MASTERPIECE KITCHEN & BATH, INC. vs. PETER GORDON & another. [Note 1]

LYNCH, J. This appeal arises from the plaintiff's attempt to recover attorney's fees, interests, and costs incurred while contesting the defendants' appeal from a judgment for the plaintiff entered in the District Court. The judgment was based on an arbitration award for the plaintiff.

Facts. In 1992, the parties executed a written contract providing for the construction of a $126,000 addition to the defendants' home. The contract provided that all claims and

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disputes "shall be decided by arbitration . unless the parties mutually agree otherwise." After referral the arbitrator found for the plaintiff and mailed his decision on November 19, 1993. In accordance with G. L. c. 142A, s. 4 (e), the decision stated that an appeal must be filed within twenty-one days of the mailing date of the decision. [Note 2] The defendants' appeal, in the form of a counterclaim to a complaint filed by the plaintiff but not yet served on the defendants, was not received by the trial court until December 13, 1993, twenty-four days after the mailing date of the arbitration decision. [Note 3]

On the plaintiff's motion, a District Court judge entered judgment on the arbitrator's decision and dismissed the defendants' counterclaim ruling that, because the defendants had voluntarily submitted to binding arbitration and later failed to comply with the time requirements for requesting an appeal, the arbitrator's decision was final. The decision was affirmed by both the Appellate Division of the District Court and the Appeals Court, 40 Mass. App. Ct. 1109 (1996); the defendants' application for further appellate review was denied. 422 Mass. 1108 (1996).

In its brief to the Appeals Court the plaintiff requested that attorney's fees and costs be assessed against the defendants. Following the defendants' unsuccessful appeals, the plaintiff moved for attorney's fees, interests, and costs pursuant to G. L. c. 211A, s. 15 [Note 4]; G. L. c. 231, s. 6F; and Mass. R. A. P.

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25, as amended, 378 Mass. 925 (1979). [Note 5], [Note 6] The plaintiff also argued that the contract provided for the payment of attorney's fees incurred in collecting on the contract. [Note 7] The Appeals Court denied the motion "as a matter of discretion"; the Appeals Court also denied the plaintiff's subsequent motion for clarification of that decision stating in part: "General Laws C. 231, s. 6F does not apply to a judgment of the Appeals Court and the appellee's motion was not an appeal under [s. ] 6G to the single justice." [Note 8]

Timeliness of plaintiff's G. L. c. 231, s. 6G, appeal. The plaintiff received notice of the decision of the Appeals Court denying its request for attorney's fees on July 31, 1996. The plaintiff appealed on August 12, 1996. General Laws c. 231, s. 6G, provides that an appeal must be taken within ten days after receiving notice of the decision. [Note 9] The defendants argue, therefore, that the plaintiff's appeal under G. L. c. 231, s. 6G, is untimely. We disagree.

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Rule 6 (a) of the Massachusetts Rules of Civil Procedure, 365 Mass. 747 (1974), provides in pertinent part: "In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute or rule . . . [t]he last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday." In the instant case, the tenth day after the plaintiff received the decision of the Appeals Court was Saturday, August 10, 1996. The plaintiff, therefore, had until Monday, August 12, 1996, to file a timely appeal. See Davenport v. Broadhurst, 10 Mass. App. Ct. 182, 185 (1980). Accordingly, the appeal under G. L. c. 231, s. 6G, is properly before us.

The G. L. c. 231, s. 6G, appeal. General Laws c. 231, s. 6F, provides for the assessment of reasonable costs, including attorney's fees, incurred in litigation against a party who has advanced defenses which are wholly insubstantial, frivolous, or not made in good faith. [Note 10] See Waldman v. American Honda Motor Co., 413 Mass. 320, 323 (1992); Brookline v. Goldstein, 388 Mass. 443, 448 (1983). This statute ameliorates the consequences of the "American rule," which ordinarily denies a prevailing party the recovery of legal fees incurred in litigation. Brookline v. Goldstein, supra. See Waldman v. American Honda Motor Co., supra; Commissioner of Ins. v. Massachusetts Acc. Co., 318 Mass. 238, 241 (1945). Moreover, the punitive effect of s. 6F serves to discourage insubstantial and

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frivolous actions. See Waldman v. American Honda Motor Co., supra at 324 n.10; Brookline v. Goldstein, supra.

Cases decided under s. 6F have treated the statute's purpose sympathetically in order that its policies may be effectuated. Brookline v. Goldstein, supra. This court has applied s. 6F in awarding appellate attorney's fees incurred in defending against frivolous appeals. Hahn v. Planning Bd. of Stoughton, 403 Mass. 332, 334, 338-339 (1988), S.C., 406 Mass. 1001, 1002 (1989). See Ashford v. Massachusetts Bay Transp. Auth., 421 Mass. 563, 568-569 (1995) (reminding litigants that improper appeals may result in sanctions under G. L. c. 231, s. 6F); Pollack v. Kelly, 372 Mass. 469, 477 & n.5 (1977) (reminding litigants that G. L. c. 231, s.s. 6E-6G, provide a basis for sanctions for "continued use of . . . delaying tactics in the face of settled law against the presentation of interlocutory appeals"). Furthermore s.s. 6E-6G specifically include the Appeals Court within the ambit of the statute. See G. L. c. 231, s.s. 6E-6G. Thus, the cryptic conclusion of the Appeals Court that "General Laws c. 231, 6F, does not apply to a judgment of the Appeals Court" was erroneous. See, e.g., Worcester v. O'Keefe, 36 Mass. App. Ct. 1109, 1109 (1994) ("The defendant's motion for attorney's fees incurred in his appeal to this court is allowed, the amount to be determined upon application to a single justice of the court. G. L. c. 231, s.s. 6F, 6G"); Matter of a Grand Jury Subpoena, 30 Mass. App. Ct. 462, 466 (1991) ("we conclude that [a party's] appeal is not so wholly insubstantial as to warrant the imposition of sanctions under G. L. c. 231, s. 6F"); Strand v. Hubbard, 27 Mass. App. Ct. 684, 688 (1989) ("[t]he appellate court may, of course, make a determination that the appeal meets the criteria of [G. L. c. 231, s. 6F] and order counsel fees to be determined in the trial court"); Cohen v. Hurley, 20 Mass. App. Ct. 439, 441 & n.2 (1985) (where appeal to single justice was frivolous, single justice had power to award party opposing appeal costs and fees pursuant to Mass. R. A. P. 25, and G. L. c. 231, s. 6F).

The Appeals Court has already rejected the plaintiff's motion under G. L. c. 211A, s. 15, and Mass. R. A. P. 25, as a matter of discretion and no appeal from that decision is

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properly before us. [Note 11] We point out, however, that there is a significant difference between G. L. c. 231, s. 6F, on the one hand, and G. L. c. 211A, s. 15 and Mass. R. A. P. 25 on the other. The former statute grants a court discretion to determine whether the appeal is wholly insubstantial, frivolous, or not advanced in good faith. If that discretionary finding is made, however, the statute mandates the award of reasonable counsel fees and other costs and expenses. Rule 25 and c. 211A, s. 15, on the other hand, grant a court discretion in the award of fees and costs even if it determines that the appeal was frivolous. Because the Appeals Court's decision was based on the assumption that G. L. c. 231, s. 6F, did not apply, we cannot assume that it exercised its discretion as mandated by that statute. That is especially so when it does not appear on the record before us that there was a substantial basis for appealing from the judgment of the District Court and even less for applying for further appellate review. [Note 12]

The contract appeal. In claiming its appeal under G. L. c. 231, s. 6G, the plaintiff attempted to include an appeal

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from the denial of its claim for attorney's fees under the contract. This was a procedural misstep because G. L. c. 231, s. 6G, which authorizes an appeal to this court from the denial by the Appeals Court of a motion for counsel fees and other costs, is specifically limited to appeals arising under s. 6F. See note 11, supra. In order for the contract claim to be properly before this court, it would have been necessary for the plaintiff to have filed and have granted an application for further appellate review. See Mass. R. A. P. 27.1 (a), as amended, 367 Mass. 920 (1975). Because this procedural nuance has never before been decided and because the motion must be reheard in the Appeals Court, it would be a proper exercise of that court's discretion to hear the plaintiff's claim for attorney's fees and other costs of appeal arising under the contract because that claim has never been adjudicated on the merits. [Note 13]

This case is remanded to the Appeals Court or to a single justice thereof for a determination, after a hearing, whether the plaintiff is entitled to attorney's fees and other costs of its appeal pursuant to G. L. c. 231, s. 6F, and for other proceedings consistent with this opinion.

So ordered.