Opinion
14-P-896
04-08-2015
EVERMEDIA GROUP, INC. v. RAYMOND R. KRIPAITIS, JR.
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 plaintiff, Evermedia Group, Inc. (Evermedia), appeals from orders of the Superior Court that dismissed its complaint and awarded costs and fees to the defendant. Raymond R. Kripaitis, Jr. (Kripaitis) cross-appeals from an order denying his motion to dismiss Evermedia's appeal. We reverse the order denying Kripaitis's motion to dismiss the appeal.
1. Background. Evermedia sued Kripaitis for breach of contract on June 29, 2012. The judge granted Kripaitis's motion to dismiss on September 4, 2013. Evermedia filed a notice of appeal on September 13, 2013. Evermedia then filed a "Motion for Reconsideration of Judgment on Motion to Dismiss Under Mass.R.Civ.P 12(B)(6)," 365 Mass. 754 (1974), that was served on September 11, 2013, and entered on September 27, 2013. The judge's denial of the motion was entered on October 15, 2013. Evermedia did not file a new notice of appeal.
The motion was granted for lack of personal jurisdiction and failure to state a claim upon which relief can be granted.
The date of service of the motion to reconsider comes from a handwritten notation on the motion.
The judge then allowed Kripaitis's motion for costs and fees, pursuant to G. L. c. 231, § 6F, and awarded $21,525.77 in an order entered on April 9, 2014. Evermedia filed a notice of appeal from the § 6F award on April 11, 2014.
Kripaitis filed a motion to dismiss Evermedia's appeal from dismissal of the complaint on May 27, 2014. The judge denied the motion in an order entered on July 2, 2014, under the rationale that Evermedia was entitled to appeal on the merits despite procedural mistakes. Kripaitis's cross appeal followed.
In Kripaitis's motion to dismiss Evermedia's appeal from dismissal of the complaint, he did not challenge Evermedia's separate appeal from the § 6F award of costs and fees.
2. Notice of appeal. Kripaitis argues that Evermedia's appeal from the dismissal of its complaint is not properly before this court because Evermedia failed to file a new notice of appeal after the disposition of its motion for reconsideration. We agree.
A notice of appeal must be filed within thirty days of entry of the judgment from which the party is appealing. Eyster v. Pechenik, 71 Mass. App. Ct. 773, 779 (2008). Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013). Rule 4(a) further states that a motion to alter or amend a judgment, "however titled," that is served within ten days after entry of the judgment tolls the appeals period until disposition of the motion. A new notice of appeal is required. See Eyster v. Pechenik, supra at 779; Reporter's Notes to Mass.R.A.P. 4, 2013 amendment. A showing of prejudice to an appellee is not required for dismissal of an appeal for failure to comply with rule 4(a). Blackburn v. Blackburn, 22 Mass. App. Ct. 633, 634 (1986). "[W]e shall give unqualified effect to the language of [Mass.R.A.P. 4(a)], i.e., an appeal founded on a notice of appeal filed prior to disposition of a postjudgment motion under Mass.R.Civ.P. 50(b), 52(b), or 59 is a nullity and shall be dismissed." Id. at 634-635, quoting from Anthony v. Anthony, 21 Mass. App. Ct. 299, 302 (1985).
Here, the judge dismissed the complaint, and Evermedia filed a notice of appeal. Evermedia also served a motion, within ten days of entry of the judgment, that asked the judge "to reconsider its order" on dismissal. Evermedia's notice of appeal became a nullity, and the appeals period was tolled. Evermedia should have filed a new notice of appeal within thirty days of the denial of its motion to reconsider. Eyster v. Pechenik, 71 Mass. App. Ct. at 779. It did not, with the result that Evermedia's appeal should have been dismissed.
Even if we were to consider the merits, Evermedia would fare no better. Evermedia confines its argument here to the judge's finding of a failure to state a claim under Mass.R.Civ.P 12(b)(6). Evermedia does not raise any argument on the judge's other basis for dismissal, namely lack of personal jurisdiction under Mass.R.Civ.P. 12(b)(2). ("Evergreen is not appealing the dismissal for lack of personal jurisdiction.") Any argument concerning personal jurisdiction thus is waived. See Smith v. Bell Atl., 63 Mass. App. Ct. 702, 725 n.8 (2005) ("An argument that is not raised in a party's principal brief may be deemed waived"). Assuming, without deciding, that Evermedia is correct in its argument that its complaint should not have been dismissed for failure to state a claim, the motion was still properly granted. The judge could have found that no personal jurisdiction existed over Kripaitis in Massachusetts. A State court requires personal jurisdiction over a nonresident defendant. Kulko v. Superior Court of Cal., 436 U.S. 84, 91 (1978). Cepeda v. Kass, 62 Mass. App. Ct. 732, 736 (2004). The judge found that Kripaitis was a New Jersey resident, did not own property or have an office in Massachusetts, did not transact business in the State, and did not purposefully avail himself of business opportunities in the State. As such, the judge could dismiss the complaint for lack of personal jurisdiction under rule 12(b)(2). Regardless, Evermedia's failure to address this issue is fatal.
3. Appeal from award of costs. Evermedia also appeals from an award of costs and fees under G. L. c. 231, § 6F. Kripaitis contends that this appeal is also not properly before this court because the appeal from a § 6F award should have been directed to a single justice of the Appeals Court. We agree.
A judge may award costs and fees to a party upon a finding that an opposing party's claims "were wholly insubstantial, frivolous and not advanced in good faith." G. L. c. 231, § 6F. If the matter arises in Superior Court, an appeal of a § 6F award must go to a single justice of the Appeals Court within ten days of a party receiving notice of the decision. G. L. c. 231, § 6G. A panel of the Appeals Court has no jurisdiction over an appeal from an award by the trial court under § 6F. Bailey v. Shriberg, 31 Mass. App. Ct. 277, 283 (1991).
Here, Evermedia appeals from the lower court judge's § 6F award to a panel of the Appeals Court instead of a single justice, which is required under § 6G. This panel has no jurisdiction to consider Evermedia's appeal from the § 6F award, and we are compelled to dismiss it.
The order denying the defendant's motion to dismiss the appeal is reversed. A new order shall enter allowing the motion.
Kripaitis's request for appellate attorney's fees and costs is allowed. He shall, within fourteen days of the date of the rescript, file and serve a petition for attorney's fees and costs incurred on appeal, supported by an affidavit detailing such fees and costs, in accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Evermedia will have fourteen days thereafter to respond.
So ordered.
By the Court (Kantrowitz, Trainor & Fecteau, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 8, 2015.