Opinion
July 24, 1991.
Present: Dolan, P.J., Hurley Lombardo, JJ.
Motor Vehicles, Used car lemon law. Practice, Civil, Motion to dismiss; Motion to extend time for filing request for report and to file draft report late; Dist./Mun. Cts. R. Civ. P., Rules 64(c)(1) and (f).
Report of court's dismissal of plaintiff's report. Action heard in the Hingham Division by Sarah B. Singer, J.
John C. Webster, III for the plaintiff.
Thomas L. Largey for the defendant.
Pursuant to G.L.c. 90, § 7N 1/4 plaintiff automobile dealer appealed to court an arbitration award in favor of a consumer under the so called "used car lemon law." Defendant consumer filed a motion to dismiss which was allowed. Plaintiff, seeking appellate review, then filed a motion under the provisions of Dist./Mun. Cts. R. Civ. P., Rule 64(c) (1) to extend time for filing a request for a report and to file a draft report late. The motion was filed more than ten days after entry of judgment, but within the ten additional days in which the trial court may extend the time for filing a request for a report upon the showing of excusable neglect. After hearing, the trial court found no excusable neglect and denied plaintiff's motion to extend time for filing.
Plaintiff now seeks a review of the trial court's denial of its motion to extend time for filing a request for a report late for excusable neglect. It filed a timely request for a report on that issue, a hearing was held, the report was established, and the parties were notified.
Rule 64(f) requires briefs to be filed within fifteen days after notice of the establishment of the report. No brief was ever filed by plaintiff and no motion for additional time to file a brief was ever submitted by plaintiff. Rule 64(f) states "The appellate division need not pass upon questions or issues not argued in briefs." Accordingly, the plaintiff's brief not being filed within fifteen days after notice, its appeal is dismissed for lack of prosecution. Little v. Ellis, 1988 Mass. App. Div. 2.
Report dismissed.