Opinion
21-P-31
01-21-2022
Paul E. LINDER v. Bruce S. POLLAK.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Background. A default entered against the then-pro se defendant under Mass. R. Civ. P. 55 (a), 365 Mass. 822 (1974). The plaintiff subsequently filed a motion for assessment of damages and default judgment. No hearing on damages has been held and the docket does not reflect entry of a default judgment. Nonetheless, now represented by counsel, the defendant subsequently filed a pleading titled "Motion to Vacate Default Judgment." This was denied and the defendant filed a notice of appeal.
The defendant did not within fourteen days order a transcript of the proceedings below, nor did he certify to the clerk that no lower court proceedings were relevant to the appeal, as required by Mass. R. A. P. 8 (b) (1), as appearing in 481 Mass. 1611 (2019). Two months after filing the notice of appeal, the defendant filed in the trial court "Defendant [sic] Motion to Reconsider" the denial of his motion to vacate. The plaintiff opposed the motion, but counsel for the defendant (and defendant himself) failed to appear for the hearing on the motion to reconsider. Consequently, the court issued an order in which the motion judge noted that "no action [was] taken" on that motion; nonetheless, the motion judge effectively denied the motion for reconsideration and allowed the order denying the defendant's motion to vacate to stand.
The defendant took no further action with respect to his appeal and, over three months later, the plaintiff filed a motion to dismiss the defendant's appeal on grounds of failure to prosecute. The motion sought dismissal under Mass. R. A. P. 10 (c), as appearing in 481 Mass. 1618 (2019), and argued that the defendant's failure under Rule 8 (b) (1) to request the transcript or to certify that lower court proceedings were relevant to the appeal warranted dismissal.
Counsel for the defendant filed an opposition, stating that he had, as of that date, filed a notice with the clerk of the court that no transcript would be required and that, under Rule 10 (c), this cured any noncompliance. Rule 10 (c) provides in relevant part, "If, prior to the lower court's hearing [a] motion [under Rule 10 (c) ] for noncompliance with Rule 9 (d), the appellant shall have cured the noncompliance, the appellant's compliance shall be deemed timely."
Counsel once again failed to appear for the scheduled hearing on the motion to dismiss. At that hearing, counsel for the plaintiff suggested that, by filing the motion for reconsideration, the defendant had "waived" his appeal. He indicated further that the notice described by counsel for the defendant in his opposition was deficient because it did not indicate, as required by Rule 8 (b) (1), that the record was not relevant but instead simply stated that the defendant was not ordering any transcripts. The judge allowed the motion to dismiss the appeal although he stated, "it's the Appeals Court that would dismiss an appeal, not the Superior Court that would dismiss the appeal." The defendant has now appealed the dismissal of his original notice of appeal.
On appeal, the defendant seeks the safe harbor of Rule 10 (c). He acknowledges that his notice did not state that no lower court proceedings were relevant to the appeal, but suggests that that cannot be fatal. He notes that the judge did not make a finding of inexcusable neglect, as required for dismissal under Rule 10 (c), and in a brief that is perhaps unduly glib for an attorney whose failures have resulted in this unnecessary appeal, created much unnecessary litigation, and imposed costs on his client, his opponent, and the court system, suggests that his delay in informing the court that he would not be ordering a transcript was akin to the plaintiff's delay in moving to dismiss the appeal, which, since the latter is not required by any rule, it obviously was not.
Presumably because of the safe harbor provision, the plaintiff in his brief does not argue that dismissal was proper under Rule 10 (c). He argues that the filing of the motion to reconsider nullified the previously filed notice of appeal and that the failure of the defendant to file a new notice of appeal following the judge's order on the motion to reconsider means that all that is before us is a premature notice of appeal.
Discussion. The plaintiff's argument in support of the judge's order dismissing the original notice of appeal is without merit. A post-order motion served within ten days does stop the clock with respect to the time in which a notice of appeal must be filed, and any notice of appeal filed prior to the disposition of that motion is of no effect. See Mass. R. A. P. 4 (a) (3), as appearing in 481 Mass. 1606 (2019). However, the motion for reconsideration here was served approximately two months after the entry of the order from which the defendant initially appealed. It therefore had no effect on the appeal noticed initially by the defendant.
In his filings below, the only basis put forward by the plaintiff for dismissal of the notice of appeal was Rule 10 (c). That rule permits dismissal upon a finding of inexcusable neglect for failure to "comply with Rule 9 (d) or Rule 10 (a) (1)." Mass. R. A. P. 10 (c). The argument on the basis of this rule is waived because, as we've stated, it was not raised here. But in any event it would be of no avail to the plaintiff. To begin with, by its terms Rule 10 (c) does not authorize dismissal of an appeal for violation of Rule 8 (b) (1), and no argument has been made here or in the court below identifying any other authority for dismissal of an appeal for violation of that rule. We therefore express no opinion about the existence or scope of any such authority. To be sure, Rule 8 (b) (1) is the provision for ordering a transcript in an electronically recorded proceeding, and Mass. R. A. P. 9 (d) (2), as appearing in 481 Mass. 1615 (2019), is the rule for ordering a transcript in all other proceedings. Rule 9 (d) (2) requires within fourteen days of a notice of appeal delivery to the clerk of the lower court of a transcript, a signed statement certifying that the appellant has ordered the relevant portions of the transcript, or a signed statement certifying that the appellant has not ordered and does not intend to order the transcript. And it specifically says that it applies in all cases "excepting electronically recorded proceedings governed by Rule 8 (b) (1)." Id. Rule 8 (b) (1) provides that, "For those proceedings relevant to the appeal that were electronically recorded, the appellant shall request the transmission of the audio recording of those proceedings and order the transcription of those proceedings within 14 days of filing the notice of appeal ... unless the appellant certifies to the clerk (i) that no lower court proceedings are relevant to the appeal or (ii) that the transcript of all proceedings relevant to the appeal is on file with the court." Mass. R. A. P. 8 (b) (1) (A).
Even assuming, however, that that reference to Rule 8 (b) (1) brings failures to comply with that rule within the scope of appropriate bases for dismissal under Rule 10 (c), we think the safe harbor provided by Rule 10 (c) would have to be available to the defendant. It provides that, "If, prior to the lower court's hearing such motion for noncompliance of Rule 9 (d), the appellant shall have cured the noncompliance, the appellant's compliance shall be deemed timely." Mass. R. A. P. 10 (c). In this case, the defendant did inform the clerk of court prior to the hearing on the motion to dismiss that he would not be ordering a transcript. To be sure, counsel erred in using the language from Rule 9 (d) itself, which refers to ordering a transcript, rather than the applicable language from Rule 8 (b) (1), stating that no lower court proceedings were relevant. But as the rule makes clear that this statement is designed to inform the clerk that no transcript will be ordered we think it was adequate to bring the defendant into compliance with the rule and to give him the benefit of the safe harbor.
Because we think therefore that the judge lacked authority to dismiss the appeal we need not address the contention that it was error to fail to state explicitly that the defendant's neglect in complying with Rule 8 (b) (1) was inexcusable; nor need we address the viability of the defendant's claim in that initial appeal.
Although we note that the initial appeal appears to be interlocutory, see Institution for Sav. in Newburyport & Its Vicinity v. Langis, 92 Mass. App. Ct. 815, 818 (2018), that issue has not been raised either here or below and we do not decide it. In light of our conclusions about the limited issues raised here and in the trial court, we reverse the order dismissing the defendant's initial appeal. The defendant's April 8, 2019 notice of appeal shall be reinstated and the Superior Court forthwith shall complete assembly of the record.
So ordered.
Reversed