HARRINGTON v. CONNOR (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, John P. Harrington, filed a complaint against the defendants for defamation and conspiracy to defame. He twice amended his complaint. On April 30, 2018, a Superior Court judge allowed the defendants' motions to dismiss the second amended complaint pursuant to Mass. R. Civ. P. 12 (b) (1) and (b) (6), 365 Mass. 754 (1974). Pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974), a different Superior Court judge entered separate and final judgment for all of the defendants on July 18, 2018. Thereafter, Harrington filed a motion for reconsideration of the separate and final judgment dismissing his complaint ³ (first motion for reconsideration) as well as a motion to vacate that judgment.⁴ The first Superior Court judge denied both motions on September 25, 2018. Thereafter, Harrington had thirty days in which to file his appeal. He did not do so timely.

Instead, on October 29, 2018, Harrington submitted a motion for reconsideration of the denial of his motion to vacate the judgment as to defendants Kevin M. Sepe and Sean M. Connor (second motion for reconsideration). On March 28, 2019, the same judge denied that motion for “reasons stated in the opposition.” On April 25, 2019, Harrington filed the current appeal. We affirm.

Discussion. Generally, a notice of appeal must be filed “within 30 days of the date of the entry of the judgment, decree, appealable order, or adjudication appealed from.” Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019). However, if a motion “to alter or amend a judgment under Rule 59 or for relief from judgment under Rule 60 (b), however titled ․ is served within 10 days after entry of judgment,” the time to file an appeal “runs ․ from the entry of the order disposing of the last remaining motion.” Mass. R. A. P. 4 (a) (2), as appearing in 481 Mass. 1606-1607 (2019).

Here, Harrington's first motion for reconsideration filed on July 23, 2018, and served within ten days of the entry of judgment tolled his time to appeal. Accordingly, Harrington's thirty-day appeal deadline began to run on September 25, 2018 -- the date on which the first motion for reconsideration was denied.

Harrington, however, did not file his notice of appeal until April 25, 2019 (more than thirty days after September 25, 2018). Thus, his appeal from the judgment and from the judge's denial of the first motion for reconsideration was untimely pursuant to Mass. R. A. P. 3 (a) (4), as appearing in Mass. 481 Mass. 1603, 1606 (2019).⁵

The only issue timely appealed and thus properly before us is the denial of Harrington's second motion for reconsideration, which the judge denied for “reasons stated in the opposition.” We review a judge's denial of a motion for reconsideration for an abuse of discretion. See Piedra v. Mercy Hosp. Inc., 39 Mass. App. Ct. 184, 188 (1995). Unfortunately, Harrington has not provided the documents on which the judge relied in considering the second motion for reconsideration. We are, thus, unable to review her rulings. See State Line Snacks Corp. v. Wilbraham, 28 Mass. App. Ct. 717, 720 (1990). See also Mass. R. A. P. 8, 18, as appearing in 481 Mass. 1611, 1637 (2019). In fact, Harrington does not provide any arguments on appeal regarding the denial of his second motion for reconsideration.

To the extent the judge relied on the documents in the record on appeal, which appear to be those submitted for the first motion for reconsideration and the motion to vacate the judgment, Harrington has failed to show an abuse of discretion in denying the second motion for reconsideration. In the absence of any argument, we are unable to divine from the record any “(1) ‘changed circumstances’ such as (a) newly discovered evidence or information, or (b) a development of relevant law; or (2) a particular and demonstrable error in the original ruling or decision.” Audubon Hill S. Condominium Ass'n v. Community Ass'n Underwriters of Am. Inc., 82 Mass App. Ct. 461, 470 (2012).

Order entered March 28, 2019, denying motion for reconsideration affirmed.

Appeal from judgment entered July 18, 2018, and appeal from order entered September 27, 2018, denying motion for reconsideration dismissed.

FOOTNOTES

3.   “Or in the alternative to amend the complaint.” This motion was filed on July 23, 2018.

4.   The motion to vacate the judgment was only as to defendants Sepe and Connor. The motion to vacate was filed on August 10, 2018.

5.   While Harrington argues that his delay in responding to the motion for entry of separate and final judgment was due to his failure to receive notice of the motion (and that he was not aware that his counsel -- having only entered a special appearance -- did not receive the motion), he presents no excuse, let alone excusable neglect as to his delay in appealing from the denial of his first motion for reconsideration, at which time he was aware of the issues with his address and his counsel's limited appearance. Accordingly, neither the judge's decision entering a separate and final judgment for the defendants nor the denial of the first motion for reconsideration were appealed timely and are not properly before us. See Kellermann v. Kellermann, 390 Mass. 1007, 1008 (1984).