## Facts

- Mary Moriarty and TMJ Enterprises, Inc. (collectively, Moriarty) sought to sell a liquor store business and entered an exclusive listing arrangement with Oxford Business Brokers, Inc. (Oxford).
- Oxford procured a prospective buyer, and Moriarty and the buyer signed an offer to purchase in June 2005.
- The offer contemplated a September closing and provided for a 10% commission payable to Oxford upon closing.
- The transaction was conditioned on the buyer obtaining financing by August and meeting deposit requirements stated in the agreement.
- The buyer did not obtain financing and withdrew from the deal.
- Oxford sued in the Framingham Division of the District Court Department seeking to recover the broker’s commission (and related relief) based on Moriarty’s failure to proceed with the sale.
- After a bench trial, the judge found no evidence that the buyer obtained financing or paid the full deposit required by the agreement, and judgment entered against Oxford on September 17, 2012.
- Oxford filed a postjudgment motion on September 25, 2012, labeled as a motion for relief from judgment and “Reconsideration, Alteration, Amendment, Clarification, and/or New Trial,” which tolled the appeal period while pending.
- The motion was taken under advisement on December 3, 2012; the docket reflected a denial entered on December 14, 2012, but notice of that denial was not sent until June 11, 2013.
- Between December 2012 and June 2013, Oxford’s counsel contacted the clerk’s office multiple times and was told the motion remained under consideration and that notice would be sent when a decision issued.
- Oxford moved to file a late appeal on July 1, 2013; the trial court allowed the motion on July 3, 2013. Defendants later challenged timeliness, including in the Appellate Division.
- Oxford proceeded in the Appellate Division under the expedited-appeal procedure (Dist./Mun. Cts. R.A.D.A. 8A) with a limited record.

## Issues

1. Whether the Appellate Division had jurisdiction to hear the appeal where the docket showed the postjudgment motion denied on December 14, 2012 and Oxford’s request for a late appeal was filed after the 180-day outer limit in Dist./Mun. Cts. R.A.D.A. 14(b), but notice was delayed and counsel reasonably relied on clerk’s-office statements that the motion was still pending.
2. Whether Oxford showed reversible error in the judgment against its commission claim where Oxford provided an abbreviated appellate record that did not permit meaningful review of the trial judge’s findings and rulings.

## Decision

- The Appellate Division held it had jurisdiction despite the apparent 180-day problem because the circumstances surrounding the delayed notice and the clerk’s-office responses rebutted the usual assumption that the denial was effectively “entered” on the earlier docket date for appeal-timing purposes.
- Treating the appeal as properly before it in these unusual circumstances (including consideration of nunc pro tunc treatment of entry), the court reached the merits.
- On the merits, the Appellate Division dismissed Oxford’s appeal because Oxford failed to furnish a record adequate to evaluate its claims of error.
- The dismissal left undisturbed the District Court judgment for Moriarty and TMJ Enterprises, Inc.

## Legal Principles

- A timely postjudgment motion suspends the time to appeal until the trial court rules on that motion. Dist./Mun. Cts. R.A.D.A. 4(a).
- Under Dist./Mun. Cts. R.A.D.A. 14(b), a court may not extend the time to appeal beyond 180 days from the date of entry of the judgment or order to be reviewed; however, in unusual circumstances involving court-caused notice failures and reasonable reliance on clerk’s-office statements, the presumption that an order was effectively “entered” on the docketed date may be rebutted for jurisdictional analysis.
- While docket entries generally control, a court may, in rare situations, treat an entry as having effect nunc pro tunc when the record shows court-related fault in notice or entry practices.
- An appellant must provide a full and adequate record that permits appellate review; error is not assumed from a silent or incomplete record, and failure to supply necessary transcripts, exhibits, or findings can result in dismissal or affirmance.
- Where a broker’s right to a commission is conditioned on specified events (such as financing, deposit, and closing), the claimant must prove the conditions triggering payment occurred; absent that showing, judgment for the seller may stand.

## Conclusion

Oxford Business Brokers, Inc. v. Moriarty holds that the Appellate Division could exercise jurisdiction over an appeal that appeared untimely on the docket where delayed court notice and repeated clerk’s-office statements reasonably misled counsel about the status of a postjudgment motion, but it dismissed the appeal because Oxford did not provide an appellate record sufficient to demonstrate trial-court error, leaving the defendants’ judgment in place.


Oxford Business Brokers, Inc. v. Moriarty, 2014 Mass. App. Div. 130 (2014)