425 Mass. 325 | Mass. | 1997
This appeal arises from the plaintiff’s attempt to recover attorney’s fees, interests, and costs incurred while contesting the defendants’ appeal from a judgment for the plaintiff entered in the District Court. The judgment was based on an arbitration award for the plaintiff.
Facts. In 1992, the parties executed a written contract providing for the construction of a $126,000 addition to the defendants’ home. The contract provided that all claims and
After referral the arbitrator found for the plaintiff and mailed his decision on November 19, 1993. In accordance with G. L. c. 142A, § 4 (<?), the decision stated that an appeal must be filed within twenty-one days of the mailing date of the decision.
On the plaintiff’s motion, a District Court judge entered judgment on the arbitrator’s decision and dismissed the defendants’ counterclaim, ruling that, because the defendants had voluntarily submitted to binding arbitration and later failed to comply with the time requirements for requesting an appeal, the arbitrator’s decision was final. The decision was affirmed by both the Appellate Division of the District Court and the Appeals Court, 40 Mass. App. Ct. 1109 (1996); the defendants’ application for further appellate review was denied. 422 Mass. 1108 (1996).
In its brief to the Appeals Court the plaintiff requested that attorney’s fees and costs be assessed against the defendants. Following the defendants’ unsuccessful appeals, the plaintiff moved for attorney’s fees, interests, and costs pursuant to G. L. c. 211A, § 15
Timeliness of plaintiff’s G. L. c. 231, § 6G, appeal. The plaintiff received notice of the decision of the Appeals Court denying its request for attorney’s fees on July 31, 1996. The plaintiff appealed on August 12, 1996. General Laws c. 231, § 6G, provides that an appeal must be taken within ten days after receiving notice of the decision.
The G. L. c. 231, § 6G, appeal. General Laws c. 231, § 6F, provides for the assessment of reasonable costs, including attorney’s fees, incurred in litigation against a party who has advanced defenses which are wholly insubstantial, frivolous, or not made in good faith.
Cases decided under § 6F have treated the statute’s purpose sympathetically in order that its policies may be effectuated. Brookline v. Goldstein, supra. This court has applied § 6F in awarding appellate attorney’s fees incurred in defending against frivolous appeals. Hahn v. Planning Bd. of Stoughton, 403 Mass. 332, 334, 338-339 (1988), S.C., 406 Mass. 1001, 1002 (1989). See Ashford v. Massachusetts Bay Transp. Auth., 421 Mass. 563, 568-569 (1995) (reminding litigants that improper appeals may result in sanctions under G. L. c. 231, § 6F); Pollack v. Kelly, 372 Mass. 469, 477 & n.5 (1977) (reminding litigants that G. L. c. 231, §§ 6E-6G, provide a basis for sanctions for “continued use of . . . delaying tactics in the face of settled law against the presentation of interlocutory appeals”). Furthermore §§ 6E-6G specifically include the Appeals Court within the ambit of the statute. See G. L. c. 231, §§ 6E-6G. Thus, the cryptic conclusion of the Appeals Court that “General Laws c. 231, 6F, does not apply to a judgment of the Appeals Court” was erroneous. See, e.g., Worcester v. O’Keefe, 36 Mass. App. Ct. 1109, 1109 (1994) (“The defendant’s motion for attorney’s fees incurred in his appeal to this court is allowed, the amount to be determined upon application to a single justice of the court. G. L. c. 231, §§ 6F, 6G”); Matter of a Grand Jury Subpoena, 30 Mass. App. Ct. 462, 466 (1991) (“we conclude that [a party’s] appeal is not so wholly insubstantial as to warrant the imposition of sanctions under G. L. c. 231, § 6F”); Strand v. Hubbard, 27 Mass. App. Ct. 684, 688 (1989) (“[t]he appellate court may, of course, make a determination that the appeal meets the criteria of [G. L. c. 231, § 6F] and order counsel fees to be determined in the trial court”); Cohen v. Hurley, 20 Mass. App. Ct. 439, 441 & n.2 (1985) (where appeal to single justice was frivolous, single justice had power to award party opposing appeal costs and fees pursuant to Mass. R. A. R 25, and G. L. c. 231, § 6F).
The Appeals Court has already rejected the plaintiff’s motion under G. L. c. 211 A, § 15, and Mass. R. A. P. 25, as a matter of discretion and no appeal from that decision is
The contract appeal. In claiming its appeal under G. L. c. 231, § 6G, the plaintiff attempted to include an appeal
This case is remanded to the Appeals Court or to a single justice thereof for a determination, after a hearing, whether the plaintiff is entitled to attorney’s fees and other costs of its appeal pursuant to G. L. c. 231, § 6F, and for other proceedings consistent with this opinion.
So ordered.
General Laws c. 142A, § 4 (e) states: “A contractor, subcontractor or homeowner may . . . appeal the decision of an arbitrator for a trial de novo in superior court or district court. Such appeal must be filed within twenty-one days from the issuance of such findings and shall stay any work or payment to the owner, contractor or subcontractor.”
The plaintiff, however, argues that the counterclaim containing the appeal was not even mailed to the plaintiff by December 10, 1993. In support of its argument, the plaintiff points out that the envelope received by the plaintiff’s counsel is postmarked December 13, 1993. The defendants argue that the counterclaim was mailed on December 10, 1993, to the plaintiff’s counsel and a copy of the counterclaim was hand delivered to the court on December 13, 1993.
General Laws c. 211A, § 15, provides: “If, upon the hearing of an appeal or exceptions in any proceeding, it appears that the appeal or exceptions are frivolous, immaterial or intended for delay, the appeals court may, either upon motion of a party or on its own motion, award against the appellant or excepting party double costs from the time when the appeal was
Rule 25 of the Massachusetts Rules of Appellate Procedure, as amended, 378 Mass. 925 (1979), provides: “If the appellate court shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee, and such interest on the amount of the judgment as may be allowed by law.”
At oral argument it was made clear that the plaintiff seeks only reimbursement for the attorney’s fees incurred while defending against the defendants’ appeal. No attorney’s fees are sought for the time spent preparing for and going through the arbitration proceeding.
The contract provided in pertinent part: “In the event that Owner wrongfully fails to make payment for work not in dispute in accordance with the terms of this Agreement, then Contractor shall be entitled to collect reasonable attorney’s fees and other costs of collection incurred in collecting such payments.”
The Appeals Court order also stated: “The award of legal fees under Mass. R. [A.] P. 25, and costs under G. L. c. 211A, § 15, are matters of discretion and a denial of legal fees and costs requires no explanation. Any rights under the contract were matters for the arbitrator.”
General Laws c. 231, § 6G, provides in pertinent part: “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
General Laws c. 231, § 6F, provides: “Upon motion of any party in any civil action in which a finding, verdict, decision, award, order or judgment has been made by a judge or justice or by a jury, auditor, master or other finder of fact, the court may determine, after a hearing, as a separate and distinct finding, 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. The court shall include in such finding the specific facts and reasons on which the finding is based.
“If such a finding is made with respect to a party’s claims, the court shall award to each party against whom such claims were asserted an amount representing the reasonable counsel fees and other costs and expenses incurred in defending against such claims.”
The plaintiff attempted to appeal from the denial of its motion for attorney’s fees under Mass. R. A. R 25 and G. L. c. 211A, § 15, by filing a notice of appeal. A notice of appeal, however, is proper only when an appeal is permitted by law. Mass. R. A. R 3 (a), as amended, 378 Mass. 927 (1979). General Laws c. 231, § 6G, authorizes appeals to this court from decisions rendered under G. L. c. 231, § 6R Thus, an appeal from the denial of the plaintiff’s motion under Mass. R. A. R 25 and G. L. c. 211A, § 15, is not permitted under § 6G.
A party aggrieved by the award of costs by the Appeals Court under G. L. c. 211 A, § 15, and Mass. R. A. P. 25 may seek review in this court by applying for further appellate review. Avery v. Steele, 414 Mass. 450, 451 (1993). An appeal from the denial of such a motion should follow the same course. The determination whether an appeal is frivolous is left to the sound discretion of the appellate court, id. at 455; therefore, the only issue on appeal to this court is whether the Appeals Court abused its discretion. The plaintiff argues the frivolousness issue before us but makes no claim that the Appeals Court abused its discretion. Therefore, even if it had properly claimed an appeal, the only viable issue was waived. Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). See Maillet v. ATF-Davidson Co., 407 Mass. 185, 194 (1990).
We note that § 6F requires a hearing and that after the hearing, certain factual disputes, such as whether the defendants mailed their claim on December 10, 1996, must be resolved. Certainly an appeal founded on a misrepresentation of such a crucial fact would be insubstantial, frivolous, and in bad faith under G. L. c. 231, § 6F. See Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 782 (1986).
Ordinarily an appellate court or appellate Justice “is in a far better position to evaluate the worth of the appellate work than the trial judge.” Yorke Mgt. v. Castro, 406 Mass. 17, 20 (1989).