Opinion
16-P-870
04-25-2017
Elise Larner HILLS v. John KIERNAN & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A judge of the Superior Court dismissed the plaintiff's underlying appeal on the ground that she did not timely order and file a transcript as required by Mass.R.A.P. 8(b)(1), as amended, 430 Mass. 1603 (1999), and Mass.R.A.P. 9(c)(2), as amended, 437 Mass. 1602 (2002). The plaintiff, pro se, now appeals from the dismissal order and the judge's order denying her motion for reconsideration. Because the plaintiff cured any noncompliance with the rules prior to the dismissal of her appeal, we vacate the orders.
Background. On September 30, 2015, after opening statements in a jury-waived trial, the trial judge directed a finding for the defendants. The same day, the trial judge dictated her findings and rulings into the record. Judgment for the defendants entered on October 6, 2015.
The plaintiff filed a notice of appeal on November 5, 2015. Within ten days of the notice, on November 14, 2015, the plaintiff submitted a letter to the clerk's office, stating:
"Thank you for your assistance regarding the transcript of [the trial judge's] findings and rulings entered on November 6, 2015.[ ] I am in the process of procuring the transcript from the [c]ourt [r]eporter Meredith Pollier, to [sic] that you can enter it into the record for appellate purposes in compliance with the provisions of [a]ppellate [r]ule 8(b)(1)."
The reference to November 6, 2015, is an obvious error, as no court event occurred on that date. We think it evident that the plaintiff meant to refer to the trial judge's findings and rulings dictated on September 30, 2015, and entered on October 6, 2015. The plaintiff represents this to be the case in her brief.
Although the plaintiff was then represented by counsel, she signed and filed the letter pro se. The letter was accepted, however, and entered on the trial docket.
On January 11, 2016, the defendants moved to dismiss the appeal, claiming that the plaintiff failed to order and file the transcript as required by Mass.R.A.P. 8(b)(1) and 9(c)(2). In their motion and accompanying memorandum of law, the defendants stated that "[t]he [c]ourt [r]eporter had completed the relevant transcripts by early October, so they should have been promptly available." The defendants did not submit any affidavits or other materials to support this statement.
In her opposition to the motion, filed through counsel, the plaintiff represented that, "upon information and belief," the transcript was " ‘signed’ and ‘finalized’ by the court reporter on or about January 4, 2016," and "the Plaintiff recently mailed a copy of the final transcript to the Court." Based on these assertions, among others, the plaintiff argued that any noncompliance with the rules "was not the result of Plaintiff's neglect and the potential deficiency was cured by the Plaintiff in a timely manner."
On January 12, 2016, the clerk's office received, as reflected on the trial docket, "1 CD from [a]pproved [c]ourt [t]ranscriber Meredith Pollier for November 6, 2015." Around two weeks later, on January 27, 2016, the motion judge (who was not the trial judge) dismissed the plaintiff's appeal without a hearing. The judge relied on "the reasons stated in defendants' memo of law," while also finding that the plaintiff acted with "inexcusable neglect" and that "[t]he plaintiff's opposition based on ‘information and belief’ fail [ed] to establish any reasons for the plaintiff's failure to comply." The judge did not address whether the plaintiff had cured her noncompliance.
Again, the reference to November 6, 2015, is an error and likely meant to refer to the judgment entered on October 6, 2015.
On March 8, 2016, the plaintiff moved to reconsider. , The motion was accompanied by a detailed affidavit from the plaintiff, in which she explained the difficulties she had in reaching Pollier (because Pollier was not listed on the roster of court reporters) and then in securing a signed and dated copy of the transcript. According to the plaintiff, she did not receive a signed and dated transcript from Pollier until January of 2016, and, upon receipt, she "promptly copied the file to disk per the instruction of the court, and mailed it as [she] was instructed to do." On March 30, 2016, the motion judge denied the plaintiff's motion to reconsider without further analysis.
The motion was served on February 5, 2016, within the ten-day limit of Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974).
Also on March 8, 2016, the plaintiff's attorney filed a motion to withdraw his representation, which was allowed.
Discussion. We review the judge's orders for abuse of discretion, being "mindful" that it was the plaintiff's burden "to pursue [her] appeal, and to provide an adequate record." Scheuer v. Mahoney, 80 Mass. App. Ct. 704, 708 (2011). Under Mass.R.A.P. 10(c), as amended, 417 Mass. 1602 (1994), a judge is authorized, "upon a finding of inexcusable neglect," to dismiss an appeal if the appellant has failed to take steps to procure a transcript in compliance with rule 9(c). At the same time, rule 10(c) provides that, "[i]f, prior to the lower court's hearing [a] motion for noncompliance with [r]ule 9(c), the appellant shall have cured the noncompliance, the appellant's compliance shall be deemed timely." See Springfield Young Women's Christian Assoc. v. Evers, 30 Mass. App. Ct. 921, 922 (1991) ; Neuwirth v. Neuwirth, 85 Mass. App. Ct. 248, 259 (2014). The cure provision of rule 10(c) is "compulsory," meaning that a judge has no discretion to dismiss an appeal if the appellant has timely cured her noncompliance with the rules. South BostonElderly Residences, Inc. v. Moynahan, 88 Mass. App. Ct. 742, 743 (2015).
As relevant here, rule 9(c) provides that the appellant "shall, within ten days after filing a notice of appeal, deliver to the clerk of the lower court either (i) a transcript of those portions of the transcript of the lower court proceedings which the appellant deems necessary for determination of the appeal, [or] (ii) a signed statement certifying that the appellant has ordered such portions from the court reporter." Relatedly, rule 8(b)(1) provides that "[w]ithin ten days after filing the notice of appeal the appellant shall order from the court reporter a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record."
Here, as noted, the trial docket contains an entry that the clerk received on January 12, 2016, a "CD from [a]pproved [c]ourt [t]ranscriber Meredith Pollier." The timing of the receipt is consistent with the plaintiff's representations, both in her opposition to the defendants' motion to dismiss and in the affidavit supporting her reconsideration motion, that she procured a signed and dated transcript from Pollier in January of 2016 and promptly mailed it to the court. Thus, by the time the judge allowed the motion to dismiss on January 27, 2016, the plaintiff had cured any noncompliance with rule 9(c). The judge was therefore "bound, by the language of rule 10(c), to deem the filing of the transcript timely." South Boston Elderly Residences, 88 Mass. App. Ct. at 759. See Neuwirth, 85 Mass. App. Ct. at 258-260.
Because the judge did not hold a hearing on the motion, we consider the date of the dismissal order to be the operative date for purposes of rule 10(c).
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The defendants contend that the plaintiff did not cure her noncompliance because "it is not clear whether she filed a transcription of the [final pretrial conference], the trial, or both." They fail to explain, however, why this matters for purposes of determining whether the plaintiff cured. Rule 9(c)(2) requires an appellant to file only those transcripts that she deems "necessary for determination of the appeal." To the extent the plaintiff has not filed transcripts essential to her appeal, she bears the risk of that omission, but it does not impact whether she complied with the rule.
The defendants further contend that "filing a transcript does not cure the fact that [the plaintiff] never filed [a] Rule 9(c)(2) certification" stating that she ordered the transcript. According to the defendants, the plaintiff's November 14, 2015, letter was not a proper certification because it "did not state that she ha[d] ‘ordered’ a transcript—only that she was ‘in the process of procuring’ it." While this seems to be splitting hairs, we need not reach the issue because compliance with rule 9(c)(2) can be effected either by filing the actual transcript or a certification. See Mass.R.A.P. 9(c)(2). Thus, the filing of the transcript was alone sufficient to cure the plaintiff's noncompliance, if there was any.
We also reject the defendants' argument that the appeal was properly dismissed because the plaintiff never designated, pursuant to rule 8(b)(1), "the parts of the transcript which [s]he intends to include in the record and a statement of the issues [s]he intends to present on the appeal." The designation is only required if the appellant does not intend to include the "entire transcript." Mass.R.A.P. 8(b)(1). We see nothing in the record to cast doubt on the plaintiff's representation that what she ordered and filed was the entire transcript of the bench trial and the trial judge's dictated findings and rulings. Indeed, the defendants do not seriously contest that representation. Instead, they claim that the "entire transcript" must also include the transcript from the final pretrial conference, during which, they say, the plaintiff made an "offer of proof" that would be relevant to her underlying appeal. The defendants cite no authority to support this reading of rule 8(b)(1), but in any event, even assuming they are correct, we still are not persuaded that dismissal was appropriate. An appellate court has authority to "exercise [its] own independent judgment" and reinstate an appeal in the interests of justice, "especially where the appellant's tardiness and any resulting prejudice to the appellee are both relatively minor." Neuwirth, 85 Mass. App. Ct. at 263, quoting from Mailer v. Mailer, 387 Mass. 401, 407 (1982). Here, the delay was only two months, at most, in contrast to cases "where an appellant inexcusably has let an appeal languish for years." Neuwirth, supra at 259. We observe also that the record strongly supports the plaintiff's claim that, during those two months, she was diligently trying to procure a signed and dated transcript from Pollier. In these circumstances we decline to affirm the dismissal based on the plaintiff's possible noncompliance with rule 8(b)(1).
For these reasons we vacate the order dismissing the plaintiff's appeal and the order denying her motion for reconsideration. We also direct the plaintiff to serve on the defendants, within ten days of the date of the rescript, a statement describing (1) which transcripts she is including in the record on appeal and (2) the issues she intends to present on appeal. The defendants shall serve a cross-designation, if any, as provided by Mass.R.A.P. 8(b)(1).
So ordered.
Vacated and remanded.