A.C. v. S.E. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, A.C., obtained an extension of an abuse prevention order against the defendant, S.E., pursuant to G. L. c. 209A, § 3. After the judge denied the defendant's second motion to reconsider, the defendant appealed. We affirm.

Discussion. As a preliminary matter, we note that the defendant did not timely appeal from the extension of the abuse prevention order, which occurred on March 21, 2018. Pursuant to Mass. R. A. P. (4) (a) (1), as amended, 464 Mass. 1601 (2013),² an appeal in a civil case must be filed within thirty days of the entry of judgment. The defendant did not file a notice of appeal within those thirty days but filed, on March 26, 2018, his first motion for reconsideration. The filing of that motion, which was served within ten days from the extension of the restraining order, tolled the appeal period from the extension of the order to thirty days from April 12, 2018, when that first reconsideration motion was decided. Mass. R. A. P. (4) (a) (2) (c), as amended, 464 Mass. 1601 (2013). The defendant did not file a notice of appeal within this thirty-day period either.

On April 20, 2018, the defendant filed a second motion for reconsideration; however, because he served this motion more than ten days after the extension of the restraining order, it did not toll the time for the filing of his notice of appeal. See Plourde v. Police Dep't of Lawrence, 85 Mass. App. Ct. 178, 180 n.4 (2014) (notice of request for reconsideration served more than ten days after entry of judgment does not toll appeal period); Selby Assocs. v. Boston Redev. Auth., 27 Mass. App. Ct. 1188, 1189-1190 (1989) (noting that subsequent motion for reconsideration does not postpone time for appeal and should be regarded not as request for reconsideration of prior motion but rather another request to reconsider original judgment). Accordingly, any appeal from the orders extending the restraining order or denying the first motion for reconsideration is not properly before us. The notice of appeal the defendant filed on June 14, 2018, therefore, preserved only the defendant's appeal from the order denying his second reconsideration motion. We confine our review to the denial of that motion.

The denial of a motion for reconsideration is reviewed for an abuse of discretion. See Piedra v. Mercy Hosp., 39 Mass. App. Ct. 184, 188 (1995). However, the defendant failed to raise any legal challenges to the motion judge's denial of his reconsideration motion. See Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011) (courts unable to consider issues that lack legal argument). Rather, much like he does on appeal, the defendant attempts to relitigate in his second motion for reconsideration the facts of the underlying extension.³ Because “[t]here is no error in the denial of a motion that merely seeks, as this one did, a ‘second bite at the apple,’ ” we see no error in the judge's denial of the defendant's reconsideration motion. Liberty Square Dev. Trust v. Worcester, 441 Mass. 605, 611 (2004).⁴

Order denying motion to reconsider affirmed.

FOOTNOTES

2.   We cite to the Massachusetts Rules of Appellate Procedure in effect during the relevant time period. The rules were wholly revised, effective March 1, 2019. See Reporter's Notes to Rule 1, Mass. Ann. Laws Court Rules, Rules of Appellate Procedure, at 446 (LexisNexis 2019). The substantive requirements of rule 4 (a) (1), at issue in this case, are unchanged. See Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019).

3.   In his attempts to relitigate these issues, the defendant argues that the accusations made by the plaintiff and a witness were insufficient to justify the extension because the plaintiff and the plaintiff's witness were not credible. “It was for the judge to evaluate the credibility of the witnesses who testified at the hearing.” Commonwealth v. Lazarovich, 410 Mass. 466, 478 (1991). Thus, this panel is “in no position to substitute our judgment for that of the judge on credibility questions.” Commonwealth v. Werner, 81 Mass. App. Ct. 689, 698 (2012).

4.   Any challenge to judge's failure to hold a hearing on the reconsideration motion is also meritless. “A judge's conclusion that a motion for new trial and the accompanying affidavits do not raise a substantial issue such that a hearing is required is entitled to substantial deference.” Commonwealth v. Bogannam, 50 Mass. App. Ct. 913, 914 (2001). Because the motion for reconsideration attempted to relitigate issues that were raised or could have been raised previously, we see no abuse of that substantial discretion. Id. In addition, to the extent that the defendant contends that Chelsea Division of the District Court Department was not the proper venue, the motion judge could have properly deemed the issue -- which the defendant did not raise during the proceedings -- waived. See M.B. v. J.B., 86 Mass. App. Ct. 108, 115 (2014) (“Venue may be waived if not timely raised”).