Jimmy Smith v. Zipcar, Inc.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1192

JIMMY SMITH

vs.

ZIPCAR, INC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Jimmy Smith (Smith), appeals from a judgment

of the Superior Court challenging two orders that (1) allowed

the motion of the defendant, Zipcar, Inc. (Zipcar), to dismiss

Smith's complaint, and (2) awarded Zipcar $1,897.50 in

attorney's fees. Smith advances two arguments in support of his

claim that Zipcar's motion should have been denied and that

Zipcar should not have been awarded attorney's fees. However,

Smith, who, as the appellant, has the responsibility of

providing us with an adequate record upon which to review his

claims, failed to submit a record appendix, an addendum, or any
materials necessary to resolve the claims asserted in his brief.1

As discussed below, given the inadequacy of the record, we are

precluded from considering the merits of Smith's arguments. See

Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995).

Background. On September 12, 2019, following a sordid

history in both the Cambridge Small Claims Court and the Boston

Municipal Court, Smith filed a complaint against Zipcar in

Superior Court. On October 9, 2019, Zipcar filed a motion to

dismiss and a request for sanctions. A judge of the Superior

Court allowed Zipcar's motion to dismiss but denied its request

for sanctions.

On March 9, 2020, Smith filed a second complaint in the

Superior Court against Zipcar which is the subject of this

appeal. According to Zipcar's brief, the factual allegations in

the complaint, in their entirety, state that "Zipcar Inc. has

breached their contract with me Plaintiff by acting in bad faith

as well as terminating their duties under the contract before

any breach was adjudicated." Zipcar filed a motion to dismiss

and an accompanying request for attorney's fees, which were both

ultimately allowed by a judge of the Superior Court. Zipcar's

request for attorney's fees was premised on Smith's failure to

1 See Mass. R. A. P. 18, as appearing in 481 Mass. 1637
(2019).

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give Zipcar thirty days' written notice before filing a

complaint, as purportedly required by the contract2 between the

parties.3

Discussion. Smith's two arguments on appeal both stem from

his interpretation of the Zipcar membership contract between

himself and Zipcar. Smith first argues that he was required to

file the second Superior Court complaint to compel Zipcar to

abide by the contract and arbitrate their initial claim. He

also argues that he provided Zipcar with thirty days' notice, as

required by the contract, before he filed the second complaint,

and therefore Zipcar is not entitled to attorney's fees.

However, because Smith failed to provide us with a record

appendix containing, inter alia, the Zipcar membership contract,

the record is wholly insufficient to review the merits of his

appeal. In short, because of Smith's failure to comply with the

requirements of our appellate rules, see Mass. R. A. P. 18, as

appearing in 481 Mass. 1637 (2019), he has waived all issues

2 Neither party has provided us with a copy of the contract
in their submissions.

3 The motion judge initially deferred on Zipcar's request
for attorney's fees until after Zipcar served Smith with a
motion for an award of attorney's fees detailing the fees sought
and explaining why those fees resulted from Smith's failure to
give them contractual notice.

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raised in his appeal.

Judgment affirmed.

By the Court (Desmond,
Sacks & Brennan, JJ.4),

Clerk

Entered: May 5, 2025.

4 The panelists are listed in order of seniority.

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