Luiz v. Bird Roofing Products, Inc.

1998 Mass. App. Div. 199

• Court: Massachusetts District Court, Appellate Division
• Decided: October 15, 1998
• Status: Published

Opinion

•Crimmins, J.

Defendant Bird Roofing Company (hereinafter “Bird”) appeals under Rule 8A of the Dist./Mun. Cts. R. A D. A from judgment on a count grounded in breach of implied warranty. At trial, plaintiffs Joseph S. Luiz, III and Jose A Vargas claimed that Bird’s roofing shingles were defective. Bird claims that judgment for plaintiffs is barred by the statute of limitations contained in M.G.L.C. 106, §2-725, and, alternatively, that the evidence did not warrant a finding for the plaintiffs.

The record appendix indicates that plaintiffs Luiz and Vargas purchased Bird’s “Mark 80” asphalt roofing shingles on or about September 10,1987 from a supplier in Waltham. The plaintiffs installed these shingles later that year on property known and numbered as 491 Faunce Corner Road, North Dartmouth. Soon after installing the defendant’s shingles, the plaintiffs experienced shingle blow-offs. The plaintiffs filed suit against Bird on August 16,1993, and included a count of breach of warranty, among other counts.

In a memorandum of decision, filed January 14, 1997, the trial judge found for defendants on Count IV of plaintiff’s complaint in the amount of Eight thousand seven hundred fifty ($8,750.00) dollars. No requests for findings of fact or rulings of law had been filed by either party.

On appeal, Bird filed a pleading captioned an “Expedited Appeal” in accordance with Dist./Mun. Cts. R. A. D. A., Rule 8A(a). However, Bird did not file — and this Court was not served — a brief, as per the submission requirements of Rule 8A appeals. When an appellant fails to file a brief, the Appellate Division may sua sponte dismiss the appeal. Dist./Mun. Cts. R. A. D. A., Rule 19(c).

We note that while appellant laid out several reasons for appeal in its “Expedited Appeal” filing, it failed, for want of a brief, to tie these arguments adequately to any ruling of law made by the trial court By not submitting a brief, appellant Bird has effectively raised no error of law for this court to decide. Compare South Shore Bank v. Stepco Precast, Inc., 1995 Mass. App. Div. 50 (Report dismissed where no accompanying brief was filed). Moreover, appellate review is also precluded by Bird’s failure to file a request for ruling that the evidence did not warrant a finding that the cause of action was not time-barred. See Macone Bros., Inc. v. Strauss, 1997 Mass. App. Div. 95.

Appeal dismissed.

So ordered.

2 See Dist/Mun. Cts. R. A D. A, Rule 8A(c) (“the appellant shall file, within twenty-five days after the filing of the expedited appeal [,] six copies of its brief’).