Massachusetts Appellate Division, Municipal Court.
October 1, 1996
Present: Bakas Bernstein, JJ.
Practice, Civil, Motion to strike notice of appeal on record of proceedings; Dist./Mun. Cts. R. A. D. A. Rules 8A, 8B and 8C; Transcript.
Opinion allowing defendant’s motion to strike plaintiff’s notice of appeal on record of proceedings. Case heard by Kelly, J.
R. Gregory MacDonald for the plaintiff.
Virginia Lee for the defendant.
BAKAS, J.
The instant case concerns the three optional methods of appeal to the Appellate Division and the requirements to which an appellant must adhere in order to perfect an appropriate appeal.
On June 3, 1996, plaintiff Richard Wine, Trustee of Harbor Towers II Condominium Trust (“plaintiff”), having been aggrieved by findings of the trial judge, appealed said findings to the Appellate Division by Notice of Appeal and presented two issues for appellate review.[3] Subsequently, on June 24, 1996, plaintiff filed an Expedited Appeal pursuant to Rule 8A of the District/Municipal Courts Rules for Appellate Division Appeal (Rule 8A of Dist./Mun. Cts. R. A. D. A.). Defendant Tak Hing Wu, Trustee of Virtue Realty Trust (“defendant”), timely objected to plaintiff’s Expedited Appeal pursuant to Rule 8A(b) of Dist./Mun. Cts. R. A. D. A.[4] Based on defendant’s objection, plaintiff filed a Notice of Appeal on the Record of Proceedings on August 2, 1996, in accordance with Rule 8C of Dist./Mun. Cts. R. A. D. A., and represented in said notice that “[A] transcript not being necessary, no request for a cassette copy is filed herewith.” Defendant presently moves to strike plaintiff’s August 2, 1996 Notice of Appeal on the Record of Proceedings and plaintiff’s underlying appeal. For the following reasons, defendant’s Motion to Strike Appeal is allowed.
There exist three optional methods of appeal to the Appellate Division. The first method is described in Rule 8A of Dist./Mun. Cts. R. A. D. A. by what is known as an “Expedited Appeal.” This method of appeal is appropriate when the issues are limited in number and are clearly defined. It allows an appellant to promptly and specifically describe the issues for appeal.[5]
However, if the opposing party files a timely objection,
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the Expedited Appeal is automatically terminated and the appellant is precluded from proceeding under said rule. The appellant must then pursue further appellate procedure through Rule 8B or 8C of Dist./Mun. Cts. R. A. D. A.[6] Thus, the timely filing of defendant’s objections automatically precluded plaintiff from proceeding under Rule 8A of Dist./Mun. Cts. R. A. D. A.[7]
As a result of the termination of plaintiff’s proceedings under Rule 8A of Dist./Mun. Cts. R. A. D. A., plaintiff then commenced appellate proceedings pursuant to Rule 8C of Dist./Mun. Cts. R. A. D. A., “Appeal on the Record of Proceedings.” This rule provides for another method of appeal to the Appellate Division and specifically focuses on the “record of the proceedings” i.e., the transcript or a statement of evidence or proceedings when no transcript is available.[8] As Rule 8C(a) of Dist./Mun. Cts. R. A. D. A. provides, no transcript is required for appeal under this rule if the issue on appeal is based solely on the pleadings.[9] It should be noted that section (b) of said rule provides a time limit for claiming this type of appeal of thirty days from filing the notice of appeal or from termination of either of the other two methods of appeal. Furthermore, the document by which such appeal is claimed must include a proper request for a cassette copy of the tape unless such request was included with the notice of appeal. The appellant is also required to file and serve a “designation” of those portions of the taped record to be transcribed.[10]
In the instant case, the plaintiff failed to request a transcript of the court proceedings as required by Rule 8C of Dist./Mun. Cts. R. A. D. A. Such a request and the subsequent review of that transcript by the assembled justices of the Appellate Division is fundamental for proper appellate review. The burden is on the appellant to ensure that an adequate
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record exists for an appellate court to evaluate.[11]
Plaintiff’s representation that “no transcript is necessary . . .” is misplaced. An appellant may only bring an appeal without a transcript, if the appellate issues are based solely on the pleadings.[12] A review of the two appellate issues raised by the appellant reveal that neither issue is based solely on the pleadings. Rather, a thorough examination of the full transcript would be required before an appellate decision could be rendered. Accordingly, defendant’s Motion to Strike plaintiff’s Notice of Appeal on the Record Proceedings is allowed. Therefore, plaintiff’s appeal is dismissed with prejudice.
Civil Action No. 213970, judgment was entered for the defendant on May 29, 1996 by Judge Kelly. In plaintiff’s Notice of Appeal the following two issues were presented for appellate review: (1) Whether the court erred in failing to establish damages against Unit 4H of the Harbor Towers II Condominium in the amount assessed against Unit 4H of Harbor Towers II Condominium by the Harbor Towers II Condominium Trust; and (2) Whether the court erred in failing to issue an Order for the Sale of Real Estate, pursuant to G.L.c. 254, § 5A, after damages were established on January 19, 1996.