CITY OF FITCHBURG v. VOLK (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case arises out of an action filed by the city of Fitchburg (city) in June 2016 to enforce the sanitary code on a multifamily property owned by the defendant, Ruediger Volk. On October 25, 2016, a judge in the Worcester Division of the Housing Court Department appointed a receiver, Ted Construction, to enforce the sanitary code (2016 judgment). In 2018, an order entered allowing the receiver's motion to foreclose on its lien.² Since its inception, this case has been fully litigated as the defendant has filed numerous appeals both while represented by counsel and while acting pro se. In this pro se appeal, the defendant purports to appeal from the 2016 judgment, and also appeals from an order entered on March 8, 2019, extending the time for the receiver to complete the work; an order entered on March 14, 2019, denying the defendant's motions to reconsider the certification of the accounting filed by the receiver; and an order entered on April 26, 2019, allowing the receiver's motions to deposit funds and for additional attorneys’ fees.³ We affirm.

Discussion. We note at the outset that the defendant, although acting pro se, is nonetheless required to abide by the Massachusetts Rules of Appellate Procedure and is held to the same standard as litigants represented by counsel. See Maza v. Commonwealth, 423 Mass. 1006, 1006 (1996). See also Brossard v. West Roxbury Div. of the Dist. Court Dep't, 417 Mass. 183, 184 (1994). The defendant's brief is difficult to understand, and it is often not supported by reference to relevant legal authority or record citations. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019). However, recognizing his pro se status, we have reviewed the entire record and his arguments in order to reach the merits of some of the claims that he presents on appeal. Despite the many issues complained of in his brief, the only matters that can be addressed are those timely appealed in the defendant's notices of appeal filed on May 10, 2019, March 20, 2019, and November 19, 2019. We will address each of these in turn.

On May 10, 2019, the defendant filed a notice of appeal specifically identifying the 2016 judgment.⁴ Any appeal from the 2016 judgment is not properly before us for several reasons, including because it was not timely filed and because the 2016 judgment has already been fully appealed by the defendant and affirmed by a different panel of this court in 2018. See Fitchburg v. Volk, 93 Mass. App. Ct. 1105 (2018). However, also contained in this appeal is the defendant's challenge of an order entered on April 26, 2019, allowing the receiver's motions to deposit funds and for additional attorney's fees. Although the defendant focuses largely on the appointment of the receiver, he also generally argues that the receiver, through its attorney, was incompetent in the accounting process and caused multiple delays and postponements during the proceedings. The defendant maintains that he should not be responsible for paying for attorney's fees under those circumstances. It is unclear from his brief, what, if any, issues he claims with respect to the receiver's motion to deposit funds. In any event, the defendant has failed to support these claims with any factual detail and has not provided us with any legal authority or citation in support of his claims. His submissions in the record appendix do not provide us with sufficient information to consider his claims. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019); Zora v. State Ethics Comm'n, 415 Mass. 640, 642 n.3 (1993) (“bald assertions of error” in briefs “lacking legal argument and authority ․ [do not] rise[ ] to the level of appellate argument”).

We next turn to the defendant's challenge of the order denying his requests for reconsideration of the certification of the receiver's accounting, as identified in the notice of appeal filed on March 20, 2019. In his brief, the defendant claims that the cost estimate to repair the property was closer to $20,000, but that the court approved a budget of approximately $185,000. He provided us with emails he sent to the receiver and other documentation claiming that the receiver spent more money than was necessary to get the building up to code. Again, other than making this allegation of overspending by the receiver, the defendant does not provide us with any evidence or argument that there was any error in approving the accounting or accepting the detailed affidavit of counsel for services rendered.

Finally, on November 19, 2019, it appears that the defendant attempted to appeal from the city's motion to dismiss the defendant's appeal filed on May 10, 2019.⁵ Again, it is unclear what the defendant is contending as the Housing Court judge provided the defendant additional time to respond. A review of the docket shows that no action was taken on the city's motion to dismiss and, in a margin endorsement, the judge gave the defendant until November 22, 2019, for the defendant to comply.

We have addressed the matters the defendant has raised and timely filed.⁶ Because he does not provide us with sufficient facts or law, we will not reverse.

Orders entered March 8, 2019, March 14, 2019, and April 26, 2019, affirmed.

FOOTNOTES

2.   The defendant filed a timely appeal of the 2016 judgment and the order denying his motion to reconsider, which a different panel of this court affirmed. See Fitchburg v. Volk, 93 Mass. App. Ct. 1105 (2018).

3.   We note that on November 19, 2019, the defendant filed a notice of appeal and a request to assemble the record which resulted in the entry of Appeals Court docket number 19-P-1739. That case was dismissed for lack of prosecution in November 2020. On March 16, 2022, a single justice of this court allowed the defendant's motion to reinstate his appeal and all filings under 19-P-1739 were ordered transferred to the current docket number 22-P-228.

4.   In his brief, the defendant specifically states that this appeal “is about the Court order of the appointment of a receiver on Oct[ober] 26, 2016 [sic] by the Trial Court.”

5.   The notice by the defendant is entitled “Motion To dismiss the motion to dismiss of Appeal possib[ ]ility.”

6.   To the extent that we do not address the defendant's other contentions, they “have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).