ALVAREZ v. RECOVERY ZONE INC (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court judge granted the defendant's motion for summary judgment in August 2021. The defendant's motion to dismiss the plaintiff's appeal was allowed by a Superior Court judge on November 9, 2021. This court sent notices of the plaintiff's failure to timely enter the appeal to the parties on November 22, 2021. On December 7, 2021, the plaintiff filed a motion in this court to docket his appeal late. A single justice of this court (first single justice) denied the plaintiff's motion on December 23, 2021. The plaintiff timely appealed the single justice's order on January 3, 2022, and on February 14, 2022, a different single justice of this court (second single justice), in response to the plaintiff filing a request for a hearing or referral to mediation, issued an order stating, in pertinent part: “This appeal is limited to the issue of whether the [first] single justice of this court properly denied the plaintiff's motion to late docket his appeal from the summary judgment entered by the Superior Court.” Thereafter, on March 4, 2022, after this court received a proposed brief, a motion to file a nonconforming brief, and an appendix from the plaintiff, the second single justice reiterated the same order that the “appeal is limited to the issue of whether the [first] single justice of this court properly denied the plaintiff's motion to late docket his appeal from the summary judgment entered by the Superior Court.” The second single justice also added: “Nonetheless, the appellant's brief and record appendix are accepted for filing. However, this order should not be construed as a waiver of the requirement to provide appropriate appellate argument and a sufficient record appendix to enable appellate review of the issue on appeal.”

We affirm the order of the first single justice denying the plaintiff's motion to docket his appeal late. The plaintiff has not addressed the dismissal order at all; his brief is completely silent on the issue and he did not file a reply brief to address the defendant's arguments regarding the first single justice's order. Any argument regarding the order denying his motion to docket his appeal late has accordingly been waived. See Abate v. Fremont Inv. & Loan, 470 Mass. 821, 833 (2015) (failure to address issue on appeal waives right to appellate review).

Order of single justice denying plaintiff's motion to docket appeal late affirmed.