Opinion
21-P-553
07-06-2022
SHREWSBURY STREET DEVELOPMENT COMPANIES, INC. v. NICHOLAS FIORILLO, trustee,[1] & others.[2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Shrewsbury Street Development Companies, Inc. (SSDC), filed a notice of appeal from a judgment that dismissed its complaint and awarded attorney fees and costs to the defendants. The defendants filed a motion to strike the notice of appeal because it was untimely and because it was filed pro se by SSDC's corporate officer, Ara Eresian, Jr. (Eresian), who is not an attorney. A judge of the Superior Court allowed the motion, after which Eresian, still acting in a pro se capacity, filed a second notice of appeal. The defendants filed another motion to dismiss the notice of appeal, which was allowed, in part, on the ground that successor counsel failed to make a prompt appearance. Before us is SSDC's appeal from the order allowing the defendant's motion to dismiss the second notice of appeal. We affirm.
Background.
The underlying action concerns real property, a single-family residence located at 49 Olde Colony Drive in Shrewsbury (property), that has been the subject of extensive litigation in several State and Federal courts. We briefly summarize the relevant factual and procedural history as follows. In June 2009, SSDC purchased the property through its sole officer and director, Nicholas Fiorillo (Fiorillo). The property was subsequently transferred to Fiorillo's brother-in-law, Erik Krowel, in his capacity as trustee for the 49 Olde Colony Drive Realty Trust (Trust). The Trust then granted a purchase money mortgage in the amount of $341,000 to Daniel J. Rourke, III (Rourke).
In the same month that the Trust took title to the property, Santo Arcuri (Arcuri) obtained a judgement against Fiorillo's wife, Tracy Krowel, in the amount of approximately $215,000. Thereafter, in December 2010, Arcuri filed suit against Tracy and the Trust claiming that Tracy was the beneficial owner of the property and that the Trust was created to avoid the $215,000 judgement. After a jury-waived trial, a judge of the Superior Court found that 1) Tracy was the beneficial owner of the property, 2) the Trust was fraudulently created to avoid the $215,000 judgement in favor of Arcuri, and 3) the mortgage to Rourke was valid. The judge, in turn, ordered that the property be sold and that the net proceeds be applied to satisfy the outstanding $215,000 judgement.
Thereafter, Tracy and the Trust (Fiorillo having been appointed as successor trustee) filed a petition for relief under chapter 7 of the Bankruptcy Code. After Arcuri successfully obtained relief from the automatic bankruptcy stay, a judge of the Superior Court ordered that the property be sold subject to the first mortgage to Rourke. In accordance with that order, the property was conveyed to Arcuri in September 2016.
In November 2017, Arcuri sold the property to Magdy Badereldin (Badereldin) and Marwa Elsayed (Elsayed) for $681,000. Badereldin and Elsayed obtained a loan from IC Federal Credit Union in connection with the purchase. Badereldin, Elsayed, and IC Federal Credit Union are the current owners of the property (current owners). Meanwhile, SSDC had been dissolved by the Secretary of State for failing to file annual reports. In the same month that the property was transferred to the current owners, Eresian revived SSDC and acquired its stock from Fiorillo's bankruptcy estate. Claiming that SSDC owned the property, Eresian then served the current owners a ninety-day notice to quit. The current owners refused to vacate.
In August 2018, SSDC filed a declaratory judgment action against the Trust, Rourke, Arcuri, Arcuri's wife, and the current owners, seeking, among other things, enforcement of the ninety-day notice to quit. On November 7, 2019, a judge of the Superior Court determined that the complaint was frivolous, dismissed it, and granted the defendants' request for attorney's fees and costs under G. L. c. 231, § 6F. SSDC's lawyer, George H. Boerger, filed a notice of appeal on November 15, 2019. However, final judgment did not enter until August 13, 2020, and post judgment motions were resolved on October 2, 2020.
Boerger died on September 19, 2020. On October 26, 2020, a single justice of this court entered the following order in SSDC's pending appeal:
"Shrewsbury Street Development Co., Inc., (SSDC) is a corporation registered with the Secretary of the Commonwealth. It has been represented to the court in 20-J-75 that counsel for SSDC has passed. '[A] corporation may not be represented in judicial proceedings by a corporate officer who is not an attorney licensed to practice law in the Commonwealth.' Varney Enters. v. WMF, Inc., 402 Mass. 79, 79 (1988). A further status report is due on or before 11/23/20 as to whether a notice of appeal has been filed from the judgement and/or orders entered on the post-judgement motions. . . . The status report should also include whether successor counsel has been obtained for SSDC."
On November 16, 2020, Eresian filed a notice of appeal on behalf of SSDC from several orders and the judgment dismissing SSDC's complaint. The current owners filed a motion to strike the notice of appeal because it was untimely and it was not filed by a licensed attorney. On January 15, 2021, a judge of the Superior Court allowed the motion to strike in a margin endorsement that stated it was allowed "for the reasons set forth in the [defendants'] motion."
On February 12, 2021, Eresian, on behalf of SSDC, filed a second notice of appeal. The current owners filed a motion to dismiss the second notice of appeal because, again, it was not filed by a licensed attorney and it failed to certify that there were no transcripts relevant to the appeal in accordance with Mass. R. A. P. 8 (b) (1), as appearing in 481 Mass. 1611 (2019). Around the same time, on February 22, 2021, the clerk's office of the Appeals Court entered the following order:
The motion is entitled, "Motion to dismiss 'second' notice of appeal." We note that there is no difference in striking the notice of appeal or dismissing the notice of appeal. In both cases, the result is that the appeal is dismissed.
"This case is [a G. L. c. 231, § 6G, appeal, and it] is one of 3 related appeals from an attorney['s] fee order issued by the trial court pursuant to § 6F of that statute. . . . Appellate proceedings are stayed to 3/08/2021 with a status report due then as why the 6G appeals should not be dismissed because there is no active notice of appearance of counsel for the petitioner corporation. Should the status report, or an appearance by counsel for the corporation not be
entered on or before that date, the appeal may be subject to dismissal."
On March 9, 2021, SSDC's present counsel, David G. Baker, filed a notice of appearance in the Appeals Court. Then, on March 29, 2021, Attorney Baker filed a notice of appearance in the Superior Court. On March 31, 2021, the same Superior Court judge allowed the defendants' motion to dismiss the second notice of appeal, again "for reasons set forth in [the] motion." The judge also noted that "prior counsel passed sometime prior to October 26, 2020" and, citing Braxton v. Boston, 96 Mass.App.Ct. 714, 719 (2019), concluded that "[a]ppearance of counsel for the corporation was not prompt."
On April 30, 2021, Attorney Baker filed a third notice of appeal from the order dismissing the second notice of appeal.
Discussion.
The sole issue on appeal is whether the judge abused his discretion in dismissing the second notice of appeal on the ground that successor counsel did not promptly enter an appearance. Based on our review of the record before us, we conclude that the judge did not abuse his discretion in dismissing the second notice of appeal.
In Massachusetts, "a notice of appeal filed by a pro se trustee or corporate officer on behalf of a trust, corporation, or similar legal entity is adequate to allow an appeal to proceed in this court, so long as an attorney promptly files an appearance and prosecutes the appeal or existing counsel of record prosecutes the appeal." Braxton, 96 Mass.App.Ct. at 719. When, as happened here, a corporate officer of a legal entity files a notice of appeal pro se, "the clerk of our court should (and trial court clerks may) issue an order to the unrepresented party allowing the party thirty days, or some additional reasonable time to be determined by the court, to obtain counsel, and the appeal should be dismissed by a panel (or trial court judge) if counsel does not appear within that time." Id.
SSDC argues that the judge erred in dismissing the second notice of appeal because successor counsel promptly entered an appearance in this court within days of the February 22, 2021 order advising SSDC that if successor counsel did not enter an appearance by March 8, 2021, its appeal may be dismissed. We disagree. First, as noted above, in the circumstances presented, the trial judge had the authority to dismiss the appeal. Next, SSDC was put on notice of its requirement to obtain successor counsel well before the filing of the notice of appeal on February 12, 2021. Even if in some other case in which no further steps were required by counsel we might not dismiss an appeal incorrectly filed by a corporate officer on behalf of the legal entity pro se in the absence of specific notice in a case of how long the unrepresented party has to obtain counsel -- something we need not decide -- by the time Eresian filed the notice of appeal at issue in this case, he had been twice told that he could not represent the corporation because he was not a licensed attorney. SSDC's prior counsel died on September 19, 2020. The record indicates that on October 26, 2020, a single justice of this court issued an order advising SSDC that corporations must be represented by an attorney who is licensed to practice in the Commonwealth. Likewise the first notice of appeal, filed on November 16, 2020, was struck on January 15, 2021, on the ground that it was not filed by a licensed lawyer. Yet in the face of this, Eresian, rather than hiring counsel, filed yet another notice of appeal on the corporation's behalf. Successor counsel did not enter an appearance in the Superior Court until March 29, 2021, more than six months after the death of prior counsel. Given these unusual circumstances in which the corporate officer was repeatedly told that it was impermissible for him to represent the corporation pro se, the judge did not abuse his discretion in dismissing the appeal on the ground that successor counsel failed to "promptly file an appearance" after prior counsel's death as required by our case law. Consequently, the order dismissing the second notice of appeal is affirmed, and we do not reach the merits of the propriety of the order striking the first notice of appeal.
The defendants' request for appellate attorney's fees and costs is denied.
Order dated March 31, 2021, dismissing notice of appeal affirmed.
The panelists are listed in order of seniority.