Opinion
16-P-530
02-10-2017
LAWRENCE READY-MIXED CONCRETE CO. v. HERITAGE MODULAR, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant Heritage Modular, Inc. (Heritage), appeals after the entry of judgment in favor of the plaintiff Lawrence Ready-Mixed Concrete Co. (Lawrence) in the small claims session of the District Court, and the subsequent order of the Appellate Division of the District Court declining Heritage's request that the judge be required to report an issue of law to the Appellate Division.
Heritage claims that this second action in the small claims session was barred by res judicata because it allegedly concerned exactly the same invoices as the prior small claims action by Lawrence which resulted in a judgment for Heritage. In the second action, Heritage filed a motion for summary judgment seeking dismissal on this basis. The judge who heard the first action denied the motion, on the ground that Lawrence's newly alleged unpaid bills may have been for another address, and proceeded to trial. After a bench trial, the same judge ordered judgment for Lawrence against Heritage in the amount of $7,974.47. She declined to report the issue of law to the Appellate Division, and the Appellate Division denied Heritage's motion to order her to do so. Heritage then filed a notice of appeal purporting to challenge the judgment (including the denial of summary judgment), the judge's order declining to report the issue of law, and the Appellate Division "decision and order" declining to order that report.
Prior to this bench trial, a clerk-magistrate had heard the small claims case and ordered judgment for Lawrence. Heritage then appealed to the bench trial before the District Court judge.
As this matter was heard in the small claims session, there is no jurisdiction to hear an appeal from the judgment following the bench trial. See Trust Ins. Co . v. Bruce at Park Chiropractic Clinic , 430 Mass. 607, 609 (2000). In order to preserve appellate rights Heritage was required to request a pretrial transfer to the regular civil docket under Rule 4(a) of the Uniform Small Claims Rules (2009) and G. L. c. 218, § 24. Because this avenue of relief was available, Heritage cannot now request a transfer to the Supreme Judicial Court or Superior Court to pursue certiorari review. See State Bd. of Retirement v. Woodward , 446 Mass. 698, 703 (2006) (certiorari review is available only where there is "no other reasonably adequate remedy").
Heritage's right of appeal "could have been revived if ... the judge had elected to report the disputed question of law to the appellate division, ... but ... the judge elected not to report the question. The result is that this court has no jurisdiction over the [defendant]'s appeal.... The [defendant] ‘waived [its] right to appeal from any adverse rulings.’ " Fijal v. Anderson , 49 Mass. App. Ct. 903, 903 (2000), quoting from Pandey v. Ware Div. of the Dist. Ct. Dept ., 412 Mass. 1002, 1003 (1992). We apply this reasoning to both the judgment and the judge's postjudgment order declining to report the issue of law. See Fijal v. Anderson , supra ("It makes no difference that the appeal is not from the judgment ... but from the postjudgment order ...").
"The court may, in its discretion, transfer a cause begun under the [small claims] procedure to the regular civil docket for formal hearing and determination as though it had been begun by summons and complaint, and may impose terms upon such transfer." G. L. c. 218, § 24, as amended by St. 1975, c. 377, § 12.
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The only matter arguably before us is the decision of the Appellate Division. See G. L. c. 231, § 109 ("An appeal to the appeals court shall lie from the final decision of the appellate division ..."), as amended through St. 1985, c. 314, § 8; Fijal v. Anderson , 49 Mass. App. Ct. 903 (2000) (appeal from small claims action dismissed; limited jurisdiction over District Court civil judgments). See also Worldwide Commodities, Inc . v. J. Amicone Co ., 36 Mass. App. Ct. 304, 306-307 (1994) (only matter before Appeals Court was final decision of the Appellate Division, and on the record before the Appellate Division; record of underlying District Court proceedings not properly before us). See generally Commonwealth v. Drury , 79 Mass. App. Ct. 843, 846 (2011) (Appeals Court is court of limited jurisdiction; its jurisdiction is statutorily defined by G. L. c. 211A, § 10 ).
It is also far from clear that the Appellate Division "decision and order" in this matter could constitute a "final decision" subject to the statutory right of appeal to this court. Small claims proceedings are intended to be "a simple, informal and inexpensive procedure." G. L. c. 218, § 21. The right to appeal in small claims actions is therefore highly limited, as discussed above. See Trust Ins. Co . v. Bruce at Park Chiropractic Clinic , supra ; Eresian v. Hall , 442 Mass. 1022, 1023 (2004) ; Christopher v. Porter , 450 Mass. 1007, 1008-1009 (2007) ; Fijal v. Anderson , supra .
However, even if the decision and order of the Appellate Division were final and properly before us, a conclusion we do not reach, we would affirm, as there has been no showing on the limited record before us that the decision was in error. Our review of an Appellate Division decision is limited to the record before the Appellate Division which, in this matter, did not include a transcript of the trial before the District Court judge. See Worldwide Commodities, Inc . v. J. Amicone Co. , supra . In the absence of a transcript we cannot discern whether, and to what extent, the principles of res judicata applied.
Decision and order of Appellate Division affirmed .