JACOBS v. TOWN OF WESTON (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In October 2015, the plaintiff, Lisa Jacobs, filed a complaint against the defendant, town of Weston (town), to allow her to retrieve shrubs that she alleged belonged to her and for money damages. After Jacobs's numerous improper filings and “emergency” motions,² a Superior Court judge allowed the town's motion to dismiss the complaint with prejudice in 2019. The judge denied her subsequent motion for reconsideration. She appealed from these rulings. We vacate the judgment and remand.

Discussion. We review a ruling on a motion to dismiss de novo, accepting as true the allegations in the complaint and drawing every reasonable inference in favor of the plaintiff to determine whether the factual allegations and reasonable inferences plausibly suggest an entitlement to relief. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). We are hampered in this regard by Jacobs's complete failure to provide an adequate record for our review. See Roby v. Superintendent, Mass. Correctional Inst., Concord, 94 Mass. App. Ct. 410, 412 (2018) (“it is the appellant's responsibility to ensure that the record is adequate for appellate review” [quotation omitted] ); Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019). For example, in dismissing the complaint (a document Jacobs did not provide), the judge stated that he relied on, inter alia, Jacobs's opposition to the motion to dismiss -- another document Jacobs did not provide.

In its brief on appeal, however, the town does not rely on Jacobs's failure to provide an adequate record. Instead, it has provided some of the documents needed for our review. For example, unlike Jacobs, the town has provided us with a copy of her complaint. The town's only argument in support of its motion to dismiss is that the complaint is moot because Jacobs's shrubs have been returned, thereby obviating the need for injunctive relief. The town, however, ignores that, in paragraph 18 of the complaint, Jacobs seeks monetary relief. The town does not suggest that Jacobs has waived or otherwise withdrawn her claim for monetary relief.³ Indeed, the town does not address this issue at all. Accordingly, we are constrained to vacate the judgment and remand for further proceedings limited to Jacobs's claim for damages.⁴

We address the other claims Jacobs raises on appeal because the issues may arise in future proceedings. See Medical Malpractice Joint Underwriting Ass'n v. Commissioner of Ins., 395 Mass. 43, 51 (1985); Chira v. Planning Bd. of Tisbury, 3 Mass. App. Ct. 433, 435 (1975). Jacobs asserts that the judge should have stayed proceedings, allowed her a continuance, or appointed a “guardian”⁵ because she was in an in-patient facility in a “locked unit” from September 20, 2018, to the present and thus “could not attend the hearing.” The motion was filed, so far as we can tell from the limited record, on August 4, 2017 (long before her in-patient care is alleged to have begun). And, on August 10, 2017, the judge took no action on the motion because Jacobs was “presen[t] in the courthouse last week, [and] the court is aware that she is no longer hospitalized, obviating the need for any action on this motion in the instant case.” On the record before us, the judge did not abuse his discretion. See Botsaris v. Botsaris, 26 Mass. App. Ct. 254, 256-258 (1988).

Jacobs also contends that the judge erred in denying her request that he recuse himself. Jacobs's contention is not supported by reasoned argument or citations and does not rise to the level of appellate advocacy required under Mass. R. A. P. 16, as appearing in 481 Mass. 1628 (2019). On the record before us, we discern no error in the judge's analysis. Here, the record does not indicate “a proceeding in which his impartiality might reasonably be questioned.” Lena v. Commonwealth, 369 Mass. 571, 575 (1976), quoting S.J.C. Rule 3:25, Canon 3 (C) (1) (a), 359 Mass. 841 (1972).⁶

The judgment is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.

So ordered.

FOOTNOTES

2.   A Superior Court judge issued an order requiring all filings from Jacobs for current and future civil cases to be reviewed by the Regional Administrative Justice.

3.   On appeal, Jacobs indicates she spent $795 to hire a landscaper to transport her shrubs. She also indicates hiring an expert horticulturist for $2,500 who would have been able to testify to the value of her shrubs. Far from abandoning her claim for damages, it appears Jacobs is prepared to move forward with the same.

4.   Jacobs failed to provide any documents upon which the judge relied in considering the motion for reconsideration. See State Line Snacks Corp. v. Wilbraham, 28 Mass. App. Ct. 717, 720 (1990), citing Mass. R. A. P. 8 (b), 18 (a) and (b), as amended in relevant part, 378 Mass. 932-933, 940-941 (1979). Because we vacate the judgment, we do not reach Jacobs's appeal from the denial of this motion.

5.   Jacobs cites to no legal authority (and we are aware of none) pursuant to which the judge could have sua sponte appointed a guardian for Jacobs to pursue her civil action against the town. Cf. G. L. c. 190B, § 5-306 (factors allowing court discretion to appoint guardian); Guardianship of D.C., 479 Mass. 516, 517 (2018) (probate judge may appoint guardian only where judge finds party to be incapacitated person and makes other findings necessary under G. L. c. 190B, § 5-306).

6.   To the extent that any arguments are not expressly addressed, “they ‘have not been overlooked. We find nothing in them that requires discussion.’ ” Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).