American Guarantee & Liability Insurance v. J. J. O'Brien & Sons, Inc.

1986 Mass. App. Div. 16, 1986 Mass. App. Div. LEXIS 11

• Court: Massachusetts District Court, Appellate Division
• Decided: February 21, 1986
• Status: Published

Opinion

Ruma, J.

This is an action in contract in which the plaintiff, a Workmen’s Compensation insurer, seeks to recover $26,525.00 in additional premiums from the defendant-insured.

Summary judgment was entered for the plaintiff on July 17, 1985. The defendant thereafter requested a report to this Division on a charge of error in the trial court’s denial of the defendant’s post-judgment motions for amendment of findings, a new trial and reconsideration. A report was duly settled and signed by the trial justice on November 8, 1985.

Contrary to the requirements of Dist./Mun. Cts. R. Civ. P., Rule 64 (f), no written briefs were filed by either party within fifteen days after notice of the allowance of a report. On December 6, 1985, the plaintiff-appellee filed a motion for additional time in which to submit briefs.¹ Said motion was allowed by this Division as to both parties, and the plaintiff and defendant were thereby ordered to file written briefs on or before December 26, 1986. The plaintiff properly complied with this order.

No brief has been filed, however, by the defendant-appellant. Defendant’s counsel did not request special permission to present oral argument pursuant to Dist./Mun. Cts. R. Civ. P., Rule 64 (f); did not appear at the scheduled hearing of this case; and did not apprise this Division of the defendant’s apparent sudden disinterest in pursuing its appeal.

The defendant’s failure to submit written and oral argument to this Division constitutes a forfeiture of the defendant’s right to appellate review. Eagle Tribune Publishing Co. v. Cowhey, 1985 Mass. App. Div. 106, 107; Voci v. Sears, Roebuck & Co., 1983 Mass. App. Div. 107; Friedman v. Charles, 1983 Mass. App. Div. 27, 28. Pursuant to Dist./Mun. Cts. R. Civ. P. 64 (f) and (g)², the defendant’s appeal is hereby dismissed for lack of prosecution.

Plaintiffs motion for double costs, interest and attorneys’ fees is denied..

Report dismissed.

1 prior, and clearly unauthorized, stipulation filed by the parties in a unilateral effort to extend t' , time for submitting briefs was properly ordered stricken by the trial justice.

2 “No oral argument will be heard in behalf of a party for whom briefs have not been filed as provided in this rule unless by special permission of the appellate division. The appellate division need not pass upon questions or issues not argued in briefs.... If a party whose request for a report has been allowed ... shall not prosecute the same promptly by preparing the necessary papers or otherwise as herein provided, the appellate division may... order the cause to proceed as though no such claim had been made...