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Holmes v. Andersen

Appeals Court of Massachusetts, Suffolk

November 9, 2018

ERIC HOLMES
v.
FAWN ANDERSEN & another.[1]

          Heard: October 11, 2018.

         Civil action commenced in the Superior Court Department on November 13, 2012.

         Following 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.

          Daniel J. Pasquarello for the defendants.

          Present: Green, C.J., Hanlon, & Maldonado, JJ.

          GREEN, C.J.

         This 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.

         Background.

         This 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, § 6F.[2] 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.

         On 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 dismissal followed.

         Discussion.

         Appeals 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.[3] 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 required deadline.

         On appeal from the order of dismissal, the plaintiff raises several ...


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