Massachusetts Appellate Division, Municipal Court.
June 14, 1999.
Present: Kelly, Hershfang Meagher, JJ.
Consumer Protection, G.L.c. 93A Tort, Intentional infliction of emotional distress Damages, Statement of Practice, Civil, Dist./Mun. Cts. R. A. D. A., Rule 8A; Motion for removal to Superior Court.
Opinion reversing denial of motion for removal to Superior Court. Motion heard by Bernstein, J.
Eric P. Doyle for the plaintiff-appellee.
Howard A. Pinta for the defendant-appellant.
This expedited appeal involves the denial of a motion for removal to Superior Court pursuant to G.L.c. 231, § 104. The defendant/appellant is aggrieved by the trial court’s ruling and asserts that the demand for damages was improper and should not have affected its ability to remove the case to Superior Court
On September 22, 1994, the plaintiff/appellee, Ricardo F. Chumbiray (hereinafter “Chumbiray”), filed a three count complaint against the defendant/appellant, Central-Chrysler Plymouth Jeep Eagle (hereinafter “Central-Chrysler”), in the Boston Municipal Court Department Count I alleged violations of both G.L.c. 93A, §§ 9 11 and G.L.c. 90, § 7N 1/4; Count II alleged intentional infliction of emotional distress; and Count III requested a demand for damages of $50,000.
When Chumbiray filed his complaint, he failed to file a Statement of Damages as required by Dist./Mun. Cts. Supp. R. Civ. P., Rule 102A. Nevertheless, the Office of the Clerk Magistrate for Civil Business (hereinafter “Clerk-Magistrate”) accepted Chumbiray’s complaint and the case proceeded to trial on November 21, 1996. The court found in favor of Chumbiray on Count I only, in the amount of $11,795.36. Central-Chrysler appealed that decision to the Appellate Division. On January 9, 1998, the Appellate Division affirmed the judgment in favor of Chumbiray.
On January 15, 1998, pursuant to G.L.c. 231, § 104, Central-Chrysler filed a claim of trial by jury in the Superior Court along with payment for removal costs. Central-Chrysler maintains that the Clerk-Magistrate refused to forward the case to Superior Court because the amount of damages sought was $50,000. Central-Chrysler then filed a motion for removal to Superior Court. Said motion was denied by the trial court on January 30, 1998. Central-Chrysler is appealing that decision pursuant to Dist./Mun. Cts. R. A. D. A., Rule 8A.
Principal to this appeal is the fact that Chumbiray never filed a Statement of Damages as required by Dist./Mun. Cts. Supp. R. Civ. P., Rule 102A. Rule 102A explicitly prohibits a clerk-magistrate from accepting a complaint, cross claim or counterclaim unless it is accompanied by a Statement of Damages. In pertinent part, Rule 102A provides:
[n]o clerk-magistrate shall accept for filing any complaint,
cross claim, or counterclaim unless it is accompanied by such form. A copy of the form,
including the statement as to damages, shall be served on all other parties together with the complaint, cross claim, or counterclaim. (Emphasis added.)
Accordingly, the Clerk-Magistrate should not have accepted Chumbiray’s complaint without the requisite Statement of Damages. As a result, Rule 102A was disregarded and an incomplete complaint was allowed to proceed to trial.
Inevitably, the failure of Chumbiray to file a Statement of Damages, coupled with the Clerk-Magistrate’s error in accepting the complaint, became problematic when Central-Chrysler requested removal to Superior Court.
G.L.c. 231, § 104 establishes the claim limits for removing a case to Superior Court. The Statement of Damages governs the right to remove under G.L.c. 231, § 104. Hanlon v. Florida, 1994 Mass. App. Div. 98. In exercising his or her removal rights, a defendant is entitled to rely on the amount of damages claimed in the Statement of Damages. Gillespie v. Steiger, 1992 Mass. App. Div. 33, 34.
A Statement of Damages in excess of $25,000 would have provided proper notice to Central-Chrysler of the claim amount and of its right to remove to Superior Court. The demand of $50,000 in Count III was an inadequate basis to deny Central-Chrysler’s request for removal. Id. at 34.
Since no Statement of Damages in excess of $25,000 was filed, Central-Chrysler cannot be deemed to have forfeited or waived any statutory right to remove. Hanlon at 100. If any party is to suffer the consequences of Chumbiray’s disregard of the rules, it should be Chumbiray rather than Central-Chrysler. Id.
For the foregoing reasons, the judgment which denied Central-Chrysler’s motion for removal to Superior Court, pursuant to G.L.c. 231, § 104, is hereby reversed.