MOHAMAD FAHD v. DONNA LAWSON and others [Note 1]

PRINCE, J. The self-represented appellant, Mohamad Fahd ("Fahd"), now appeals pursuant to District/Municipal Court Rules for Appellate Division Appeal 8C. He claims that the judge improperly dismissed his claims as to each of the defendants. We disagree and affirm.

When appealing under Rule 8C, the appellant is required to prepare and file an appendix that:

"shall contain: (1) the notice of appeal; (2) a copy of the docket entries in the trial court proceedings; (3) the findings, if any, and relevant portions of the pleadings; (4) the judgment, order, decision or rulings in question; (5) the transcript or relevant portions thereof; and (6) any other parts of the record for appeal which are necessary for the full understanding of the issues presented. . . . The transcript need not be included where the issues presented for appeal are raised solely by the pleadings" (emphasis added).

Rule 18(a).

In addition, at the time of perfecting the Rule 8C appeal in this case, [Note 2] the appellant was required, when maintaining that a transcript is not necessary, to file in the trial court a notice that no transcript is necessary because the issue is raised solely by the pleadings. Midland Funding LLC v. Bishay, 2017 Mass. App. Div. 63, 66.

The record before us includes the following: (1) briefs by all four parties; (2) a notice of appeal (3) a notice of Rule 8C appeal, and (4) a copy of the docket. Fahd's five-page brief consists of unintelligible legal ramblings based on an unidentifiable legal interest in the Long Pond Community Gardens in Marstons Mills located in

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Barnstable. In the notice of appeal, he states that "the bases of the Court's decisions are opaque. . . . There are two salient legal elements under consideration: res judicata and the Massachusetts Tort Claims Act, M.G.L. c. 258, section 4. The other issues brought up by the Defendants are presumed to be argumentative." Fahd has not provided a copy of the complaint, a copy of the defendants' motions, a copy of his opposition to the motion to dismiss, or a copy of the judge's decision. In addition, he has provided neither a transcript nor notice that a transcript is not necessary for review.

In reviewing the allowance of a motion to dismiss, we proceed de novo and consider the same pleadings as the motion judge. Baker v. Wilmer Cutler Pickering Hale & Dorr LLP, 91 Mass. App. Ct. 835, 842 (2017). The appellant has the burden of showing that the allowance of the motion was error. Cruz v. Attorney General, No. 06-P-1437 (Mass App. Ct. Sept. 28, 2007) (unpublished Rule 1:28 decision), citing Walter v. Placontrol, Inc., 65 Mass. App. Ct. 298, 303 (2005), and Cameron v. Carelli, 39 Mass. App. Ct. 81, 83 (1995). In this case, it is impossible to consider the same pleadings as the motion judge because the appellant did not comply with even the most basic appellate requirements. In that regard, his status as a self-represented litigant "does not excuse his noncompliance with procedural rules." Id., quoting Brossard v. West Roxbury Div. of the Dist. Ct. Dept., 417 Mass. 183, 184 (1994). As the appellant has wholly failed to meet his burden, the dismissal is affirmed.

In addition, the three appellees -- Donna Lawson, President of the Marstons Mills Village Association, Inc., a non-profit organization that operates the gardens of the town of Barnstable Conservation Commission, the Marstons Mills Village Association, and the town of Barnstable Conservation Commission -- seek sanctions alleging that the underlying complaint and present appeal are frivolous. Although sanctions for filing a frivolous complaint are not available in the District Court, Tilman v. Brink, 74 Mass. App. Ct. 845, 853 (2009) (Legislature excluded District Court from G.L. c. 231, § 6F sanctions), the Appellate Division may apply sanctions for a frivolous appeal pursuant to District/Municipal Court Rules for Appellate Division Appeal 25.

Under Rule 25, "If the Appellate Division shall determine that an appeal is frivolous, or that either party has acted in bad faith in proceeding under these rules, it may award to the aggrieved party just damages and single or double costs, and such interest on the amount of the judgment as may be allowed by law." An appeal is considered frivolous when there can be no reasonable expectation of a reversal. Allen v. Batchelder, 17 Mass. App. Ct. 453, 458 (1984). Based on the available record, it is clear that Fahd's underlying complaint has no legal merit and the subsequent appeal based on that complaint likewise lacks merit. For those reasons, this Appellate Division hereby awards damages pursuant Rule 25. Marino v. Kandris, 1997 Mass. App. Div. 129 (Rule 25 damages may include attorney's fees). Moreover, costs are doubled due to the bad faith of the appellant who has abused the litigation process at considerable expense and inconvenience to both appellees and the court.

The appellees are to file with this Division, and serve on the appellant, their application and supporting affidavit detailing their appellate attorney's fees and costs within fourteen days of the date of this opinion. The appellant may, within fourteen days thereafter, file with this Division, and serve on the appellees, any opposition to the amounts requested.