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18-P-13                                                Appeals Court

             ERIC HOLMES    vs.   FAWN ANDERSEN & another.1


                              No. 18-P-13.

          Suffolk.      October 11, 2018. - November 9, 2018.

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


Practice, Civil, Attorney's fees, Costs, Appeal, Dismissal of
     appeal. Notice, Timeliness.



     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.


    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




    1   Bjorn Andersen.
                                                                     2


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.




     2 General Laws c. 231, § 6F, directs an award of fees upon a
determination, after hearing, "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."
                                                                      3


     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


     3   General Laws c. 231, § 6G, states:

     "Any party aggrieved by a decision on a motion pursuant to
     [G. L. c. 231, § 6F,] may appeal as hereinafter provided.
     If the matter arises in the superior, land, housing or
     probate court, the appeal shall be to the single justice of
     the appeals court at the next sitting thereof. If the
     matter arises in the appeals court or before a single
     justice of the supreme judicial court, the appeal shall be
     to the full bench of the supreme judicial court. The court
     deciding the appeal shall review the finding and award, if
     any, appealed from as if it were initially deciding the
                                                                  4


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 claims; we address each in turn.

    The plaintiff first contends that the ten-day appeal period

created by § 6G is actually thirteen days, by reason of the




    matter, and may withdraw or amend any finding or reduce or
    rescind any award when in its judgment the facts so
    warrant.

    "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 to the court
    for speedy decision and shall notify the parties of such
    decision, which shall be final. Any appeal to the supreme
    judicial court or the appeals court shall proceed according
    to the Massachusetts Rules of Appellate Procedure; any
    appeal to a single justice of the Appeals Court shall
    proceed under the rules for the regulation of practice
    before a single justice of that court. The payment of any
    award made pursuant to [§ 6F] shall be stayed until the
    completion of all appeals relating to the civil action in
    which the award was made."
                                                                    5


operation of Mass. R. Civ. P. 6 (d), 365 Mass. 747 (1974), which

provides that "[w]henever a party has the right or is required

to do some act or take some proceedings within a prescribed

period after the service of a notice or other papers upon him

and the notice or paper is served upon him by mail, [three] days

shall be added to the prescribed period."    As a threshold

matter, we observe that the ten-day appeal period, created by

statute, cannot be varied by court rule.    See Ben v. Schultz, 47

Mass. App. Ct. 808, 809, 815 (1999).   In any event, the rule

does not apply by its terms to the appeal period established by

§ 6G, since that statute provides that the prescribed time runs

from the date of receipt of notice, not from the date of

service.4

     The plaintiff next suggests that the appeal period should

be calculated from the date on which he received the judgment,

rather than the date on which he received the decision.5      The




     4 Even in those settings in which rule 6 (d) applies, we
note that the rule calculates additional time from the date of
service, which is complete upon mailing. See Mass. R. Civ. P. 5
(b), 365 Mass. 745 (1974). Adding three days to the date on
which the decision was mailed before starting the ten-day appeal
period would produce no benefit for the plaintiff, since the
decision was mailed on November 23, 2016, and he did not file
his notice of appeal until December 12, 2016.

     5 We note that neither § 6F nor the rules of civil procedure
make any provision for the entry of a separate judgment on an
order awarding attorney's fees under § 6F. We have held that a
§ 6F motion is a collateral proceeding, and "not a distinct
                                                                   6


argument finds no support in the language of § 6G, which

provides clearly that the appeal period runs from the date on

which the appealing party receives notice of the decision.

Moreover, the plaintiff has offered nothing to establish that he

received notice of the judgment on or after November 30, 2016,

the earliest date that would bring his notice of appeal within

the required appeal period (even were we to adopt his

suggestion).6

     Finally, there is no merit to the plaintiff's suggestion

that it would have been "more appropriate" for the single

justice, rather than the Superior Court judge, to determine the

timeliness of his notice of appeal.   It is unclear whether the

plaintiff contends that the entry of the appeal on the single

justice docket operated to deprive the Superior Court of

jurisdiction over the case, or whether he contends that only

this court may dismiss an appeal upon determination that the

notice of appeal was untimely.   The former proposition is

incorrect, in light of the well-developed body of law supporting

the propriety of staying an appeal in this court to allow the




cause of action resulting in a judgment."   Ben, 47 Mass. App.
Ct. at 814.

     6 December 12, 2016, the date on which the plaintiff filed
his notice of appeal, was a Monday, the first business day
following the tenth day after November 30, 2016. See G. L.
c. 4, § 9.
                                                                    7


trial court to address matters pending there.   See, e.g.,

Commonwealth v. Montgomery, 53 Mass. App. Ct. 350, 353-354 & n.7

(2001); Springfield Redev. Auth. v. Garcia, 44 Mass. App. Ct.

432, 434-435 (1998).   In the present case, by staying the appeal

in this court pending action on the motion to dismiss the appeal

filed in Superior Court, the single justice expressly recognized

the authority of the Superior Court judge to act on that motion.

Strictly speaking, the order of the Superior Court judge

allowing the motion to dismiss the appeal is best understood as

one striking the late-filed notice of appeal; the appeal itself

is dismissed by docket entry on this court's docket, following

the determination by the Superior Court judge that the notice of

appeal was untimely.   In any event, even if the plaintiff were

correct in his premise it would avail him nothing.   The record

before us establishes that the notice of appeal was untimely and

required dismissal of the appeal, whether by the Superior Court

judge or by a panel of this court.7,8


     7 To the extent that the plaintiff protests that he should
have been allowed to make a showing of excusable neglect to
justify an enlargement of time, the argument is misplaced; he
has presented no evidence of excusable neglect and, as we have
observed, because the appeal period is established by statute
rather than rule of court, it cannot be enlarged, regardless of
any such evidence he might present. See Ben, 47 Mass. App. Ct.
at 814-815.

     8 We decline the defendants' motion for an award of their
appellate attorney's fees. Although we have concluded that the
plaintiff's claims are without merit, we do not consider them
                                                                   8


                                   Order dismissing appeal
                                     affirmed.




frivolous. In particular, we observe that there previously was
no published appellate authority squarely addressing the
question whether the issuance of a separate (albeit superfluous)
judgment on an order for attorney's fees under § 6F would cause
the appeal period to run from receipt of it, rather than from
the fee award order itself.
