2019. An amended judgment for $37,602.94 (reflecting the award of attorney's fees) entered on August 1, 2019. Flatrate filed another notice of appeal on August 12, 2019.

Flatrate did nothing to further perfect its appeal. Cahn filed a motion to dismiss

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the appeal on December 9, 2019, [Note 3] on ground that Flatrate failed to timely designate which of the three methods of appeal it was choosing. That same day, Flatrate filed an "Appeal on the Record Proceedings" pursuant to Rule 8C of the District/Municipal Courts Rules for Appellate Division Appeal. The trial judge heard Cahn's motion to dismiss the appeal and allowed it on March 12, 2020. Flatrate appealed the dismissal of its appeal on March 24, 2020, and filed a Rule 8A "Notice of Expedited Appeal."

Discussion. The procedural requirements for an appeal to the Appellate Division of the District Court are set forth in the District/Municipal Courts Rules for Appellate Division Appeal (Dist./Mun. Cts. R.A.D.A.). These rules are "neither complex, nor difficult to follow." Georgantis v. Star Mkt. Cos., 2000 Mass. App. Div. 77, 77. Following the timely filing of a notice ofappeal, [Note 4] an appellant must choose among three alternative methods of appeal under Dist./Mun. Cts. R.A. D.A.: an expedited appeal under Rule 8A; an agreed statement of the case under Rule 8B; or an appeal on the record of proceedings under Rule 8C. Each of these three rules prescribes certain mandatory procedural obligations the appellant must follow in order to perfect the appeal.

Rule 8C (at issue here) requires the appellant to file in the District Court and serve on the opposing party, within thirty days after filing the notice ofappeal, "a document captioned 'Appeal on the Record of Proceedings,'" which must include a statement that the appellant is proceeding under this rule along with a request for an electronic recording of the trial proceedings. Rule 8C thereafter sets forth in great detail the appellant's obligations for perfecting the appeal. Flatrate failed to file its Rule 8C "Appeal on the Record of Proceedings" until December 9, 2019 -- 119 days after filing its notice of appeal from the amended judgment.

A "motion to dismiss a noncomplying appeal presents the trial court with three questions: whether, in fact, the appellant has violated a procedural requirement; whether that violation amounts to a 'serious misstep,' Brown v. Quinn, 406 Mass. 641, 643-644 (1990), citing Schulte v. Director of the Div. of Employment Sec., 369 Mass. 74, 79 (1975), warranting appeal dismissal; and whether, even in the case of a serious misstep, the appellant has advanced good cause for a Rule 14(b) [of Dist./Mun. Cts. R. A. D.A.] extension of time to correct the procedural noncompliance." Islamov v. Tiomkin, 2011 Mass. App. Div. 13, 15. In this case, the first two questions must be answered in the affirmative and the third in the negative.

First, Flatrate violated a procedural requirement in not timely selecting the chosen method of appeal, because it did not file its Rule 8C designation within thirty days of filing its notice of appeal. See Georgantis, supra atn77-78. Second, the "failure to file a timely appeal on the record ofnproceedings designating the appellant's election to proceed under Rule 8C constitutes a serious procedural misstep, the 'presumptive penalty' for which is the dismissal of the appeal." Islamov, supra at 15, quoting Soderlund v. Mosher, 2009 Mass. App. Div. 32, 33-34. See also Georgantis, supra

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at 77-78. Finally, Flatrate failed to file a Dist./Mun. Cts. R.A.D.A. 14(b) [Note 5] motion for enlargement of time to file its Rule 8C designation. Under Rule 14(b),such a motion would require Flatrate to establish "good cause" for its failure to timely file the Rule 8C designation. Because Flatrate did not file a Rule 14(b) motion, no "'good cause' for the delay was even suggested" to the judge hearing the motion. [Note 6] Soderlund, supra at 34. Thus, Flatrate "forfeited any opportunity in this case to remedy" the procedural violation in not filing the Rule 14(b) motion. Islamov, supra at 15.

The allowance of Cahn's motion to dismiss the appeal is affirmed, and for that reason we decline to address other issues raised in this appeal.

Cahn requests in her brief, and shall be awarded, appellate attorney's fees and costs incurred in defending this appeal, based upon G.L. c. 93A. See Bonofiglio v. Commercial Union Ins. Co., 412 Mass. 612, 614 (1992), quoting Yorke Mgt. v. Castro, 406 Mass. 17, 19 (1989) ("The statutory provisions for a 'reasonable attorney's fee' would ring hollow if it did not necessarily include a fee for the appeal."). She may submit an application for fees and costs with supporting documentation to this Appellate Division within fourteen days of the issuance of this Opinion. See Fabre v. Walton, 441 Mass. 9, 10 (2004). Flatrate shall have fourteen days thereafter to respond.


[Note 1] G.L. c. 93A, ยง9(3).

[Note 2] This amount reflects an award of treble damages.

[Note 3] Although the motion is dated December 6th, the docket records it as being filed on December 9, 2019.

[Note 4] Under Rule 4(a) of the Dist./Mun. Cts. R.A.D.A., a notice of appeal must be filed "with the clerk of the trial court within ten days after the date of the entry of the judgment in the case being appealed."

[Note 5] Rule 14(b) of the Dist./Mun. Cts. R.A.D.A. provides in relevant part that the "trial court or Appellate Division for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration such time."

[Note 6] There is some indication in the record -- specifically in Flatrate's March 24, 2020, notice appealing the dismissal of its appeal -- that it had argued a Rule 14(b) motion. The docket reflects no such motion filed. Regardless, it appears that this motion was argued after Cahn moved to dismiss the appeal on December 9, 2019, and before the judge decided the motion to dismiss on March 12, 2020. In any case,whether to allow a Rule 14(b) motion is strictly a matter of the judge's discretion, Fannie Mae v. Higgins, 2017 Mass. App. Div. 169, 170, and relief pursuant to the rule "is neither automatically, nor routinely, granted." Islamov, supra at 15, citing Magni v. Patriot Home Improvement, 2008 Mass. App. Div. 21, 22.