Opinion
April 27, 1994.
Present: Dolan, P.J., Martin Welsh, JJ.
Practice, Civil, Petition to establish report; Dist./Mun. Cts. R. Civ. P., Rule 64(e).
Report of court's denial of petition to establish report. Action heard in the Dedham Division by Alch, J.
Gerald M. Kirby for the plaintiff.
Joseph B. Bertrand for defendant American Telephone Telegraph Company.
Pamela A. Smith for defendant New England Telephone Telegraph Company.
This is a petition to establish the draft report filed by defendant New England Telephone and Telegraph Company. Defendant American Telephone and Telegraph Co. also filed a petition to establish a report. Petitioners' first draft report was dismissed by the trial judge for "failure to comply with the applicable rules and statutes." See, Rule 64(c) (6), Dist./Mun. Cts. R. Civ. P. Petitioners then filed a second draft report which was not acted upon by the trial judge. This court denies the petition to establish the draft report as it was not properly before the court.
The docket reflects the following actions: on August 12, 1992, judgment was entered against defendants, New England Telephone Co. and American Telephone and Telegraph Co.; on August 24, 1992, each defendant filed a draft report; on March 29, 1993, the reports were dismissed by the trial judge; on April 5, 1993, defendant New England Telephone and Telegraph Co. filed a second draft report. The docket does not reflect any action by the trial judge as to the second draft report. On July 2, 1993, defendant New England Telephone and Telegraph filed a petition to establish the report with the Appellate Division.
In order to establish a report, the petitioner is required to file five copies of the draft report with the clerk of the Appellate Division. Rule 64(e), Dist./Mun. Cts. R. Civ. P. Arguably, the defendant followed proper procedure by filing a second draft report challenging the trial judge's dismissal of the first draft report. Arceiro v. Eagle Realty Associates, Inc., 1982 Mass. App. Div. 203. This court, however, was not provided with a copy of the second draft report from either defendant prior to or at the time of the sitting of the Appellate Division.
Whereas the Appellate Division has not been provided the required copies of the second draft report it is unable to properly review the reasons for the trial judge's dismissal of the first draft report. Accordingly, the New England Telephone and Telegraph Co. petition to establish is denied. Defendant American Telephone and Telegraph has also filed a petition to establish without filing a draft report. For the same reasons, the American Telephone and Telegraph Co. petition is denied.