Opinion
No. 14–P–1294.
07-25-2016
AME REALTY CORPORATION v. WEBSTER FIRST FEDERAL CREDIT UNION.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a judge awarded summary judgment to the defendant, Webster First Federal Credit Union (Webster), the plaintiff, AME Realty Corporation (AME), sought a stay pending appeal pursuant to Mass.R.A .P. 6, as appearing in 454 Mass. 1601 (2009), from a single justice of this court. The single justice denied the motion and AME's motion for reconsideration, and the plaintiff now appeals from the orders of the single justice denying its motion to stay the trial court judgment and for reconsideration. Contrary to Webster's assertions, AME may properly appeal from the single justice's denial of the rule 6 motion, and the appeal should not be stricken on that basis. See Sang Hoa Duong v. Commonwealth, 434 Mass. 1006, 1008 (2001) (“In the ordinary course of events, where a stay has been denied by the trial judge and a single justice of the Appeals Court, the presumptive avenue for review is before a panel of the Appeals Court”). On appeal, AME argues that the single justice improperly denied the stay. We affirm.
AME argued to the single justice that the trial court judge erred by considering its motion to reconsider as filed only pursuant to Mass.R.Civ.P. 60(b)(1), 365 Mass. 828 (1974), but failed to address it as a Mass.R.Civ.P. 60(b)(6) motion. The single justice then issued an order finding no abuse of discretion as to the denial of the motion pursuant to Mass.R.Civ.P. 60(b)(1), but remanded the matter for consideration pursuant to Mass.R.Civ.P. 60(b)(6). On remand, the judge issued an order denying the motion on that basis as well. Upon receipt of the judge's order, the single justice then denied the request for a stay. AME sought additional time to file a memorandum addressing the rule 60(b)(6) issues, which the single justice treated as a motion to reconsider the denial of the stay, and denied it.
To the extent AME's appeal is proper, its claims are unavailing. First, AME argues that its rights to due process and under the equal protection clause have been violated because a different single justice of the Appeals Court denied its motion to include all the summary judgment materials below as part of the record for this appeal. Essentially, AME argues that since the trial judge's order on remand referenced arguments and materials in the summary judgment record, those records must be part of this appeal from the order of the single justice. We disagree. Notwithstanding that there was no appeal from the single justice order limiting the record, the argument fails because the summary judgment materials were attached to Webster's opposition to the stay and were before the single justice. As the entire contents of the single justice file are part of the record before us, there is no merit to this argument.
Though not raised by the single justice or argued by either party, the record suggests AME's appeal from the motion to reconsider in the trial court was untimely as AME's notice of appeal was filed on June 26, 2014, more than thirty days after the judge denied the motion for reconsideration on May 23, 2014, and apparently purported to appeal only from the denial of the motion to reconsider. See Mass.R.A.P. 4, as amended, 430 Mass. 1603 (1999). As a proper appeal is a necessary predicate for relief under Mass. R .A.P. 6, we need not reach the merits of this appeal, but we do.
The single justice denied AME's motion to expand the record “insomuch as the plaintiff seeks to include anything beyond the materials provided to the single justice of this court before he rendered his decision on the plaintiff motion to stay pending appeal .” As noted infra, the appropriate summary judgment materials were before the single justice.
Similarly, AME, relying on Aspinall v. Philip Morris Cos., 442 Mass. 381 (2004), argues that our review is hampered by the failure to include the summary judgment record because our review of the single justice's decision necessarily requires us to review the propriety of the trial court judge's decision. AME's reliance on Aspinall, however, is misplaced as that case concerned review of a single justice's action on a petition pursuant to G.L. c. 231, § 118, and not under rule 6. However, rule 6 does involve a determination of likelihood of success on the appeal from the judgment and requires an inquiry into the merits of the case. See, e.g., Ward v. Coletti, 10 Mass.App.Ct. 629, 633 (1980) ; Adoption of Duval, 46 Mass.App.Ct. 916, (1999) ; Cartledge v. Evans, 67 Mass.App.Ct. 577, 579 (2006). Here, there is no showing that the single justice misapplied the appropriate standards upon consideration of the summary judgment materials submitted in the record before him. See Gifford v. Gifford, 451 Mass. 1012, 1013 (2008), quoting from Mezoff v. Cudnohufsky, 5 Mass.App.Ct. 874, 874 (1977) (“ ‘Rarely, if ever, can it be said that a single justice is in error in denying relief’ under Mass.R.A.P. 6 ”).
Finally, AME argues that the single justice abused his discretion in denying the stay in light of the strong merits of its action. We disagree. First, the argument fails to acknowledge that AME neglected to oppose the summary judgment motion and any argument concerning the merits of that motion are waived. Furthermore, to the extent AME's appeal is proper, it appealed only from the proceedings concerning the rule 60(b) motion. Given the onerous standard applicable to review of such motions, see Owens v. Mukendi, 448 Mass. 66, 71–72 (2006), there is likely no merit to the underlying appeal.
Orders denying motion for stay and for reconsideration affirmed .