Opinion
20-P-1150
08-25-2021
A.P. v. C.H.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In these consolidated appeals, the defendant, C.H., first appeals from an order of a single justice of this court, asserting, among other arguments, that the single justice violated his due process rights by denying him relief from an underlying abuse prevention order. The defendant also appeals from a second single justice order declining to accept the filing of his two reply briefs in this appeal. We affirm.
The plaintiff has not filed a brief or otherwise participated in this appeal.
Background. This appeal arises from a G. L. c. 209A abuse prevention order (c. 209A order) issued in the District Court against the defendant. The c. 209A order was entered on June 18, 2013 and was permanently extended on June 17, 2014. On October 10, 2018, the defendant moved to modify the c. 209A order. A District Court judge denied his motion on the same day. On October 22, 2018, the defendant moved for relief from judgment pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). The judge denied this motion on the same day. The defendant filed a notice of appeal from the judge's denial of his rule 60 (b) motion. On July 30, 2020, the defendant again moved to modify the c. 209A order, a motion which the judge denied the next day. The defendant filed a notice of appeal from this order.
The defendant appealed to a single justice of this court, seeking relief from the orders entering and extending the c. 209A order, and from the orders entered October 10, 2018, October 22, 2018, and July 31, 2020. On September 25, 2020, the single justice issued an order, stating that "[t]o the extent the defendant seeks to pursue an appeal from the orders entered on [June 18, 2013] and [June 17, 2014], the defendant's motion is treated as a motion to file a late notice of appeal from those orders." To the extent that "the motion seeks that relief," the single justice determined that she "is without authority to grant the requested relief" pursuant to Mass. R. A. P. 14 (b), as appearing in 481 Mass. 1627 (2019). The single justice also declined to address the defendant's claims regarding relief from the remaining trial court orders where a motion related to those matters was pending in the trial court.
The defendant appealed from the single justice's order. As part of his appeal, the defendant sought to file two reply briefs. On February 2, 2021, a different single justice of this court refused to accept the reply briefs for filing because, pursuant to Mass. R. A. P. 16 (c), as appearing in 481 Mass. 1631 (2019), "the appellant [defendant] is only permitted to file a reply brief when an appellee brief is filed" and the appellee has not filed a brief in this appeal. The defendant's appeal from that ruling was consolidated with this appeal.
Discussion. We first address the September 25, 2020 order of the single justice. We review an order of the single justice "for errors of law and, if none appear, for abuse of discretion." Troy Indus., Inc. v. Samson Mfg. Corp., 76 Mass. App. Ct. 575, 581 (2010).
The record in this case contains filings that are confusing and difficult to follow. It appears that the defendant raises arguments regarding his rule 60 (b) motion, and requests that we "vacate all judgments entered in connection with [the] permanent [c. 209A order]." According to our review, however, the only matters properly before us are the defendant's appeals from the single justices’ orders dated September 25, 2020 and February 2, 2021.
The defendant contends that the single justice violated his due process rights by denying his appeal from the entry and extension of the c. 209A order. We begin our analysis by addressing a procedural point. To appeal from an order or a judgment, a party must first file a notice of appeal. See Mass. R. A. P. 3 (a) (1), as appearing in 481 Mass. 1603 (2019). See also Commonwealth v. Kardas, 93 Mass. App. Ct. 620, 621-622 (2018) (where no notice of appeal was filed, challenge to single justice order was not properly before court). On the record before us, the defendant did not file a notice of appeal from the entry or the extension of the c. 209A order. Thus, we discern no error or abuse of discretion in the single justice's treatment of the defendant's request for relief from the c. 209A orders as a request to file a late notice of appeal.
The defendant's notices of appeal from the October 22, 2018 order denying his rule 60 (b) motion and from the July 31, 2020 order denying his motion for modification do not suffice to serve as a notice of appeal from the orders entering or extending the c. 209A order. A notice of appeal must "designate the judgment, decree, adjudication, order, or part thereof appealed from." Mass. R. A. P. 3 (c) (1), as appearing in 481 Mass. 1604 (2019). An order not listed on the notice of appeal is therefore "not before us for decision." Rothkopf v. Williams, 55 Mass. App. Ct. 294, 295 n.2 (2002). Here, the two notices of appeal filed by the defendant do not include a designation of the entry or the extension of the c. 209A order, and therefore, those orders were not before the single justice.
We now address the single justice's decision. In certain circumstances, an appellate court or single justice may enlarge the time to file a notice of appeal. See Mass. R. A. P. 14 (b). However, "neither an appellate court nor a single justice may enlarge the time for filing a notice of appeal beyond [one] year from the date of entry of the judgment or order sought to be reviewed." Id. Here, by the time this matter was before the single justice, well over one year had passed from the date of the entry and the date of the extension of the c. 209A order. There was no error in the single justice's determination that she was thus "without authority to grant the requested relief" of permitting a late filing of a notice of appeal from the c. 209A orders. See Troy Indus., Inc., 76 Mass. App. Ct. at 581.
The defendant next contends that the single justice failed to order the assembly of the trial court record related to his appeals from the denial of his rule 60 (b) motion and from the denial of his motion for modification. We discern no error or abuse of discretion in the single justice's decision where, as she noted, "the defendant has filed a motion in the trial court to compel [the] assembly of the record that remains pending." Cf. Sellers v. Commonwealth, 464 Mass. 1015, 1015 (2013) (single justice did not err or abuse his discretion in denying petitioner's request for relief, where, among other things, motions for new trial were still pending in trial court and petitioner may have had other avenues of relief).
The record before us is unclear as to which appeal the defendant seeks to have the trial court assemble the record. It appears, however, that the trial court has not yet assembled the record for either appeal, so we address both herein.
We note that the docket reflects that the motion to compel the assembly of the record is still pending. The trial court should assemble the record for the defendant's appeals without further delay. See Mass. R. A. P. 9 (a), (e), as appearing in 481 Mass. 1615, 1617 (2019).
Finally, regarding the February 2, 2021 single justice order, the defendant argues that the single justice violated his constitutional rights by refusing to accept his two reply briefs for filing. This argument is without merit. An "appellant may file a reply brief responding to the appellee's argument." Mass. R. A. P. 16 (c). See Commonwealth v. Galarza, 93 Mass. App. Ct. 740, 747 (2018) ( rule 16 [c] of Massachusetts Rules of Appellate Procedure permits appellant to submit reply brief in response to appellee brief). Here, the plaintiff has not participated in this appeal and did not file a brief. There was, therefore, nothing for the defendant to reply to and, under our rules of appellate procedure, he was not permitted to file a reply brief. The single justice did not err or abuse his discretion in his order. See Mass. R. A. P. 16 (c). Cf. Wodinsky v. Kettenbach, 86 Mass. App. Ct. 825, 827 n.7 (2015) (single justice did not abuse discretion in orders addressing page limit of reply brief where rulings were made in accordance with Mass. R. A. P. 16 [c], [h], and [i], as amended, 428 Mass. 1603 [1999]).
Single justice orders entered September 25, 2020, in 20-J-419, and February 2, 2021, in 20-P-1150, affirmed.