2022 Mass. App. Div. 25

June 11, 2021 - May 5, 2022

Appellate Division Southern District

Court Below: District Court, Plymouth Division

Present: Finigan, Cunis & Campbell, JJ. [Note 1]

Raymond Wilson, III, pro se.

Kelly Wallace Ianelli for the defendant.

CUNIS, J. This appeal follows from the failure of the plaintiff, Raymond Wilson, III ("Wilson"), to abide by basic appellate procedural rules, which resulted in the dismissal of his appeal. Background. Wilson filed a personal injury action on May 9, 2017, in the District Court against the defendant, Stop & Shop Supermarket Company, LLC ("Stop & Shop"). In his complaint, Wilson claimed that he was injured at a Stop & Shop store when he struck his head on some shelving while reaching for soda. Stop & Shop filed a Mass. R. Civ. P. 12(b)(6) motion to dismiss, which a judge allowed because of Wilson's failure to appear at the hearing. The same judge later vacated the dismissal upon Wilson's motion, apparently because prior to the hearing, Wilson had advised the court that he was unavailable for the initial hearing date.

The court continued the hearing to August 30, 2017, on Stop & Shop's motion to dismiss, in which Stop & Shop argued that it was not required to warn its customers of open and obvious conditions such as the existence of store shelves, and thus Wilson failed to state a claim upon which relief could be granted. After a hearing on August 30, 2017, a different judge allowed the motion. A judgment of dismissal entered on September 1, 2017, and Wilson filed a notice of appeal to the Appellate Division that same day, followed by an amended notice of appeal on September 14, 2017.

In the months that followed, Wilson did nothing to perfect his appeal in a timely manner, in accord with the District/Municipal Courts Rules for Appellate Division Appeal. On December 7, 2017, Stop & Shop filed a motion to dismiss Wilson's appeal. After a hearing, a third judge allowed the motion to dismiss, noting that Wilson "demonstrated a lack of diligence in prosecuting this matter generally," and that he "failed to follow proper appellate procedures."

Thereafter, on January 8, 2018, Wilson filed a notice of appeal "on the record of proceedings" [Note 2] of the dismissal of his appeal. Stop & Shop moved to dismiss this appeal, and on May 1, 2018, a judge allowed the motion.

Evidently not discouraged, Wilson appealed this second order dismissing his appeal, also "on the record of proceedings." Stop & Shop then filed a motion to

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dismiss with prejudice Wilson's latest appeal. Wilson filed an opposition, and, as the docket boldly indicates, informed the court that he would not be attending the hearing on the motion to dismiss.

On August 29, 2018, a judge allowed Stop & Shop's motion to dismiss with prejudice and ordered that Wilson was "not permitted to file anything further in this matter without prior judicial authorization." Wilson requested a hearing before the judge. In response to this request, the judge further ordered on September 11, 2018, that "[b]y repeatedly failing to comply with the rules of appellate procedure and affirmatively absenting himself from a hearing on [a] properly filed motion to dismiss his appeal[,] the court finds [that Wilson] has forfeited any remaining rights he may have had in this matter through his own misconduct. His request for a hearing filed September 6, 2018 is denied."

Wilson did not stop there. He filed a petition for relief to a single justice of the Supreme Judicial Court pursuant to G.L. c. 211, ยง 3. The single justice denied the petition without a hearing, discerning "no case for an abuse of discretion" by the District Court judge.

Wilson then appealed to the full bench of the Supreme Judicial Court. In a February 11, 2020, rescript opinion that outlines much of the procedural history described above, the Court affirmed the single justice and rejected Wilson's claims for extraordinary relief, noting, among other things, that he had adequate means of addressing his grievances in the District Court. Wilson v. Stop & Shop Supermarket Co., 484 Mass. 1001, 1001-1002 (2020). A footnote in the decision, however, noted that the "sparse" appellate record was unclear about whether "Wilson was attempting at any point to appeal from the dismissal of his original appeal from the District Court judgment." Id. at 1002 n.1. The opinion further noted that Wilson had a right to appeal from the order precluding him "from further filings without prior judicial authorization." Id. Emboldened by this footnote, Wilson sent a letter to the District Court, dated February 14, 2020, demanding that the "first appeal" proceed to the Appellate Division, presumably on the issue of whether the judge properly allowed Stop & Shop's Rule 12(b)(6) motion to dismiss.

Discussion. In his brief, Wilson asks us to address the merits of Stop & Shop's Rule 12(b)(6) motion to dismiss, which a judge allowed, and which entered as a judgment of the District Court on September 1, 2017. This we decline to do, for the simple reason that Wilson failed to perfect his appeal of that judgment. [Note 3]

"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 of appeal, 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

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agreed statement of the case under Rule 8B; or an appeal on the record proceedings under Rule 8C. Each of these three rules prescribes certain mandatory procedural obligations the appellant must follow in order to perfect the appeal." Cahn v. Flatrate Moving, 2021 Mass. App. Div. 54, 55. In particular, each of these rules requires the appellant to file in the District Court certain documents within twenty days (Rule 8A) or thirty days (Rules 8B and 8C) after the notice of appeal is filed. Wilson never selected a method of appeal, and he otherwise failed to follow the mandatory procedural obligations for the perfection of his appeal. This "constitutes a serious procedural misstep, the 'presumptive penalty' for which is the dismissal of the appeal." Islamov v. Tiomkin, 2011 Mass. App. Div. 13, 15, quoting Soderlund v. Mosher, 2009 Mass. App. Div. 32, 33-34.

In addition, Wilson failed to file a Dist./Mun. Cts. R. A. D. A. 14(b) [Note 4] motion for enlargement of time to file his Rule 8A, 8B, or 8C designation. Under Rule 14(b), Wilson would be required to show "good cause" as to why he did not follow the requirements of the designated rule. But because no such motion was filed, no good cause was even suggested, and thus Wilson has "'forfeited any opportunity in this case to remedy' the procedural violation in not filing the Rule 14(b) motion." Cahn, supra at 56, quoting Islamov, supra at 15.

Finally, we note that Wilson's handwritten brief, composed of two pages of conclusory statements and a copy of the Supreme Judicial Court's opinion in Wilson v. Stop & Shop Supermarkets Co., is focused exclusively on the merits of his original appeal of the dismissal of his case under Rule 12(b)(6); he does not address any of the issues related to his failure to perfect his appeal. [Note 5] In any event, nothing in his brief rises to the level of appellate argument, Dist./Mun. Cts. R. A. D. A. 16(a)(4); Lobisser Bldg. Corp. v. Planning Bd. of Bellingham, 454 Mass. 123, 134 n.15 (2009), and his arguments would fail even if we were to reach the Rule 12(b)(6) issue on the merits.

Appeal dismissed.


[Note 1] The Honorable Cathleen E. Campbell participated in the hearing of this appeal, but was appointed to the Superior Court prior to the issuance of this opinion.

[Note 2] Presumably, Wilson was attempting to appeal pursuant to Dist./Mun. Cts. R. A. D. A. 8C.

[Note 3] Nothing in footnote 1 to the Supreme Judicial Court's decision in Wilson v. Stop & Shop Supermarket Co. suggests that Wilson is entitled to have us review on the merits the judge's allowance of Stop & Shop's Rule 12(b)(6) motion to dismiss. Because the record before it was "sparse," the Court speculated about whether Wilson's right to appeal the dismissal of his "original appeal" of the allowance of the Rule 12(b)(6) motion was curtailed by a judge or clerk. The record before us shows that it was not.

[Note 4] 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 5] Wilson filed a reply brief, which was essentially nothing more than a personal attack on the character of Stop & Shop's attorney.