DICKEY v. PETROS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In these related cases, the plaintiff, James Dickey, appeals from an order of a Land Court judge (i) dismissing his appeals from (ii) the denial of his motions to enlarge the time to docket his appeals from (iii) the denial of his motions for leave to file late notices of appeal from (iv) the judgments dismissing his two complaints against various entities involved in the foreclosure of mortgages on two properties in South Boston. The plaintiff has briefed the propriety of the dismissals, the denial of his motions to enlarge the time to docket the appeals, the denial of his motions for leave to file late notices of appeal, and the judgments dismissing his complaints. Although the last dismissals were in error, the prior denial of his motions to enlarge the time to docket the appeals was well within the judge's discretion. Accordingly, we affirm that denial and need not reach the plaintiff's appeals from the underlying judgments or the denial of his motions to file late notices of appeal.

1. Background. On October 27, 2016, the judge dismissed the plaintiff's complaints in both Land Court cases for failure to state a claim upon which relief may be granted. Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). The court entered judgments in both cases on November 22, 2016. The plaintiff, acting pro se, filed notices of appeal on January 20, 2017. On January 23, 2017, the plaintiff filed motions for leave to file late notices of appeal pursuant to Mass. R. A. P. 4 (c), as amended, 378 Mass. 928 (1979). On February 24, 2017, the judge denied those motions after a hearing.

On March 22, 2017, the plaintiff filed notices of appeal from the denial of his motions for leave to file late notices of appeal. Because the plaintiff did not inform the recorder that he wished to obtain transcripts for this appeal, see Mass. R. A. P. 8 (b) (3) (ii), as amended, 428 Mass. 1601 (1998),⁴ the recorder assembled the record in both cases on April 28, 2017, and sent notice of the assemblies of the record to this court and to the parties the same day. See Mass. R. A. P. 9 (d), as amended, 417 Mass. 1601 (1994). The plaintiff failed to enter the appeal in this court within ten days as required by Mass. R. A. P. 10 (a) (1), as amended, 435 Mass. 1601 (2001).

Beginning on May 24, 2017, some of the defendants filed motions to dismiss the plaintiff's latest appeals.⁵ On June 12, 2017, the plaintiff filed in the Land Court motions to enlarge the time to docket the appeals. See Mass. R. A. P. 10 (c), as amended, 417 Mass. 1602 (1994). On June 26, 2017, the judge denied those motions after a hearing and dismissed the plaintiff's appeals from the denial of his motions to file late notices of appeal.

On July 21, 2017, the plaintiff filed notices of appeal from the denial of his motions to enlarge the time to docket the appeals. The plaintiff informed the recorder that he intended to have the June 26, 2017, hearing transcribed. When no transcript was forthcoming, the judge ordered the plaintiff to show cause by January 8, 2018, why the appeal should not be dismissed because of the delay in submitting the transcript.

The transcript was completed on January 4, 2018. On January 8, 2018, the plaintiff filed the transcript with the Land Court. On August 3, 2018, the judge dismissed the appeals from the denial of the motions to enlarge the time to docket the earlier appeals, on the ground that the plaintiff had unreasonably delayed obtaining the transcript. On August 27, 2018, the plaintiff filed notices of appeal from these dismissals. This time, the plaintiff entered the appeals in this court in a timely manner.

2. Dismissal for delay in obtaining the transcript. Under the version of Mass. R. A. P. 8 in effect at the time of these events, the plaintiff was required to order a “cassette” of the June 26, 2017, hearing and designate the parts of the “cassette” to be transcribed. Mass. R. A. P. 8 (b) (3) (ii). The plaintiff could choose a transcriber or leave the choice to the recorder. See id. There is simply no indication in the record, or in the judge's findings, that the plaintiff failed to comply with this rule.

The plaintiff was also required to “forthwith perform any act reasonably necessary to enable the clerk to assemble the record.” Mass. R. A. P. 9 (c) (1), as amended, 378 Mass. 935 (1979). The judge found that the plaintiff “has not responded to several inquiries from the Recorder's office,” and thus failed to comply with this duty. Nonetheless, “[i]f, prior to the lower court's hearing such motion [to dismiss] for noncompliance with Rule 9(c), the appellant shall have cured the noncompliance, the appellant's compliance shall be deemed timely.” Mass. R. A. P. 10 (c). The judge gave the plaintiff until January 8, 2018, to explain his failure to provide the transcript of the June 26, 2017, hearing. On that date, the plaintiff filed the transcript, thus curing the noncompliance, and allowing the recorder to assemble the record. Accordingly, his compliance should have been deemed timely, and dismissal was in error. See South Boston Elderly Residences, Inc. v. Moynahan, 88 Mass. App. Ct. 742, 743 (2015).

3. Dismissal for failure to docket the appeal in a timely manner. Because the plaintiff's appeal from the denial of his motions to enlarge the time to docket the appeals should not have been dismissed, we now turn to the propriety of that denial. Under Mass. R. A. P. 10 (a) (1), an appellant in a civil case must docket the appeal by paying the docket fee within ten days after the trial court assembles the record. If the appellant fails to do so, either a trial court judge or a single justice of this court may allow a late docketing upon the appellant's motion. Mass. R. A. P. 10 (c). In such a motion, the appellant “must demonstrate that the delay was caused by excusable neglect.” Howard v. Boston Water & Sewer Comm'n, 96 Mass. App. Ct. 119, 122 (2019). We review a judge's determination that the appellant failed to show excusable neglect for an abuse of discretion. See Neuwirth v. Neuwirth, 85 Mass. App. Ct. 248, 257 (2014).

Here, the plaintiff's showing centered around his failure to receive the notice of assemblies of the record. The plaintiff stated in his motion that he had habitually had trouble receiving mail, because (1) his mailbox is one-tenth of a mile from his residence; (2) his mailing address is NewBridge Road, but his mailbox is on Water Row and Clark Road; (3) his property is “blocked off” by his grandmother; (4) his mailbox is on property owned by the Audubon Society; and (5) his mailbox is “used for batting practice by the local teens.” It should go without saying that the plaintiff had the obligation to provide the Land Court with a mailing address that was actually capable of receiving mail. In any event, even though the plaintiff was, by his own admission, aware that his mail service was spotty and he had missed receipt of notice of the entry of the underlying judgments, he told the judge at the June 26, 2017, hearing that he “was not monitoring the docket” and “never actually looked at the docket.” ⁶ Contrary to the plaintiff's argument, “we do not find excusable neglect in the ‘simple case of reliance by the parties on the clerk's duty to send notice of orders’ where they had neglected ‘their obligation to check the docket entries periodically.’ ” BJ's Wholesale Club, Inc. v. City Council of Fitchburg, 52 Mass. App. Ct. 585, 588 (2001), quoting Abbott v. John Hancock Mut. Life Ins. Co., 18 Mass. App. Ct. 508, 513 (1984).⁷ Where the plaintiff knew that the mailing address he provided to the court was not calculated to provide him with mail, the judge was well within his discretion to conclude that the plaintiff's complete failure to monitor the docket was inexcusable.

Furthermore, a judge may consider prejudice to the appellees in determining whether to allow a motion to enlarge the time to docket an appeal. See Howard, 96 Mass. App. Ct. at 122-123. Here, counsel for the defendants explained that the pendency of the appeals had already caused the new owners of one or more of the units in the properties to be unable to sell them. The prejudice to the defendants from the plaintiff's lackadaisical approach to pursuing his appeal supports the judge's determination of inexcusable neglect.⁸

4. Conclusion. Because the judge properly denied the plaintiff's motions to enlarge the time to docket the appeals, we view the plaintiff's appeals from the February 24, 2017, denial of his motions to file late notices of appeal and from the underlying judgments dated November 22, 2016, as not properly before us; to the extent that they are before us at all, they are dismissed. The judge's orders of August 3, 2018, are reversed, and the judge's orders of June 26, 2017, are affirmed.

So ordered.

affirmed in part; reversed in part

FOOTNOTES

4.   Effective March 1, 2019, Mass. R. A. P. 8, 9, and 10 were substantially amended, in many instances to conform to actual practice not reflected in the prior versions of those rules. See 481 Mass. 1601 (2019). We apply the rules as in effect at the time of these events.

5.   At that point, the plaintiff consulted with our clerk's office, which correctly advised him to file a motion with a single justice of our court. The plaintiff did not follow this advice.

6.   The plaintiff failed to include the transcript of the June 26, 2017, hearing in the appendix, but we obtained it from the Land Court.

7.   We reject the plaintiff's contention that our decision in BJ's Wholesale Club is inconsistent with Giacobbe v. First Coolidge Corp., 367 Mass. 309, 314-317 (1975), which reaffirms the authority of a single justice of the Supreme Judicial Court to extend the time to pay for the cost of reproducing the record on appeal. To the contrary, we relied upon BJ's Wholesale Club in Pierce v. Hansen Eng'g & Mach. Co., 95 Mass. App. Ct. 713, 717 (2019), and Troy Indus., Inc. v. Samson Mfg. Corp., 76 Mass. App. Ct. 575, 582 (2010).

8.   Although the judge acted within his discretion, the question is not frivolous. Accordingly, the motions of the various defendants for attorney's fees are denied. See Spivey v. Neitlich, 59 Mass. App. Ct. 742, 747 n.4 (2003).