Holmes v. Anderson

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18-P-13 Appeals Court
ERIC HOLMES vs. FAWN ANDERSEN & another.1
No. 18-P-13.
Suffolk. October 11, 2018. - November 9, 2018.
Present: Green, C.J., Hanlon, & Maldonado, JJ.
Practice, Civil, Attorney's fees, Costs, Appeal, Dismissal of
appeal. Notice, Timeliness.
Civil action commenced in the Superior Court Department on
November 13, 2012.
Following review by this court, 89 Mass. App. Ct. 1110
(2016), a motion for attorney's fees and costs was heard by
Heidi E. Brieger, J., and a motion to dismiss the appeal was
also heard by her.
Michael J. Traft for the plaintiff.
Daniel J. Pasquarello for the defendants.
GREEN, C.J. This appeal raises several procedural
questions concerning appeals of orders allowing attorney's fees
pursuant to G. L. c. 231, § 6F. A judge of the Superior Court
1 Bjorn Andersen.
2
dismissed the plaintiff's appeal of such an order, on the ground
that his notice of appeal was untimely. We affirm.
Background. This litigation began with the plaintiff's
complaint challenging the issuance of a building permit to the
defendants for the construction of an addition to a residence.
A judge of the Superior Court allowed the defendants' motion for
summary judgment, and a panel of this court affirmed the ensuing
judgment. See Holmes v. Andersen, 89 Mass. App. Ct. 1110
(2016). The defendants then moved for an award of attorney's
fees incurred in defense of that action, pursuant to G. L.
c. 231, § 6F.2 The judge allowed the motion and, in a memorandum
of decision and order dated November 15, 2016 (decision),
awarded attorney's fees and costs in the amount of $84,000 to
the defendants. That decision was entered on the Superior Court
docket on November 23, 2016, and was mailed to the parties the
same day. Both parties received the decision on November 28,
2016. The record also includes a separate "judgment," dated
November 23, 2016, reflecting the award of fees; it was entered
on the docket and mailed to the parties on November 28, 2016.
2 General Laws c. 231, § 6F, directs an award of fees upon a
determination, after hearing, "that all or substantially all of
the claims, defenses, setoffs or counterclaims, whether of a
factual, legal or mixed nature, made by any party who was
represented by counsel during most or all of the proceeding,
were wholly insubstantial, frivolous and not advanced in good
faith."
3
On December 12, 2016, fourteen days after receiving the
decision on the fee award, the plaintiff filed with the Superior
Court a notice of appeal from the "judgment on attorneys fees
and costs . . . and all related orders on this issue." On June
20, 2017, the Superior Court clerk sent notice of assembly of
the record and, on June 28, 2017, the appeal was entered in the
single justice session of this court. In the meantime, however,
on June 27, 2017, the defendants had filed in the Superior Court
a motion to dismiss the appeal. A single justice of this court
allowed the defendants' motion to stay the appeal, pending
action by the Superior Court on their motion to dismiss the
appeal. On September 6, 2017, the Superior Court judge allowed
the defendants' motion to dismiss the appeal. This appeal from
the order of dismissal followed.
Discussion. Appeals from an order awarding attorney's fees
under § 6F are governed by G. L. c. 231, § 6G, the provisions of
which are set out in the margin.3 In pertinent part, § 6G
3 General Laws c. 231, § 6G, states:
"Any party aggrieved by a decision on a motion pursuant to
[G. L. c. 231, § 6F,] may appeal as hereinafter provided.
If the matter arises in the superior, land, housing or
probate court, the appeal shall be to the single justice of
the appeals court at the next sitting thereof. If the
matter arises in the appeals court or before a single
justice of the supreme judicial court, the appeal shall be
to the full bench of the supreme judicial court. The court
deciding the appeal shall review the finding and award, if
any, appealed from as if it were initially deciding the
4
requires a party appealing from an order awarding attorney's
fees to file a notice of appeal from such an order "within ten
days after receiving notice of the decision thereon." In the
present case, the plaintiff received notice of the decision on
November 28, 2016; accordingly, to be timely his notice of
appeal was required to be filed by December 8, 2016. The
plaintiff filed his notice of appeal on December 12, 2016, four
days beyond the required deadline.
On appeal from the order of dismissal, the plaintiff raises
several claims; we address each in turn.
The plaintiff first contends that the ten-day appeal period
created by § 6G is actually thirteen days, by reason of the
matter, and may withdraw or amend any finding or reduce or
rescind any award when in its judgment the facts so
warrant.
"Any party may file a notice of appeal with the clerk or
register of the court hearing the motion within ten days
after receiving notice of the decision thereon. The clerk
or register shall then forward the motion, the court's
findings and award, and any other documents relevant to the
appeal to the clerk of the court deciding the appeal who,
upon receipt thereof, shall refer the matter to the court
for speedy decision and shall notify the parties of such
decision, which shall be final. Any appeal to the supreme
judicial court or the appeals court shall proceed according
to the Massachusetts Rules of Appellate Procedure; any
appeal to a single justice of the Appeals Court shall
proceed under the rules for the regulation of practice
before a single justice of that court. The payment of any
award made pursuant to [§ 6F] shall be stayed until the
completion of all appeals relating to the civil action in
which the award was made."
5
operation of Mass. R. Civ. P. 6 (d), 365 Mass. 747 (1974), which
provides that "[w]henever a party has the right or is required
to do some act or take some proceedings within a prescribed
period after the service of a notice or other papers upon him
and the notice or paper is served upon him by mail, [three] days
shall be added to the prescribed period." As a threshold
matter, we observe that the ten-day appeal period, created by
statute, cannot be varied by court rule. See Ben v. Schultz, 47
Mass. App. Ct. 808, 809, 815 (1999). In any event, the rule
does not apply by its terms to the appeal period established by
§ 6G, since that statute provides that the prescribed time runs
from the date of receipt of notice, not from the date of
service.4
The plaintiff next suggests that the appeal period should
be calculated from the date on which he received the judgment,
rather than the date on which he received the decision.5 The
4 Even in those settings in which rule 6 (d) applies, we
note that the rule calculates additional time from the date of
service, which is complete upon mailing. See Mass. R. Civ. P. 5
(b), 365 Mass. 745 (1974). Adding three days to the date on
which the decision was mailed before starting the ten-day appeal
period would produce no benefit for the plaintiff, since the
decision was mailed on November 23, 2016, and he did not file
his notice of appeal until December 12, 2016.
5 We note that neither § 6F nor the rules of civil procedure
make any provision for the entry of a separate judgment on an
order awarding attorney's fees under § 6F. We have held that a
§ 6F motion is a collateral proceeding, and "not a distinct
6
argument finds no support in the language of § 6G, which
provides clearly that the appeal period runs from the date on
which the appealing party receives notice of the decision.
Moreover, the plaintiff has offered nothing to establish that he
received notice of the judgment on or after November 30, 2016,
the earliest date that would bring his notice of appeal within
the required appeal period (even were we to adopt his
suggestion).6
Finally, there is no merit to the plaintiff's suggestion
that it would have been "more appropriate" for the single
justice, rather than the Superior Court judge, to determine the
timeliness of his notice of appeal. It is unclear whether the
plaintiff contends that the entry of the appeal on the single
justice docket operated to deprive the Superior Court of
jurisdiction over the case, or whether he contends that only
this court may dismiss an appeal upon determination that the
notice of appeal was untimely. The former proposition is
incorrect, in light of the well-developed body of law supporting
the propriety of staying an appeal in this court to allow the
cause of action resulting in a judgment." Ben, 47 Mass. App.
Ct. at 814.
6 December 12, 2016, the date on which the plaintiff filed
his notice of appeal, was a Monday, the first business day
following the tenth day after November 30, 2016. See G. L.
c. 4, § 9.
7
trial court to address matters pending there. See, e.g.,
Commonwealth v. Montgomery, 53 Mass. App. Ct. 350, 353-354 & n.7
(2001); Springfield Redev. Auth. v. Garcia, 44 Mass. App. Ct.
432, 434-435 (1998). In the present case, by staying the appeal
in this court pending action on the motion to dismiss the appeal
filed in Superior Court, the single justice expressly recognized
the authority of the Superior Court judge to act on that motion.
Strictly speaking, the order of the Superior Court judge
allowing the motion to dismiss the appeal is best understood as
one striking the late-filed notice of appeal; the appeal itself
is dismissed by docket entry on this court's docket, following
the determination by the Superior Court judge that the notice of
appeal was untimely. In any event, even if the plaintiff were
correct in his premise it would avail him nothing. The record
before us establishes that the notice of appeal was untimely and
required dismissal of the appeal, whether by the Superior Court
judge or by a panel of this court.7,8
7 To the extent that the plaintiff protests that he should
have been allowed to make a showing of excusable neglect to
justify an enlargement of time, the argument is misplaced; he
has presented no evidence of excusable neglect and, as we have
observed, because the appeal period is established by statute
rather than rule of court, it cannot be enlarged, regardless of
any such evidence he might present. See Ben, 47 Mass. App. Ct.
at 814-815.
8 We decline the defendants' motion for an award of their
appellate attorney's fees. Although we have concluded that the
plaintiff's claims are without merit, we do not consider them
8
Order dismissing appeal
affirmed.
frivolous. In particular, we observe that there previously was
no published appellate authority squarely addressing the
question whether the issuance of a separate (albeit superfluous)
judgment on an order for attorney's fees under § 6F would cause
the appeal period to run from receipt of it, rather than from
the fee award order itself.