Opinion
No. 12–P–528.
2013-06-14
Spiridon D. SPYROPOULOS v. Magalys VERDE.
The judge below made a finding of inexcusable neglect and dismissed the appeal. Because there was no alleged violation of rule 10(a), we determine only whether the judge correctly dismissed the action for failure to comply with rule 9(c). Mass.R.A.P. 9(c)(1). Nothing in the record indicates that the clerk ever made a request, but nevertheless the Supreme Judicial Court has held that the failure to comply with rule 8(b)(3)(ii) constitutes a violation of rule 9(c)(1). See Hawkins v. Hawkins, 397 Mass. 401, 405 (1986). Rule 8(b)(3)(ii), in turn, governs the procedures that an appellant must follow in arranging for transcription services when the proceeding was electronically recorded.
By the Court (TRAINOR, GRAHAM & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from the dismissal of his appeal on a finding of inexcusable neglect under Mass.R.A.P. 10(c), as amended, 417 Mass. 1602 (1994). In the underlying action, the plaintiff sued for back rent. The defendant counterclaimed and won an approximately $16,200 judgment against the plaintiff for renting to her an uninhabitable apartment. Judgment entered on June 16, 2011. The plaintiff filed a timely notice of appeal on June 27, 2011.
The underlying merits of the appeal are not before us. We only consider whether the Housing Court judge's dismissal of the appeal was proper.
The plaintiff sought the audio recording of the trial from the Housing Court's clerk's office on or about July 14, 2011. See Mass.R.A.P. 8(b)(3)(ii), as amended, 428 Mass. 1601 (1998). After receipt, the plaintiff sent the recording to a transcription service, and he received the completed transcripts in October of 2011. On December 14, 2011, the defendant moved to dismiss the appeal under Mass.R.A.P. 10(c), and a hearing on the motion was scheduled for December 22, 2011. On that date, just prior to the hearing, the plaintiff served in hand his opposition to the motion to dismiss and also filed the transcript of the trial. The hearing was then held, and the judge allowed the defendant's motion to dismiss the appeal. The plaintiff appeals. Standard of review. “We apply the abuse of discretion standard to determine whether the judge was warranted in dismissing the appeal.” Spivey v. Neitlich, 59 Mass.App.Ct. 742, 744 (2003).
The defendant argues initially that the plaintiff's appeal from the order dismissing the appeal was untimely because the plaintiff had taken the full ten days to file the notice of appeal from the underlying judgment, thus leaving him with no time remaining to file the notice of appeal from the order dismissing the appeal. That argument is untenable. A dismissal of an appeal is a final disposition of a case, and as such, an aggrieved party is afforded the right to appeal from that final decision, with a full ten days to file the notice of appeal.
Discussion.Rule 10(c) authorizes a lower court judge to dismiss an appeal, on a finding of inexcusable neglect, if the appellant fails to comply with rule 9(c), as amended, 417 Mass. 1601 (1994). The text of rule 10(c) reads as follows:
“If any appellant in a civil case shall fail to comply with Rule 9(c) or Rule 10(a)(1) or (3), the lower court may, on motion with notice by any appellee, dismiss the appeal, but only upon a finding of inexcusable neglect; otherwise, the court shall enlarge the appellant's time for taking the required action. If, prior to the lower court's hearing such motion for noncompliance with Rule 9(c), the appellant shall have cured the noncompliance, the appellant's compliance shall be deemed timely.”
The judge below made a finding of inexcusable neglect and dismissed the appeal. Because there was no alleged violation of rule 10(a), we determine only whether the judge correctly dismissed the action for failure to comply with rule 9(c).
Rule 9(c) contains two subsections. The dismissal could not have been based on rule 9(c)(2) because that subsection does not apply to “electronically recorded proceedings governed by Rule 8(b)(3),” as was the case here. See Mass.R.A.P. 9(c)(2). See also Spivey v. Neitlich, supra at 745. Accordingly, we look for a violation of rule 9(c)(1):
“In a civil or criminal case, upon request by the clerk of the lower court, the appellant shall forthwith perform any act reasonably necessary to enable the clerk to assemble the record and the clerk shall assemble a single record. The lower court or the appellate court or a single justice thereof may require the record to be assembled and the appeal to be docketed at any time.”
Mass.R.A.P. 9(c)(1). Nothing in the record indicates that the clerk ever made a request, but nevertheless the Supreme Judicial Court has held that the failure to comply with rule 8(b)(3)(ii) constitutes a violation of rule 9(c)(1). See Hawkins v. Hawkins, 397 Mass. 401, 405 (1986). Rule 8(b)(3)(ii), in turn, governs the procedures that an appellant must follow in arranging for transcription services when the proceeding was electronically recorded.
The defendant claims that the plaintiff did not comply with rule 8(b)(3)(ii), through rule 9(c)(1), because he did not timely transcribe the audio recording and file the transcript with the clerk's office. We disagree. Whether there were violations of rule 8(b)(3)(ii) or not, and whether the neglect was excusable or not, the judge had no authority to dismiss the appeal because the plaintiff cured any noncompliance with rule 8(b)(3)(ii) before the hearing. See Mass.R.A.P. 10(c) (“If, prior to the lower court's hearing such motion for noncompliance with Rule 9(c), the appellant shall have cured the noncompliance, the appellant's compliance shall be deemed timely”). From both the docket and the arguments at the motion to dismiss the appeal, it is clear that the plaintiff filed the transcript immediately before the hearing. Because he cured the noncompliance prior to the hearing, his filing of the transcript must be deemed timely. Ibid.. The judge therefore had no discretion to dismiss the appeal. See Russell v. McOwen–Hanelt, 413 Mass. 106, 110 (1992) (“[T]he judge may not dismiss the case if the appellant cures the defect before the hearing on the motion to dismiss”).
We deny the defendant's motion for appellate attorney's fees.
Order dismissing appeal reversed.