Opinion
March 29, 1989.
Present: Turcotte, P.J., Lenhoff Larkin, JJ.
Practice, Civil, Failure to request rulings; Disallowance of draft report; Petition to establish draft report; Dist./Mun. Cts. R. Civ. P., Rule 64(e).
Report of court's disallowance of defendant's petition to establish draft report. Action heard in the Worcester Central Division by Loconto, J.
Eugene L. Rubin for the plaintiff.
Frederick Feinstein, pro se.
This is a petition to establish a report filed by the defendant (Feinstein) from an adverse judgment of the trial court. Following the judgment of the court the defendant in a proposed draft report raises a number of issues, including an allegation that he had been prejudiced by the plaintiff's comment at trial that, having been a victim of the Nazi Holocaust and having been confined in a concentration camp, "He would never cheat another Jew."
Given the procedural posture of the case, and the record deficiencies cited below, we agree with the trial judge's action in disallowing the draft report. Accordingly, we need not deal with any of the substantive issues raised by the defendant.
It is clear from the record that the defendant, at no appropriate time in the proceedings, filed any written request for rulings addressed to issues upon which he wished to focus appellate scrutiny.
It is now clear and well established that the filing of requests for rulings is the sine qua non to gain appellate review in appellate division practice. Indicative of this requirement is the following typical language:
Moreover, it appears from the record (the docket entries) that at the time the claim of report and draft report were filed, the defendant had filed no request or requests for rulings. Since the claim of report, therefore, presented no question of law, its dismissal by the trial justice was warranted. Charlsberg Printers, Inc. v. Shields, 56 Mass. App. Dec. 131 (1975) (citing Parkway Imports, Inc. v. Askinos, 37 Mass. App. Dec. 200 (1967).
In addition, Rule 64(e) of the Rules of District Municipal Courts provides in pertinent part that "(r)equests which relate to matters of law which might have been presented at the hearing on the merits and made the subjects of a report in the event of adverse rulings may not be raised as of right in connection with a petition to establish a report."
It is thus evident that the failure of the defendant to file requests for rulings is a fatal flaw in his attempt to secure appellate review here. We agree with the Trial Judge's action in disallowing the draft report and it thus follows that the Petition to establish a draft report is hereby disallowed. It is so Ordered.