Westinghouse Elec. Supply Co. v. Healy Corp.

• Decision Date: 31 January 1977
• Parties: WESTINGHOUSE ELECTRIC SUPPLY CO. v. The HEALY CORPORATION. MAPLEWOOD YARN MILLS, INC. v. Richard LEVIN et al.
• Court: Appeals Court of Massachusetts

Page 634

359 N.E.2d 634

5 Mass.App.Ct. 43

WESTINGHOUSE ELECTRIC SUPPLY CO.

v. The HEALY CORPORATION.

MAPLEWOOD YARN MILLS, INC.

v. Richard LEVIN et al.

Appeals Court of Massachusetts, Suffolk.

Argued April 12, 1976, and May 13, 1976.

Decided Jan. 31, 1977.

John R. Murphy, Framingham, for The Healy Corp.

Thomas E. Goode, Boston, for Westinghouse Electric Supply Co.

Joel O. Mazer, Chelsea, for Maplewood Yarn Mills, Inc.

Joseph Schneider, pro se.

Lionel H. Perlo and Jacob J. Locke, Boston, for Richard Levin and another submitted a brief.

Before HALE, C.J., and KEVILLE and ARMSTRONG, JJ. in Westinghouse.

Before HALE, C.J., and GRANT and ARMSTRONG, JJ. in Maplewood Yarn.

ARMSTRONG, Justice.

These two cases, which are not companion cases but are discussed together because they involve similar issues, concern the consequences of failure by appellants to comply seasonably with the requirements of the Massachusetts Rules of Appellate Procedure, concerning assembly of the record and the docketing of the appeal.

The first case is a contract action, in which the plaintiff (Westinghouse) on February 21, 1975, recovered a judgment for $17,102.50 against the defendant (Healy). Trial counsel for Healy filed its notice of appeal on February 27, 1975. Thereafter Healy engaged new counsel; and on April 18, 1975, the latter filed a motion in this court ¹ for an extension of time for ordering the transcript and assembling the record. That motion, originally denied because it failed to show good cause for the delay and a meritorious issue on appeal, see Tisei v. Building Inspector of Marlborough, --- Mass.App. ---^a, 330 N.E.2d 488 (1975), was allowed on reconsideration, and, within the time limits specified by the single justice, Healy ordered the transcript and caused the record to be assembled. On June 3, 1975, the clerk of the Superior Court for civil business in the county of Suffolk (civil clerk) sent both parties notice of assembly; Healy's copy was received on June 5. Counsel for Healy, due (as he later contended) 'to an erroneous interpretation of Rule 10² and to a misunderstanding of statements made by the (c)lerk's office,' neglected to pay to the clerk of this court the docket fee fixed by law (five dollars; see G.L. c. 262, § 4). Some time after the time for docketing the appeal had expired, Westinghouse filed a motion in the Superior Court to dismiss the appeal; the motion was allowed on July 15, 1975, 'without prejudice to the right to present (a motion for late docketing) to (the A)ppeals (C)ourt.' On July 23, 1975, Healy filed such a motion in this court, which, after hearing, was denied by a single justice on August 29, 1975. The single justice, noting that Healy had failed to comply with the requirements of appellate rules 18(b) or 19(a), 365 Mass. 865 and 867 (1974), predicated the denial of the motion on a failure to show good cause for noncompliance with the applicable rules, and specifically declined to rule on Healy's contention that the appeal presented a meritorious issue. The case is before us on Healy's appeal from the denial of its motion for late docketing of its appeal.

In the second case the plaintiff (Maplewood), a corporation, had brought an action for an accounting, alleging conversion by the defendants of corporate property. The action was dismissed by an order docketed on March 1, 1975. The plaintiff filed its notice of appeal on March 12, 1975. Delay in the preparation of the transcript led the plaintiff to file a series of motions in the Superior Court for extensions of time for (presumably) assembly of the record under Mass.R.A.P. 9(e), 365 Mass. 853 (1974), the last of which expired on December 24, 1975. On December 29, 1975, the plaintiff offered the transcript for filing, but the civil clerk refused to docket it on the ground that the time for assembly had expired. The plaintiff then filed a motion in this court, asking that the civil clerk be directed to docket the transcript and to assemble the record and issue notice thereof in accordance with the provisions of Mass.R.A.P. 9(d), 365 Mass. 852 (1974);³ alternatively, in the event that this court should determine that the relief sought could not be given, the plaintiff asked for an order permitting late assembly of the record. The motion recited that plaintiff's counsel received the transcript 'shortly before December 24, 1975, . . . and promptly undertook to review (it) for accuracy' and that the plaintiff 'believes (its claim) is meritorious.' The defendants filed written oppositions to the motion, contending that the plaintiff 'has failed to show 'cause' as required by Mass.R.A.P. 9(e).' The single justice, acting under the provisions of Rule 2:01 of the Appeals Court (as amended effective February 27, 1975, --- Mass.App. --- (1975)), see Foreign Auto Import, Inc. v. Renault Northeast, Inc., --- Mass. ---, ---^b , 326 N.E.2d 888 (1975), reported to a panel of the justices three questions which are set out in the margin. ⁴ The questions raised are basic to the mechanics of the appellate process.

The Massachusetts Rules of Appellate Procedure were 'modelled almost entirely upon the Federal Rules of Appellate Procedure.' Reporters' Notes to Mass.R.A.P. 1, appearing in Mass.Ann.Laws, Rules of Civil and Appellate Procedure 517 (1974). Like the rules of civil procedure, they are to be given 'the adjudged construction . . . given to the (corresponding provisions of the) Federal rules . . ., absent compelling reasons to the contrary or significant differences in content.' Rollins Environmental Serv. Inc. v. Superior Court, --- Mass. ---, ---^c , 330 N.E.2d 814 (1975). To the same effect, see Giacobbe v. First Coolidge Corp., --- Mass. ---, --- - --- ^d , 325 N.E.2d 922 (1975); Foreign Auto Import, Inc. v. Renault Northeast, Inc., --- Mass. ---, --- ^e , 326 N.E.2d 888 (1975); Martin v. Hall, --- Mass. ---, --- ^f , 343 N.E.2d 841 (1976); Michelson v. Aronson, --- Mass.App. ---, --- ^g , 344 N.E.2d 423 (1976).

An examination of the Federal case law which has developed from the provisions of the Federal appellate rules governing assembly and transmission of a record and the docketing of an appeal shows agreement on the following three proposition.

First, the appellant not only has the responsibility to order the transcript (or such portions thereof as are necessary to determine the appeal) within the ten days prescribed by rule ⁵ and to docket the appeal (by paying the docket fee to the clerk of the Court of Appeals within the time prescribed by rule;⁶ he also has the responsibility to cause the clerk of the District Court to assemble and transmit the record to the clerk of the Court of Appeals within the forty days prescribed by rule. ⁷ The appellant's responsibility for causing the clerk to act within the time prescribed (or within a seasonably requested and obtained extension of time ⁸ is derived from Fed.R.A.P. 11(a), which, in relevant part, reads,

'(a) Time for Transmission; Duty of Appellant. The record on appeal . . . shall be transmitted to the court of appeals within 40 days after the filing of the notice of appeal unless the time is shortened or extended by an order entered under subdivision (d) of this rule. After filing the notice of appeal the appellant shall comply with the provisions of Rule 10(b) and shall take any other action necessary to enable the clerk to assemble and transmit the record . . .' (emphasis supplied),

and from Fed.R.A.P. 12(c), which, in relevant part, reads,

'(c) Dismissal for Failure of Appellant to Cause Timely Transmission or to Docket Appeal. If the appellant shall fail to cause timely transmission of the record or to pay the docket fee if a docket fee is required, any appellee may file a motion in the court of appeals to dismiss the appeal . . .' (emphasis supplied).

These rules make it clear that, '. . . while actual transmission is the task of the district court clerk, the task is assigned to him only for the sake of the security of the record. The responsibility for assuring timely transmission is the appellant's. He should, upon filing the notice of appeal, consult with the clerk to determine what things are necessary to insure timely transmission. If for any reason it appears that the record cannot be transmitted within forty days of the date of filing the notice of appeal, the appellant should request an extension of time from the district court. . . .' 9 Moore, Federal Practice, par. 211.05, p. 1812 (2d ed. 1975). See also Pyramid Mobile Homes, Inc. v. Speake, 531 F.2d 743, 745 (5th Cir. 1976) ('The responsibility for providing an adequate record and insuring its timely transmittal rests squarely with appellant . . ..'); Business Forms Finishing Serv. Inc. v. Carson, 463 F.2d 966, 967 (7th Cir. 1971) ('It is clear that the responsibility for providing an adequate record and for insuring that it is timely transmitted to the court of appeals rests upon an appellant. . . . An appellant cannot discharge his duty merely by writing a letter to the Clerk but has a continuing responsibility to see that the record is timely transmitted to this court.').

Second, it is settled that a failure by the appellant to comply (or cause compliance) with the timetable prescribed by the appellate rules for assembly and transmission of the record and the docketing of the appeal does not deprive the Court of Appeals of jurisdiction over the appeal. Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 702--705, 67 S.Ct. 954, 91 L.Ed. 1184 (1947). Ainsworth v. Gill Glass & Fixture Co., 104 F.2d 83 (3rd Cir. 1939). Brennan v. United Fruit Co., 108 F.2d 710 (5th Cir. 1940). Pang-Tsu Mow v. Republic of China, 95 U.S.App.D.C. 131, 220 F.2d 811 (1954). United States v. Bowen, 310 F.2d 45, 47 (5th Cir. 1962). Olympic Ins. Co. v. H. D. Harrison, Inc., 413 F.2d 973 (5th Cir. 1969). This follows directly from Fed.R.A.P. 3(a), which states in part: 'Failure of an appellant to take any step other than...