Eagle Tribune Publishing Company v. John K. Cowhey

Court: Massachusetts Appellate Division, Northern District

Date: May 17, 1985

Panel: Doyle, P.J., Forte, Banks, JJ.

Judge delivering opinion: Doyle, P.J.

Factual and Procedural Background

This is an action in contract in which a default judgment was entered on March 30, 1983. On April 13, 1984—more than one year after judgment—the defendant filed a motion for relief from judgment in the trial court; that motion was denied. On July 8, 1984, the defendant moved to extend the time to file a request for a report pursuant to Dist./Mun. Cts. R. Civ. P., Rule 64(c)(1)(i); that motion was denied by the trial justice on October 4, 1984. A report challenging that ruling was settled and signed by the trial justice on February 14, 1985, and notices were issued. After that point, neither party took further action to advance or perfect an appeal to the Appellate Division.

Counsel of record: Angelo R. Fisichella for the plaintiff; Paul S. Kaplan for the defendant.

Legal Issues Presented

Whether a report should be dismissed where neither party filed the written briefs (and five copies) required by Dist./Mun. Cts. R. Civ. P., Rule 64(f), nor requested oral argument.
Whether an appeal may be dismissed under G.L. c. 231, § 108 and Dist./Mun. Cts. R. Civ. P., Rule 64(g), for failure to prosecute when the appellant fails to comply with filing-copy and filing-fee requirements (five copies of the report and the $25 filing fee imposed by G.L. c. 262, § 2).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Fortier v. Coady Corp., 1984 Mass. App. Div. 266, 267	Authority supporting that failure to file required briefs constitutes a forfeiture of the right of appeal.	Cited as examples of cases holding that failure to file briefs results in forfeiture of the right to appeal and supports dismissal of the report.
Friedman v. Charles, 1983 Mass. App. Div. 27, 28	Authority supporting that failure to file required briefs constitutes a forfeiture of the right of appeal.	Cited as an example reinforcing the principle that failure to comply with Rule 64(f) leads to forfeiture of appellate rights.
Cahill v. Town of Swampscott, Mass. App. Div. Adv. Sh. (1979) 337, 338-339	Authority supporting the forfeiture principle when required appellate briefs are not filed.	Listed among cases demonstrating that not filing briefs under Rule 64(f) results in forfeiture of appeal rights.
Hill v. Motor Club of America Ins. Co., Mass. App. Div. Adv. Sh. (1978) 646	Authority supporting the forfeiture principle when required appellate briefs are not filed.	Cited as additional precedent for the proposition that the failure to file briefs causes forfeiture of the right to appeal.
Voci v. Sears, Roebuck Co., 1983 Mass. App. Div. 107, 108	Authority supporting dismissal of an appeal for lack of prosecution under G.L. c. 231, § 108 and Rule 64 (f) and (g).	Cited to support the court's dismissal of the defendant's appeal for lack of prosecution in light of statutory and rule-based defaults.

Court's Reasoning and Analysis

The court's analysis proceeds from the procedural timeline to the governing rules and statutes and applies those authorities to the record:

Rule 64(f) of the Dist./Mun. Cts. R. Civ. P. requires that each party submit a written brief and five copies within fifteen days after notice of the allowance or establishment of a report. The rule further provides that "No oral argument will be heard in behalf of a party for whom briefs have not been filed as provided in this rule unless by special permission of the Appellate Division. The Appellate Division need not pass upon questions or issues not argued in briefs." The court relied on that text as the procedural prerequisite for appellate consideration.
In this case neither party filed the required written briefs nor requested permission for oral argument. The court treated that failure as a forfeiture of any right of appeal, relying on the line of cases cited (Fortier; Friedman; Cahill; Hill) which the court identified as support for the proposition that failure to file briefs under Rule 64(f) constitutes forfeiture.
Separately, the court noted two additional procedural defaults by the defendant-appellant: the failure to file five copies of the established report as required by Rule 64(f), and the failure to pay the $25 filing fee to the trial court clerk required by G.L. c. 262, § 2. The court observed that each omission, standing alone, could justify dismissal of the report.
The court invoked G.L. c. 231, § 108, which permits the Appellate Division, where a party claiming a report does not "duly prosecute the same, by preparing the necessary papers or otherwise," to order the cause to proceed as though no such claim had been made. The court also referenced Rule 64(g) in this context.
Applying these statutes and rules to the facts—particularly the absence of required briefs, the absence of required copies, the nonpayment of the filing fee, and the lack of any further action to advance or perfect the appeal—the court concluded dismissal was warranted for lack of prosecution. The court cited Voci v. Sears, Roebuck Co. and related authorities as support for dismissal under these circumstances.

Holding and Implications

Holding: The court dismissed the report and dismissed the defendant's appeal for lack of prosecution.

Implications: The direct consequence is that the defendant's appeal is dismissed and the report challenging the trial justice's denial of the extension/time to request a report is dismissed. The opinion bases that disposition on failure to comply with Dist./Mun. Cts. R. Civ. P., Rule 64(f) (failure to file required briefs and copies and to seek oral argument), the defendant's failure to pay the $25 filing fee under G.L. c. 262, § 2, and the authority of G.L. c. 231, § 108 and Rule 64(g) to dismiss for lack of prosecution. The opinion does not announce or discuss any broader new precedent beyond applying existing rules and cited cases; its effect is to dispose of the defendant's appeal on procedural grounds.

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Eagle Tribune Publishing Company vs. John K. Cowhey

Practice, Civil, Dist./Mun. Cts. R. Civ. P., Rule 64 (f) and (g); Requirements for perfection of appeal

Doyle, P.J.

This is an action in contract in which a default judgment was entered on March 30, 1983.

On April 13, 1984, more than one year after judgment, the defendant's motion for relief from judgment was filed and denied in the trial court.

Approximately three months later, on July 8, 1984, the defendant submitted a motion to extend the time to file a request for a report pursuant to Dist./Mun. Cts. R. Civ. P., Rule 64 (c) (1) (i). Said motion was denied by the trial justice on October 4, 1984. A report challenging this ruling was settled and signed by the trial justice on February 14, 1985, and appropriate notices were issued. No further action was taken, however, by either party to advance or perfect an appeal to this Division.

1. Rule 64(f) of the Dist./Mun. Cts. R. Civ. P. mandates that each party shall submit a written brief and five copies thereof within fifteen days after notice of the allowance or establishment of a report. Rule 64(f) further provides, in relevant part, that

No oral argument will be heard in behalf of a party for whom briefs have not been filed as provided in this rule unless by special permission of the Appellate Division. The Appellate Division need not pass upon questions or issues not argued in briefs.

Neither the plaintiff nor the defendant herein submitted a written brief or requested to be heard in oral argument. It is axiomatic that such failure constitutes a forfeiture of any right of appeal. See, e.g., Fortier v. Coady Corp., 1984 Mass. App. Div. 266, 267; Friedman v. Charles, 1983 Mass. App. Div. 27, 28; Cahill v. Town of Swampscott, Mass. App. Div. Adv. Sh. (1979) 337, 338-339; Hill v. Motor Club of America Ins. Co., Mass. App. Div. Adv. Sh. (1978) 646.

Accordingly, the report is dismissed.

2. We also note that the defendant, as appellant, not only failed to file five copies of the established report as mandated by Rule 64 (f), but also neglected to remit payment to the trial court clerk of the $25.00 filing fee imposed by G.L.c. 262 § 2. Each of these omissions may alone warrant the dismissal of a report. General Laws c. 231, § 108 provides that "[i]f the party claiming [a] report shall not duly prosecute the same, by preparing the necessary papers or otherwise, the Appellate Division may order the cause to proceed as though no such claim had been made. . . ." See also Dist./Mun. Cts. R. Civ. P., Rule 64 (g).

3. Pursuant to G.L.c. 231, § 108 and Rule 64 (f) and (g), the defendant's appeal is dismissed for lack of prosecution. See Voci v. Sears, Roebuck Co., 1983 Mass. App. Div. 107, 108 and cases cited.

EAGLE TRIBUNE PUBLISHING COMPANY v. COWHEY