Heard: October 11, 2018.
action commenced in the Superior Court Department on
November 13, 2012.
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.
J. Pasquarello for the defendants.
Present: Green, C.J., Hanlon, & Maldonado, JJ.
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 dismissed the
plaintiff's appeal of such an order, on the ground that
his notice of appeal was untimely. We affirm.
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, §
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.
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
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. In pertinent part, § 6G
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
appeal from the order of dismissal, the plaintiff raises