Opinion
14-P-1353
08-05-2015
BROADWAY NATIONAL BANK v. CAMILLE SAWYER & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants in this case appeal from the dismissal of their appeal by the Appellate Division of the District Court for failure to comply with Dist./Mun.Cts. Appellate Division Appeal Rule 8C (2013). We review the dismissal for an abuse of discretion. See Spivey v. Neitlich, 59 Mass. App. Ct. 742, 744 (2003).
Rule 8C(b) requires an appellant within thirty days of filing a notice of appeal to file a document in the trial court which "consist[s] of a statement that the party intends to proceed under [rule 8C], and, if a transcript will be necessary, shall also include a request for a cassette copy of the electronic recording of the trial proceedings . . . unless such request was previously included with the notice of appeal."
It is undisputed in this case that the defendants did not file such a document with the trial court within the time limit of the appellate rules. Nor did the defendants, before the above time limit passed, file a motion establishing "good cause" for an extension to comply with that time requirement, which is provided for under Dist./Mun.Cts. Appellate Division Appeal Rule 14(b) (1994).
As the Appellate Division did, we assume the defendants adequately expressed their intention to proceed under rule 8C in their notice of appeal.
In this current appeal, the defendants argue the following. Their appeal to the Appellate Division, in addition to substantive arguments, included an objection to their $10,000 appeal bond ordered by the trial court (this bond was in fact reduced on appeal to $1,500 per month). Their substantive appeal could not proceed until the appeal bond was established, see G. L. c. 239, § 5(c). Therefore they "cannot be required to pay the costs for the ordering of a recording that will form the basis of a transcript for an appeal until a bond amount is established." The Appellate Division rejected this argument, concluding that the filing of an appeal from a trial court order setting an appeal bond did not automatically stay the timetable of rule 8C in summary process cases such as the one here.
We agree that that must be the general rule. Otherwise, a party could delay proceedings by appealing a reasonable appeal bond order, although we note that Dist./Mun.Cts. Appellate Division Appeal Rule 25 (1994) provides the Appellate Division with authority to order sanctions for frivolous appeals, including single or double costs and interest on the judgment, so this concern should not be overstated. It is possible that in some circumstances, the appeal of an appeal bond's amount may amount to "good cause" under rule 14(b), justifying an extension of time for compliance with rule 8C. The "good cause" would be to prevent the following dilemma: appellants faced with unreasonably high appeal bonds -- meaning they cannot afford them, but they are unsure if the amounts will be reduced on appeal -- should not be forced, to preserve their substantive appellate rights, to pay for a transcript in the interim.
In this case, the Appellate Division did, in fact, reduce the appeal bond, and the defendants requested a transcript less than two weeks after that. However, this request came nearly three months after they had filed their notice of appeal, in violation of rule 8C(b).
Had the defendants filed a rule 14(b) motion to extend the thirty-day limit before it expired, their argument would be stronger. Here, however, their request for extension of time occurred much later than that, appearing with their response to the plaintiff's motion to dismiss for failure to comply with the appellate rules. As such, although we might not have reached the same conclusion, we cannot rightfully say that the Appellate Division's decision to dismiss the appeal due to noncompliance with rule 8C was an abuse of discretion. The plaintiff's request for appellate attorney's fees and costs is denied.
Decision and order of Appellate Division affirmed.
By the Court (Grainger, Rubin & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 5, 2015.