Sandra Marie STRAWBRIDGE v. James DEVINCENT, trustee,1& another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from an order denying her motion to extend the time to file a notice of appeal from the judgment dismissing her complaint. We affirm.
On March 18, 2019, the plaintiff brought this action in the Superior Court by way of an “Original Bill in Exclusive Equity to declare and enforce Trusts” (emphasis omitted).”4 Claiming equitable title and a “priority equitable interest” in her family home located at 11 Woodland Road in Wellesley (property), she sought to enforce an alleged trust relationship between herself as beneficiary and James DeVincent as trustee of a private trust, and to enjoin DeVincent from taking possession of the property. As the plaintiff acknowledged, all of her legal rights in that property had previously been extinguished through foreclosure and summary process proceedings. See Strawbridge v. Bank of N.Y. Mellon, 91 Mass. App. Ct. 827 (2017) (affirming judgment dismissing plaintiff's complaint to stop foreclosure proceedings); DeVincent v. Strawbridge, 2018 Mass. App. Div. 203 (affirming summary process judgment in favor of DeVincent).5 Moreover, after execution for possession issued in favor of DeVincent, the plaintiff filed several unsuccessful motions and petitions with our trial and appellate courts seeking a stay.6 On March 21, 2019, the plaintiff was evicted from the property by a constable.7
A judgment dismissing the first amended complaint entered on November 26, 2019. See Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). The plaintiff did not file a timely notice of appeal. On January 27, 2020, a judge denied the plaintiff's motion for leave to file a late notice of appeal, pursuant to Mass. R. A. P. 4 (c), as appearing in 481 Mass. 1607 (2019).
We discern no abuse of discretion in the denial of the plaintiff's rule 4 (c) motion. See Pierce v. Hansen Eng'g & Mach. Co., 95 Mass. App. Ct. 713, 715 (2019). A judge may not allow a motion for leave to file a notice of appeal late absent a showing of excusable neglect. Shaev v. Alvord, 66 Mass. App. Ct. 910 (2006). As grounds for missing the thirty-day deadline, the plaintiff claimed that “[d]uring the 30 day period after dismissal [she] suffered injury which required a visit to hospital emergency care, and related circumstances caused delay.” No additional details were provided.8 The only documentation submitted by the plaintiff was a doctor's note stating she was seen in the Beth Israel Deaconess Needham emergency room on December 23, 2019, for an undisclosed reason and time. The judge was not required to find that these vague allegations, supported by a factually-bereft note, rose to the level of “unique or extraordinary circumstances” justifying relief under the rule. Shaev, supra at 911 (“Where the record does not show facts sufficient to warrant a finding of excusable neglect, there is no room within which judicial discretion can operate”). See Fergione v. Minuteman Regional Vocational Tech. Sch. Dist., 396 Mass. 1015, 1016 (1986) (“no facts of record in the case ․ would warrant a finding of excusable neglect on the plaintiffs' part”).
The plaintiff correctly points out that these precedents set “a high bar.” We are unpersuaded by her contentions that principles of equity and justice are sufficient to overcome that high bar and that a technical application of the rule should be disallowed. To the extent that she claims she was under “legal disability,” a pro se litigant is bound by the same procedural rules as her represented counterparts. See Briscoe v. LSREF3/AH Chicago Tenant, LLC, 481 Mass. 1026, 1027 (2019).
The order denying the plaintiff's motion to extend the time to file a notice of appeal is affirmed.
4. The plaintiff represents that the Federal District Court dismissed a similar, earlier action.
5. The plaintiff did not appeal from the decision and order of the Appellate Division of the District Court.
6. After denying the plaintiff's second motion for a stay, a judge of the District Court ordered the plaintiff not to file any further pleadings without seeking leave of court.
7. Thereafter, the plaintiff filed a “First Amended Bill in Exclusive Equity to declare and enforce Trusts” (emphasis omitted), adding DeVincent's attorney, John Santangelo, as a defendant.
8. As the defendants noted in their opposition and on appeal, although the plaintiff claimed that the injuries prevented her from filing a timely notice of appeal, she managed to prepare, serve, and file within the thirty-day period a pleading entitled, “Demand to show cause why Evidentiary Conference to show proof of Trust should not be granted.” As the plaintiff acknowledged, she received notice of the ruling on that demand (“no action” due to the entry of the judgment of dismissal) “just before the Christmas holiday” before expiration of the thirty-day appeal period. The plaintiff claimed that she did not file a timely notice of appeal because she “needed additional time to consider further actions beyond the deadline which fell in the midst of the holiday season.”
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