St. Laurent v. Leduc

LoConto, J. By petition filed in this Division, the plaintiff is attempting to establish a draft report that was “denied” by the trial judge. The action taken by a trial judge on a draft report is either a “dismissal” when there has been a failure to comply with the statutes or any of the rules applicable to draft reports, Rule 64(c) (6), or “disallowed” as not conforming to the facts or for any other reason, Rule 64 (e). In this case, the plaintiffs petition must be denied because the plaintiffs petition to establish a draft report was filed beyond the time limit established under Rule 64 (c) (5). “If final action by the trial judge upon any draft report, other than upon an interlocutory matter, is not taken within three months after the filing thereof, and no petition for establishment of a report has been filed, the cause shall proceed as though no request for report had been made, unless the Appellate Division for cause shown shall allow further time.” In this case, a draft report was filed on March 18, 1994, and no action was taken within three months. Within three months, on June 13, 1994, an extension was granted by the trial judge until September 18, 1994. On that date, the trial judge “denied” the draft report. Under these circumstances, the provisions of the rule, since replaced, are automatic and the plaintiffs right to review by the Appellate Division, has lapsed. See Fleming v. Kroen, 1991 Mass. App. Div. 35, 36 and Skarani v. Healy, 1992 Mass. App. Div. 73, 74.