Murdock v. Main Street Auto Sales & Service, Inc.

1987 Mass. App. Div. 216, 1987 Mass. App. Div. LEXIS 64

• Court: Massachusetts District Court, Appellate Division
• Decided: December 28, 1987
• Status: Published

Opinion

Forte, J.

This action is before the Appellate Division on a petition to establish a report.

The controversy arose when the defendant repossessed a motor vehicle it had sold to the plaintiff.

There was a trial on a complaint in three counts: Count I for determination of plaintiffs contractual rights, Count II for damages for loss or use of a repossessed car, and Count III for damages based upon G. L. c. 93A.

Thereafter, the trial judge made and filed findings on Counts I and II for the plaintiff, but as of this date no findings have been made on Count III.

Within ten days of the filing of the findings on Count I and II, the defendant filed a draft report, claiming to be aggrieved by denials and/or inaction on certain requests for rulings.

Thereafter, a hearing was conducted on the draft report. Because no report was settled within three months of the filing of the draft report, the defendant filed a petition to establish a report. Dist./Mun. Cts. R. Civ. P., Rule 64(c) (5). See Hough v. City of Newton, 1985 Mass. App. Div 8.

The petition must be dismissed as premature.

Since no findings have been made on Count III (the c.- 93A count), the action is not ripe for judgment. No motion for separate judgment was filed or ordered pursuant to Dist./Mun. Cts. R. Civ. P., Rule 54(b).

G. L. c.231, §108 reads:

“. . .any party. . .aggrieved by any ruling on a matter of law. . .may, as of right, have the ruling reported for determination by the appellate division when the cause is otherwise ripe for judgment or sooner by consent of the justice hearing the same [underlining supplied].”

Interlocutory rulings will not be considered until the case is ripe for judgment. Pollack v. Kelly, 372 Mass. 469( 1977) unless reported by the judge. Dist./Mun. Cts. R. Civ. P., Rule 64(d). Here the judge has not so reported an issue.

This petition to establish a report is dismissed as premature and the action is returned for findings on Count III and for entry of judgment. An aggrieved party will then have ten (10) days after entry of judgment to file a draft report. Report dismissed.