Opinion
15-P-141
07-29-2016
U.S. BANK NATIONAL ASSOCIATION, trustee v. PAUL L. MUCKLE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
This appeal arises from a judgment awarding possession of real property in favor of the plaintiff, U.S. Bank National Association (U.S. Bank). The defendant, Paul Muckle, appeals from certain orders of the Housing Court and a single justice of this court. On appeal, Muckle argues, among other things, that the single justice and the Housing Court judge erroneously denied his motions to stay the execution of the order granting possession to the plaintiff, and his subsequent motions for reconsideration. We affirm.
Background. Since 2007, the parties had been involved in litigation over the foreclosure and possession of the property located at 35 Newbury Street in Brockton. A Housing Court judge granted summary judgment to U.S. Bank, and awarded it possession of the property in July, 2014. Muckle filed a timely notice of appeal and a motion to waive the bond requirement. The judge denied Muckle's motion to waive the appeal bond because he found that Muckle failed to raise a nonfrivolous issue on appeal. The judge set the appeal bond and required Muckle to pay use and occupancy payments. During a hearing on December 24, 2014, the judge granted the U.S. Bank's motion for execution of the possession order and its motion to dismiss Muckle's appeal for noncompliance with the order requiring a bond. Muckle's motion to stay the issuance of an execution for possession order was denied by a single justice of this court on December 30, 2014. After U.S. Bank obtained possession of the property, Muckle filed a motion in the Housing Court for reconsideration of the denial of his motion to stay, which was denied. Muckle filed another motion for reconsideration before the single justice, which was also denied.
Discussion. 1. Motion to stay. Muckle argues that the single justice of this court abused her discretion in denying his motion to stay the execution of the Housing Court's issuance of an execution for possession. This issue is moot because Muckle has been evicted from the property and this court cannot grant him the relief he sought -- a stay of execution. See In re Appeal Bond, 428 Mass. 1022, 1022 (1999) ("To the extent that the petition sought to prevent the landlord from acting on the execution, the issue was moot, for the landlord had acted before the petition was filed"); Petrillo-Aufiero v. Petrillo, 436 Mass. 1002, 1002 (2002) (dismissing appeal as moot where "[o]ne day after the [occupants] filed their notice of appeal from the denial of their petition by a single justice of [the Supreme Judicial Court], they were evicted from the property").
2. Motions for reconsideration. a. Housing Court. Muckle argues that the Housing Court judge abused his discretion in denying Muckle's motion for reconsideration of the denial of the appeal bond waiver and of his motion for enlargement of time for appeal. We review the denial of a motion for reconsideration for an abuse of discretion. See Merchants Ins. Group v. Spicer, 88 Mass. App. Ct. 262, 271 (2015).
Here, the judge's denial of Muckle's motions was within his ample discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). The judge was familiar with the facts of the case and the parties involved. Additionally, the judge had previously determined that Muckle failed to demonstrate that there were nonfrivolous grounds for appeal. Muckle also argues that the judge erroneously denied his motion to enlarge the time for appeal, as the judge failed to consider his argument that the so-called "prison mailbox rule" should apply in civil cases and, therefore, his October, 2014, notice of appeal from the bond order should have been deemed timely filed. However, Muckle failed to present evidence that he timely mailed his notice of appeal with his motion for reconsideration. Absent such proof and in light of the judge's previous determination that there were no nonfrivolous grounds for appeal, the judge did not abuse his discretion in denying the motion.
b. Single justice. Similarly, the single justice properly denied Muckle's motion for reconsideration. Muckle failed to include the supporting affidavit regarding the prison mailbox rule argument with his initial motion. The single justice also correctly noted that Muckle did not identify a single nonfrivolous issue in his motion for reconsideration and that the motion was moot. We discern no error or abuse of discretion.
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." Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Order denying motion for stay of execution and orders denying motions for reconsideration affirmed.
By the Court (Green, Hanlon & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: July 29, 2016.