Opinion
No. 11–P–1331.
2012-07-3
Wendy RICKLES v. C. Thomas CUTTER.
By the Court (GRAHAM, KATZMANN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Wendy Rickles, who is an attorney appearing pro se, appeals from a judgment confirming a fee arbitration award. On appeal, she contends that the Superior Court judge erred in not granting her request, pursuant to Mass.R.Civ.P. 60, 365 Mass. 828 (1974), for relief from judgment; that the judge abused his discretion in granting the defendant a default judgment; and that the default judgment is void because the judge failed to make findings required by Mass.R.Civ.P. 52, as amended, 423 Mass. 1408 (1996).
We affirm, essentially because we deem the appeal waived for failure to comply, in several substantial respects, with the appropriate rules of appellate procedure. In addition, the entry of a default and the assessment of damages in the amount of an arbitration award were appropriate where the plaintiff failed to answer the counterclaim or respond to any discovery requests, even after a motion for default had been allowed, and failed to appear for the assessment of damages hearing.
Background.
The defendant hired the plaintiff to represent him in a divorce action. He signed a standard form fee agreement containing a provision that fee disputes be arbitrated before the legal fee arbitration board of the Massachusetts Bar Association (board). The fee agreement was not signed by the plaintiff, but was provided by her to the defendant. A fee dispute arose and the defendant filed a claim for arbitration before the board. The board notified the plaintiff, who requested several extensions of the hearing; her last request asserted that she was retaining counsel for the hearing. The day before the rescheduled hearing, the plaintiff's counsel notified the board that his client would not appear because she had never “registered” with the board. The board interpreted this to mean that she had not submitted to the board a formal written agreement to arbitrate, something the board determined was not necessary in light of the arbitration provision in the fee agreement and the plaintiff's prior assent to the board's jurisdiction. The board determined to proceed with the hearing, after which it ordered the plaintiff to return $79,860 to the defendant.
Due to the inadequacies of the plaintiff's brief and appendix, most of the facts are taken from the defendant's materials and the copy of the arbitration award included as an attachment to the defendant's answer and counterclaim.
The plaintiff disputes the evidence submitted to the board concerning payments made to her by the defendant and alleges the proceedings before the board were tainted by the defendant's fraud. There is nothing before us that supports those contentions.
The plaintiff then commenced this action seeking to vacate the arbitration award; the defendant answered and counterclaimed seeking confirmation of the arbitration award. The plaintiff failed to answer the counterclaim, and seven months after it had been served, the defendant requested she be defaulted. He also filed a motion requesting that a default enter for her failure to respond to any discovery. That motion was allowed by a motion judge on October 26, 2010, and a hearing on assessment of damages was eventually held on March 10, 2011, after the granting of several requests for extension by the plaintiff. The plaintiff failed to attend the rescheduled hearing, and judgment in the amount of the arbitration award entered for the defendant that same day. The plaintiff then moved to vacate judgment, claiming she had sent a letter prior to the hearing requesting another continuance and had not heard back from the court as to the new hearing date. The motion was denied and the plaintiff filed a timely appeal from both the order of denial and from the judgment.
Discussion. The plaintiff's brief and record appendix are substantially nonconforming. Her statement of the facts has no record references and we therefore cannot rely on it. See Mass.R.A.P. 16(e), as amended, 378 Mass. 940 (1979); Cambridgeport Sav. Bank v. Binns, 5 Mass.App.Ct. 205, 205 (1977); Boston Edison Co. v. Brookline Realty & Inv. Corp., 10 Mass.App.Ct. 63, 69 (1980). The appendix contains only a few select papers, and without the defendant's supplemental appendix, it would be impossible for us to determine what occurred in this case. See Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 810–812 & nn. 4 & 5 (1992); Foley v. Foley, 27 Mass.App.Ct. 221, 225–226 (1989).
Moreover, the plaintiff's arguments are not persuasive. She argues that, pursuant to Mass.R.Civ.P. 55(b)(2), as amended, 454 Mass. 1401 (2009), she may still challenge the adequacy of the complaint at the hearing on assessment of damages. See Productura e Importadora de Papel, S.A. de C.V. v. Fleming, 376 Mass. 826, 832–833 (1978). Specifically she states, “Given the complex issues in this case and the inadequacy of [the defendant's] proof of damages, some type of hearing was called for in this case.” The argument ignores the fact that a hearing was held and the plaintiff failed to attend. Her failure to appear at the hearing or otherwise oppose the damages request constitutes a waiver of any claim of error as to that award.
In addition, she contends that there was no evidence supporting the defendant's damages claim and that the judge's findings on damages did not meet the requirements of Hermanson v. Szafarowicz, 457 Mass. 39, 48–49 (2010). As to the first point, we have no transcript of the damages hearing (although one was apparently ordered), and have no basis on which to judge the sufficiency of any evidence as to damages. See Wooldridge v. Hickey, 45 Mass.App.Ct. 637, 641 (1998); Buddy's Inc. v. Saugus, 62 Mass.App.Ct. 256, 264 (2004). We also note that the arbitration award attached as an exhibit to the defendant's answer and counterclaim would suffice to support the damages awarded.
As to the second argument, the judge's endorsement of the form of judgment submitted by the defendant, with interlineated changes, indicates the basis for his finding and is sufficient to satisfy the requirement of Hermanson, supra. In any event, given the nature of the action, to confirm or vacate an arbitration award under G.L. c. 251, §§ 11, 12, the amount of damages was not at issue.
Nor do we discern any contravention of Mass.R.Civ.P. 54(c), 365 Mass. 820 (1974).
The plaintiff makes no argument specific to her motion to vacate the judgment, other than her general assertion that she was entitled to a hearing. Any argument as to that motion therefore, is deemed waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Judgment affirmed.
Order denying motion for relief from judgment affirmed.