Opinion
19-P-574
01-04-2022
Gaetano ARRIA v. Maria Zullo CHESMORE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Maria Zullo Chesmore (wife) appeals from an order of a judge of the Probate and Family Court denying her motion to file a late appeal. An amended judgment entered in this divorce case on December 20, 2017. Although she had been represented by counsel at trial, on February 8, 2018, the wife filed a pro se motion for leave to file a late appeal, asserting excusable neglect on the grounds that she had first filed, erroneously, in Boston. On March 29, 2018, the wife filed a motion for "judicial notice" in which she again asked that her appeal be allowed late. On May 10, 2018, the judge denied the motion filed on February 8, 2018. Treating the March 29, 2018 motion as a motion for reconsideration, the judge denied that motion on September 26, 2018, on the grounds that the wife had failed to show excusable neglect for the late filing. This timely appeal followed.
The wife now contends on appeal that her attorneys knew that she wanted to file an appeal, and that while she was proceeding pro se on appeal, they failed to either file the notice of appeal for her or tell her when she had to file on her own behalf. She points to an email she sent expressing her desire to appeal an interlocutory order that issued before the judgment, and to an email she sent after the appeal period had passed in which she expressed her desire to appeal, and noting that she would be doing so pro se. She claims to have been misled by the failure of trial counsel to point out to her that the thirty day appeal period under Mass. R. A. P. 4(a)(1), as appearing in 481 Mass. 1606 (2019), had already lapsed.
However, in an affidavit filed with her motion for judicial notice, she stated that she was told by trial counsel that she had to file the notice of appeal by January 20, 2018. Then, in apparent self contradiction, she stated "At all times relevant I was of the belief that my attorney had in fact filed a notice of appeal on my behalf, even though his office expressed that they would not handle the appeal unless I gave them more money."
Characterizing this chain of events as "ineffective assistance of counsel" the wife now asks us to reinstate the appeal. We understand this argument to mean that the wife believes that trial counsel was negligent in the handling of her appeal, and that she should be permitted to file late for this reason.
Ineffective assistance of counsel claims may be brought in criminal, not civil cases, where unique constitutional considerations are at stake and the scope of relief available on appeal is therefore broader. See Commonwealth v. Millien, 474 Mass. 417 (2016). In the civil context, the claim is one of negligence for failing to file the notice of appeal, see, e.g., Global NAPs, Inc. v. Awiszus, 457 Mass. 489 (2010), where the scope of relief is more circumscribed.
"Under Mass. R. A. P. 4 (a), appellants in civil cases are required to file a notice of appeal within thirty days of the date of the entry of the judgment or the order denying a motion for new trial. After the thirty-day deadline, a judge can allow a motion for leave to file a late notice of appeal only upon a showing of ‘excusable neglect.’ Mass. R. A. P. 4 (c). We review the judge's allowance of the motion to enlarge time to file a notice of appeal under the abuse of discretion standard." Pierce v. Hansen Eng'g & Mach. Co., 95 Mass. App. Ct. 713, 715 (2019).
The judge did not abuse his discretion when he denied the motion. "[E]xcusable neglect is meant to apply to circumstances that are unique or extraordinary, not to any ‘garden-variety oversight.’ ... Excusable neglect ... is meant to take care of emergency situations only" (quotations and citations omitted). Id. at 717. At best, the failure to file was the product of a misunderstanding as between the wife and her counsel. Id. at 717-718 (miscommunication between counsel as to who would file the notice of appeal was not excusable neglect). At worst, the wife was on notice that filing the appeal was her responsibility. Neither situation constitutes excusable neglect. See id., and cases cited.
Implicit in the wife's argument is that she was hampered in her efforts to comply with the rule because she was self-represented, and that she should be accorded some leniency. Typically, self-represented litigants are held to the same standards as those who are represented by counsel. See Care and Protection of Penelope, 479 Mass. 1030, 1030 (2018). Even if we separately considered her pro se status, the record here does not warrant a departure from Pierce. The wife's affidavit states that trial counsel said they would not represent the wife on appeal, and she appears to have acknowledged this fact and undertaken to obtain pro bono assistance. She also acknowledges that she was told to file the notice by January 20, 2018. The (unverified) emails in the record from trial counsel state that they had advised her to seek appellate counsel and that they told her repeatedly that they would not represent her on appeal. Her own affidavit appears to confirm this. At this point, matters take an inexplicable turn. After the appeal period had lapsed, she sent an email to trial counsel which indicated that she thought, incorrectly, that she had to file the notice of appeal by February 7, 2018, not January 20, 2018, as she stated in her affidavit. She then asked counsel on March 22, 2018, long after the appeal period had lapsed and after she had filed her own motion for leave to file late, whether they had filed a notice of appeal on her behalf. Where the moving party's affidavits and documents are so confused and inconsistent, we cannot say that the judge abused his discretion in denying the motion, even as to a pro se party.
There is no affidavit from trial counsel, and no affidavit from the wife verifying the emails.
Order dated September 26, 2018, denying the defendant's motion for judicial notice is affirmed.