Fijal v. Anderson

Massachusetts Appeals Court

Fijal v. Anderson

727 N.E.2d 855, 49 Mass. App. Ct. 903, 2000 Mass. App. LEXIS 315

Massachusetts Appeals Court·Decided April 28, 2000·No. No. 98-P-1825·Published·Cited by 7 cases

Opinion

The plaintiff, by electing to file his contract claim against the defendant under the small claims procedure in a District Court, waived, by the express terms of G. L. c. 218, § 23, second par., his right to a jury trial and to any appeal from any adverse ruling to the District Court jury-of-six session; and by the terms of § 23, tenth par., any right to a report to the appellate division of the District Court department. He implicitly waived any right of appeal to the Appeals Court because this court generally has jurisdiction over District Court civil appeals only from final decisions of an appellate division (G. L. c. 231, § 109), from judgments entered in civil jury-of-six sessions in certain counties (G. L. c. 218, §§ 19A, 19B), and from certain types of orders not relevant here. See, e.g., Zullo v. Goguen, 423 Mass. 679 (1996) (restraining orders under G. L. c. 209A); Jones v. Manns, 33 Mass. App. Ct. 485 (1992) (civil contempt judgments); G. L. c. 151A, § 42 (Department of Employment and Training decisions); G. L. c. 40A, § 17; Walker v. Board of Appeals of Harwich, 388 Mass. 42 (1983) (zoning board decisions). See also Pandey v. Ware Div. of the Dist. Ct. Dept., 412 Mass. 1002, 1003 (1992). The plaintiff’s right of appeal could have been revived if the defendant had filed a counterclaim, see Bischof v. Kern, 33 Mass. App. Ct. 45, 46 (1992), or if the judge had elected to report the disputed question of law to the appellate division, as she might have done given the allegedly nonuniform practice in regard to adding postjudgment interest to small claims judgments and the lengthy period that elapsed from judgment to payment in this case; but the defendant filed no counterclaim, and the judge elected not to report the question. The result is that this court has no jurisdiction over the plaintiff’s appeal. It makes no difference that the appeal is not from the judgment, which was wholly favorable to the plaintiff, but from the postjudgment order denying interest. The plaintiff “waived [his] right to appeal from any adverse rulings.” Pandey v. Ware Div. of the Dist. Ct. Dept., supra.

Appeal dismissed.

The case was submitted on briefs. Melissa P. White Ellis for the defendant. Daniel 1. Smulow, Assistant District Attorney, for the Commonwealth.

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The plaintiff, by electing to file his contract claim against the defendant under the small claims procedure in a District Court, waived, by the express terms of G. L. c. 218, § 23, second par., his right to a jury trial and to any appeal from any adverse ruling to the District Court jury-of-six session; and by the terms of § 23, tenth par., any right to a report to the appellate division of the District Court department. He implicitly waived any right of appeal to the Appeals Court because this court generally has jurisdiction over District Court civil appeals only from final decisions of an appellate division (G. L. c. 231, § 109), from judgments entered in civil jury-of-six sessions in certain counties (G. L. c. 218, §§ 19A, 19B), and from certain types of orders not relevant here. See, e.g., Zullo v. Goguen, 423 Mass. 679 (1996) (restraining orders under G. L. c. 209A); Jones v. Manns, 33 Mass. App. Ct. 485 (1992) (civil contempt judgments); G. L. c. 151A, § 42 (Department of Employment and Training decisions); G. L. c. 40A, § 17; Walker v. Board of Appeals of Harwich, 388 Mass. 42 (1983) (zoning board decisions). See also Pandey v. Ware Div. of the Dist. Ct. Dept., 412 Mass. 1002, 1003 (1992). The plaintiff’s right of appeal could have been revived if the defendant had filed a counterclaim, see Bischof v. Kern, 33 Mass. App. Ct. 45, 46 (1992), or if the judge had elected to report the disputed question of law to the appellate division, as she might have done given the allegedly nonuniform practice in regard to adding postjudgment interest to small claims judgments and the lengthy period that elapsed from judgment to payment in this case; but the defendant filed no counterclaim, and the judge elected not to report the question. The result is that this court has no jurisdiction over the plaintiff’s appeal. It makes no difference that the appeal is not from the judgment, which was wholly favorable to the plaintiff, but from the postjudgment order denying interest. The plaintiff “waived [his] right to appeal from any adverse rulings.” Pandey v. Ware Div. of the Dist. Ct. Dept., supra.

Appeal dismissed.

The case was submitted on briefs. Melissa P. White Ellis for the defendant. Daniel 1. Smulow, Assistant District Attorney, for the Commonwealth.

Fijal v. Anderson, 727 N.E.2d 855, 49 Mass. App. Ct. 903, 2000 Mass. App. LEXIS 315 (Mass. Ct. App. 2000).

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