Opinion
11-P-818
03-22-2012
RENAT ISLAMOV v. IRENE TIOMKIN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury returned a verdict in favor of the plaintiff, Renat Islamov (tenant), for the amount of a security deposit paid to the defendant, Irene Tiomkin (landlord). A District Court judge, in turn, awarded the tenant treble damages, along with interest, attorney's fees, and costs. Another judge subsequently dismissed the landlord's appeal from the judgment based on her failure to comply with Rule 8C of the District/Municipal Courts Rules for Appellate Division Appeal (1994). The landlord appeals from the decision and order of the Appellate Division of the District Court Department affirming the dismissal. We affirm. Discussion. It is undisputed that the landlord filed a timely notice of appeal and the proper filing fee on August 24, 2009. Pursuant to rule 8C(b), however, to perfect her appeal the landlord was further required to file and serve a document captioned 'Appeal on the Record of Proceedings' within thirty days of that date, i.e., by September 23, 2009. On the record before us, we conclude that the Appellate Division did not err or abuse its discretion in affirming the dismissal of the landlord's appeal for failure to comply with rule 8C.
There are two documents in the record entitled 'Appeal on the Record of the Proceedings' (rule 8C designation), both of which were dated by the landlord as having been drafted on August 21, 2009. The first was date-stamped by the Gloucester division of the District Court Department on October 13, 2009, docketed that same day, and placed in the court file. In addition to it being untimely, it also lacked a certificate of service and was thus inadequate to satisfy rule 8C(b).
In addition to any other issue presented by the two documents, we note that neither complied with the requirement of rule 8C(b) that the designation contain a statement that the landlord was requesting or had already requested a cassette copy of the electronic recording of the trial.
The landlord subsequently presented a second rule 8C designation at an October 20, 2009, hearing on the tenant's motion to dismiss the landlord's appeal for failure to comply with rule 8C. As the Appellate Division noted, that document differed significantly from the one docketed and filed on October 13 in terms of caption, heading, and content. The second rule 8C designation also contained the required certificate of service and was purportedly date-stamped by the Gloucester division as having been filed on August 24, 2009. The date stamp, which was the most noticeable difference between the two rule 8C designations, looked remarkably similar to the date stamp on the landlord's August 24, 2009, notice of appeal. The purported date stamp was the only evidence of timely filing, as the August 24 rule 8C designation was neither docketed nor contained in the court file.
At the hearing on the motion to dismiss the landlord's appeal, counsel for the tenant explained that when he checked the docket before filing his motion, there was no sign of any rule 8C designation. To the extent that the landlord sought to blame the [FN3]'s office for the 'failure' to docket the disputed designation, so far as appears, every other postjudgment filing was properly docketed. Moreover, if on August 24, 2009, the landlord had obtained a date stamp on an authentic rule 8C designation, she offered no logical explanation for why she subsequently created, back-dated, and filed an entirely different designation on October 13, 2009. The District Court judge and the Appellate Division were warranted in implicitly rejecting the authenticity of the August 24 rule 8C designation.
The tenant's attorney informed the judge that up to that date, the landlord, who has proceeded pro se on appeal except for the hearing on the motion to dismiss, had not contacted him or served him with any documents, including the two rule 8C designations.
Compounding matters, the landlord failed to file and serve a 'Designation for Transcription' as required by rule 8C(c)(1). Instead, she simply filed a trial transcript with the Gloucester division on October 13, along with the first (and only) rule 8C designation that was docketed by the clerk's office and placed in the court's file. As a result, the landlord deprived the tenant of the opportunity under rule 8C both to object to the landlord's choice of transcriber and to request that the clerk select an alternate. Further, by filing the transcript with the court, the landlord also failed to direct the transcriber to send the original transcript directly to the clerk of the trial court, another requirement of rule 8C(c)(1).
Given the nature and scope of the landlord's noncompliance with the procedural rules, her missteps cannot be characterized as innocuous ones that would allow the reinstatement of her appeal, especially where she failed to make any showing of a meritorious defense on appeal. See Maciuca v. Papit, 31 Mass. App. Ct. 540, 542-546 (1991). Indeed, there is no merit to the landlord's assertion that the trial court lacked authority to dismiss the appeal. See Crystal Constr. Corp. v. Hartigan, 56 Mass. App. Ct. 324, 331 n.5 (2002).
Appellate attorney's fees. As the present appeal is frivolous, we allow the tenant's request for an award of appellate attorney's fees pursuant to Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). We likewise award double costs to the tenant from the time the appeal was taken and such interest on the amount of the judgment as may be allowed by law and as provided in Mass.R.A.P. 25 and G. L. c. 211A, § 15.
In accordance with the procedure set out in Fabre v. Walton, 441 Mass. 9, 10- 11 (2004), counsel for the tenant shall submit to this court an itemization of appellate attorney's fees within fourteen days of receipt of the present memorandum and order. Counsel shall support the request with a description of professional experience and qualifications, and shall support the itemization of fees with a description of the service, the date rendered, the amount of time involved, and the hourly rate charged. Counsel should attach to the request for fees an itemization of appellate costs.
Within fourteen days of receipt of the request for appellate attorney's fees and costs, the landlord shall submit any opposition to the requested amount.
Conclusion. We conclude, without hesitation, that the dismissal order should stand. See Mailer v. Mailer, 387 Mass. 401, 407 (1982). The decision and order of the Appellate Division is affirmed.
So ordered.
By the Court (Rapoza, C.J., Grainger & Sikora, JJ.), Clerk