K.C.C. v. C.D. & another.1 (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, seeking to appeal from a judgment of the Probate and Family Court, failed to timely enter his appeal and moved to enter it late. A single justice of this court denied that motion and a subsequent motion for reconsideration, and the plaintiff appealed both rulings. We affirm, as we see no abuse of discretion in the single justice's conclusion that the plaintiff lacked good cause for his late filing. See Tisei v. Building Inspector of Marlborough, 3 Mass. App. Ct. 377, 379 (1975). We thus need not address the alternative ground for the single justice's ruling: that the plaintiff's appeal presented no meritorious issue.

Background. After the plaintiff filed a complaint in equity to establish paternity, pursuant to G. L. c. 215, § 6, the judge granted summary judgment for the defendants, and the plaintiff filed a notice of appeal. Both plaintiff's trial counsel and his appellate counsel at the time ³ were listed on the docket. The Probate and Family Court register's office sent the notice of assembly of the record only to trial counsel. When trial counsel received the notice -- dated October 19, 2017, and postmarked October 20, 2017 -- she assumed appellate counsel had as well, and did not notify her.⁴ Appellate counsel did not learn until October 30, 2017, in a telephone conversation with an employee of the register's office, that the record had been assembled and notice thereof had been sent “to the parties.” Appellate counsel then filed the plaintiff's motion to enter his appeal late, which this court received on November 2, 2017.

Discussion. We review the single justice's determination that the plaintiff lacked good cause for an abuse of discretion. See Tisei, 3 Mass. App. Ct. at 378. Generally, at the time relevant here, the rules required an appellant to docket an appeal “[w]ithin ten days after receiving from the clerk of the lower court notice of assembly of the record.” Mass. R. A. P. 10 (a) (1), as amended, 435 Mass. 1601 (2001).⁵ But a single justice could allow a party to enter an appeal late “for good cause shown.” Mass. R. A. P. 14 (b), as amended, 378 Mass. 939 (1979).

Both parties agree that “the ‘good cause’ standard of rule 14(b) does not depart substantially from the ‘excusable neglect’ standard.” Commonwealth v. Barboza, 68 Mass. App. Ct. 180, 183 (2007). “The concept of excusable neglect is meant to apply to circumstances that are unique or extraordinary, not to any ‘garden-variety oversight.’ ” Shaev v. Alvord, 66 Mass. App. Ct. 910, 911 (2006), quoting Feltch v. General Rental Co., 383 Mass. 603, 613-614 (1981). The circumstances are not necessarily rendered extraordinary when “the clerk also failed to perform the duties required by the rule. An appellant cannot claim excusable neglect simply because a clerk has committed an error.” Brown v. Quinn, 406 Mass. 641, 645 (1990), citing Hawkins v. Hawkins, 397 Mass. 401, 408 (1986). Instead, such an error will support a finding of excusable neglect only if it “reasonably caused [the appellant's] failure to comply with the rules and was thus ‘not attributable to the appellant.’ ” Hawkins, 397 Mass. at 408, quoting Mailer v. Mailer, 387 Mass. 401, 406 (1982).

The plaintiff argues that the failure of the register's office to send the notice of assembly to his appellate counsel constituted “good cause” for his late filing.⁶ Although it would have been preferable if the register's office had notified all counsel of record, the fact remains that notice was sent to and received by trial counsel. The single justice concluded that “trial counsel's failure to communicate receipt of the notice of assembly to appellate counsel is not sufficient reason to warrant a finding of excusable neglect.”

The single justice properly relied on Shaev v. Alvord, 66 Mass. App. Ct. at 911-912, in which a clerk's office sent notice of the entry of judgment to the plaintiff's local counsel but not to out-of-State counsel, who had been admitted pro hac vice. When the plaintiff filed the notice of appeal late, the court found no excusable neglect, but rather “a failure of the most elementary principles of intramural communication.” Id. at 912. The same is true here.

Contrary to the plaintiff's argument, each attorney with an appearance on file for the plaintiff had (1) a duty to understand what action was required once the notice of assembly was received; and (2) a duty to ensure, in conjunction with the other attorney, that arrangements were in place to take that action in timely fashion. Trial counsel could not simply assume that appellate counsel would receive all relevant papers and take proper action on them; trial counsel also remained responsible. She had filed the original notice of appeal, and was charged with knowing all relevant rules. If she did not feel confident in that regard, she could have withdrawn her appearance when appellate counsel filed an appearance in the trial court in February of 2017, eight months before the record was assembled. Moreover, whatever trial counsel's understanding of the appellate rules, the notice of assembly itself informed trial counsel that “the appealing party must enter the case in the Supreme Judicial Court/Appeals Court for the Commonwealth within ten (10) days of the receipt of this notice.”

Although the plaintiff objects that the single justice “followed the letter of the law” in reaching her decision, the error that occurred here was neither extraordinary nor an emergency. Instead, it was precisely the type of “garden-variety oversight” that has never constituted excusable neglect. See Feltch, 383 Mass. at 614. The plaintiff's failure to timely enter his appeal was not the result of good cause. The single justice did not abuse her discretion. The orders denying the motion to docket the appeal late and the motion for reconsideration of that decision are affirmed.

So ordered.

Affirmed.

FOOTNOTES

3.   In the present appeal the plaintiff is represented by different counsel.

4.   Although the record is silent on when trial counsel received the notice, both parties, as well as the single justice, proceeded throughout on the assumption that the motion to enter the appeal was “late,” i.e., filed more than ten days after the date of receipt of the notice of assembly.

5.   The rule was amended, effective March 1, 2019, to provide that the appeal must be docketed within fourteen days after receipt of the notice of assembly of the record. See Mass. R. A. P. 10 (a) (1), as appearing in 481 Mass. 1618 (2019).

6.   The plaintiff also argues that, in effect, he himself never received notice. We think it clear in these circumstances that notice to any counsel of record must be treated as notice to the plaintiff himself. Cf. Mass. R. Dom. Rel. P. 5 (b).