CAHN v. FLATRATE MOVING (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the dismissal of its appeal by the Appellate Division of the District Court for failure to comply with Rule 8C of the District/Municipal Courts Rules for Appellate Division Appeal (2013) (Dist./Mun. Cts. R. A. D. A.). We affirm.

Background. The plaintiff, Susannah Cahn, hired the defendant, Flatrate Moving, to move her property from Colorado to Massachusetts. Flatrate promised Cahn that it would move her belongings in a safe manner. When she arrived in Massachusetts, Cahn discovered that several items were damaged. Flatrate did not answer Cahn's repeated attempts to address her concerns. Eventually, Cahn hired counsel and sent Flatrate a G. L. c. 93A demand letter. Flatrate did not reply.

On November 17, 2017, Cahn filed a small claims complaint that subsequently was transferred to the District Court civil docket. A jury waived trial was held on March 13 and 14, 2019. On May 10, 2019, the trial judge issued a memorandum of decision finding in favor of Cahn and awarding treble damages, costs, and interest. Judgment entered on May 21, 2019, and Flatrate filed a timely notice of appeal on May 31, 2019. One day earlier, Cahn had filed a motion to amend the judgment to include attorney's fees, which Flatrate opposed. The trial judge allowed Cahn's motion on July 26, 2019. An amended judgment reflecting the award of attorney's fees entered on August 1, 2019. Flatrate filed another notice of appeal on August 12, 2019. Thereafter, Flatrate did nothing to perfect its appeal.

On December 9, 2019, Cahn filed a motion to dismiss the appeal asserting that Flatrate failed timely to designate which method of appeal it was choosing; in accordance with rule 8A, rule 8B, or rule 8C of the Dist./Mun. Cts. R. A. D. A. See Dist./Mun. Cts. R. A. D. A. 8A & 8B (1994); Dist./Mun. Cts. R. A. D. A. 8C. That same day, 119 days after filing its notice of appeal, Flatrate filed an “appeal on the record proceedings” pursuant to Rule 8C. On March 12, 2020, after hearing, the trial judge allowed Cahn's motion to dismiss. On March 24, 2020, Flatrate appealed the judge's dismissal of its appeal to the Appellate Division. On July 2, 2021, after hearing, the Appellate Division affirmed the District Court's dismissal of Flatrate's appeal. This appeal followed.

Discussion. Rule 8C of the Dist./Mun. Cts. R. A. D. A. required Flatrate to file in the District Court and serve on Cahn, within thirty days after filing the notice of appeal, a statement that it was proceeding under this rule along with a request for an electronic recording of the trial proceedings. See Dist./Mun. Cts. R. A. D. A. 8C (b). It is undisputed that Flatrate failed to comply with this requirement. Nor did Flatrate attempt to cure this failure by demonstrating “good cause” for its delay. See Dist./Mun. Cts. R. A. D. A. 14 (b) (1994). We are unpersuaded by Flatrate's argument that it timely cured this procedural defect by filing the rule 8C designation in advance of the hearing on Cahn's motion to dismiss.² Although, to the extent that the trial judge articulated his reasons for allowing the motion to dismiss, that reasoning is not part of the record, we conclude that the judge's implicit determinations (1) that Flatrate violated a procedural requirement; (2) that the violation amounted to a “serious misstep” warranting dismissal of the appeal, see Brown v. Quinn, 406 Mass. 641, 643-644 (1990); and (3) that Flatrate failed to advance good cause for an extension of time to correct the procedural noncompliance, were well supported by the record. Accordingly, we discern no abuse of discretion in the judge's dismissal of Flatrate's appeal.³ See Crystal Constr. Corp. v. Hartigan, 56 Mass. App. Ct. 324, 333 (2002).

Cahn has requested and is entitled to appellate attorney's fees. See Yorke Mgt. v. Castro, 406 Mass. 17, 19 (1989). Thus, within fourteen days following the date of issuance of the rescript in this case, Cahn may file an application for appellate attorney's fees and costs in accordance with the procedures of Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Flatrate shall have fourteen days thereafter to respond.

Decision and order of Appellate Division affirmed.

FOOTNOTES

2.   While we recognize that the Dist./Mun. R. A. D. A. are based on the Massachusetts Rules of Appellate Procedure and often parallel those rules, they are not identical to them. For example, although Mass. R. A. P. 10 (c), as appearing in 481 Mass. 1618 (2019), provides, in relevant part, “If, prior to the lower court's hearing ․ the appellant shall have cured the noncompliance, the appellant's compliance shall be deemed timely,” there is no comparable provision in the Dist./Mun. R. A. D. A.

3.   In light of our conclusion, none of Flatrate's other arguments on appeal is properly before us, and we do not address them.