Opinion
14-P-39
11-21-2014
IN THE MATTER OF THE ESTATE OF OTIS LEE CARPER.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
William F. Mitchell filed a petition to remove Roy F. Gelineau as the public administrator of the estate of Otis Lee Carper (Otis). Mitchell's mother, Elizabeth, had been married to Otis at one time, but they were divorced by the time of Otis's death. Mitchell's petition to remove Gelineau was filed several years after Otis's estate had been closed, when Mitchell discovered that the office of the Secretary of the Commonwealth held almost $2,000 in unclaimed property of the estate.
Gelineau had been appointed public administrator of Otis's estate in 2001, and judgment on his first and final account entered on March 23, 2004.
Otis's sole heir was his son, Dale Lee Carper (Dale), whose mother, Elizabeth, was also Mitchell's mother. Dale died intestate shortly after Otis, leaving as his heirs an infant child (who was in the process of being adopted) and Elizabeth. The child's claim to Dale's estate was resolved by way of settlement with the adoptive parents, leaving the residue to Elizabeth. Elizabeth also became administratrix of Dale's estate. Elizabeth later died in April, 2009, leaving Mitchell as her heir. Mitchell thereafter filed his removal petition.
The probate judge allowed Gelineau's motions to dismiss and for summary judgment. At the motion hearing, the judge explained to Mitchell that since he was not an heir to Otis's estate, he needed to pursue a remedy through his mother's estate (to which he was heir) and then as the residual beneficiary of Dale's estate. The judge aided Mitchell in locating the forms he would need to pursue his claim through the correct avenue. It is not clear from the record before us whether Mitchell pursued the judge's suggestion; in any event, Mitchell filed a notice of appeal from the judgment of the Probate and Family Court dismissing his petition.
That appeal, however, was not timely perfected because Mitchell did not docket the appeal in this court within ten days of receiving notice of assembly of the record from the Probate and Family Court. See Mass.R.A.P. 10(a)(1), as amended, 435 Mass. 1601 (2001). Upon being alerted to the error by this court's clerk's office, Mitchell filed a motion seeking leave to docket his appeal late. That motion was denied without discussion by a single justice, as was a motion for reconsideration. Mitchell now appeals from the single justice's orders, and we affirm.
He also moved to waive the filing fee. That motion was allowed, and is not an issue in this appeal.
The single justice in his or her discretion may, "for cause shown," enlarge the time for docketing an appeal. Mass.R.A.P. 10(a)(3), as amended, 378 Mass. 937 (1979). See Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979) (enlargement "for good cause shown"). We review the single justice's orders for error of law or other abuse of discretion. See Troy Indus., Inc. v. Samson Mfg. Corp., 76 Mass. App. Ct. 575, 581 (2010); Neuwirth v. Neuwirth, 85 Mass. App. Ct. 248, 257 (2014).
Although Mitchell's motion explicitly relied on rule 14(b) and not rule 10(a)(3), our analysis applies under either rule.
Mitchell did not dispute that he failed to timely docket his appeal. Instead, he asked that his misinterpretation of the rules be deemed excusable neglect. He further claimed that he had "multiple meritorious grounds for appeal." However, his motion did not address the basis for the dismissal of his petition below: his lack of standing to bring it. See Clymer v. Mayo, 393 Mass. 754, 763 (1985) ("[O]nly those with a legal interest in the decedent's estate . . . have standing to seek removal"). The standing issue was not discussed until Mitchell's motion to reconsider, and even then unpersuasively and without citations to relevant authority.
Mitchell's motion for leave to docket late states that, after receiving notice that the record had been assembled, he "waited and waited to hear from the Appeals Court as to the assembly of the record and transfer of the case in this court." The motion indicated that he had "misinterpreted" the rules and thought that once the case had been assembled he would receive notice from this court that the case was entered.
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The single justice did not abuse his discretion in denying the motions. Mitchell's misinterpretation of the procedural rules did not constitute excusable neglect. See Neuwirth v. Neuwirth, supra (cases are clear that a good faith misunderstanding of an appellant's obligations under the rules does not constitute excusable neglect). In Neuwirth, we rejected the claim that a pro se litigant (such as Mitchell here) should be held to a more lenient standard concerning compliance with the appellate rules. Ibid. See Maza v. Commonwealth, 423 Mass. 1006 (1996); Rothman v. Trister, 450 Mass. 1034 (2008).
Moreover, given Mitchell's failure to explain how he had standing to pursue a claim through Otis's estate (in which he had no interest as an heir or otherwise), we see no abuse of discretion even if the single justice's decision rested on the ground that Mitchell did not present a meritorious argument on appeal.
Orders of the single justice affirmed.
By the Court (Cohen, Fecteau & Wolohojian, JJ.),
Clerk Entered: November 21, 2014.