Opinion
21-P-280
05-06-2022
CITY OF QUINCY v. SECRETARY OF THE EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS & another.[1]
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 Chaubunagungamaug Nipmuck Tribe (tribe) appeals from orders of a single justice of this court denying its motion to enlarge the time for filing notice of appeal of certain orders in the Superior Court and its subsequent motion for reconsideration. Because we discern no abuse of discretion in the single justice's determination that the tribe failed to show the "good cause" required for its request, Mass. R. A. P. 14 (b), as appearing in 481 Mass. 1626 (2019), we affirm those rulings. Given our conclusion, we need not decide the other issues raised by the tribe's appeal.
City of Boston Public Works Department.
Background.
The following history is not disputed. This matter stems from an action in the Superior Court (underlying action) in which the city of Quincy sought additional environmental review related to reconstruction of the bridge from Moon Island to Long Island in Boston Harbor. The tribe's motion to intervene in the underlying action was denied by an order docketed on February 27, 2020. Within ten days of the entry of that order, the tribe served the parties to the underlying action with a motion for reconsideration, thus tolling the time for filing a notice of appeal as to the denial of the motion to intervene. See Mass. R. A. P. 4 (a) (2) (C), as appearing in 481 Mass. 1606 (2019). The motion to reconsider was denied in an order docketed on August 18, 2020; the time for filing a notice of appeal of the judge's denial of both the motion to intervene and the motion for reconsideration began to run on that date. See id.
As we discuss, infra, although it is not clear that the tribe filed notices of appeal from these orders, we treat the appeal as being properly before us.
The Superior Court docketed the denial of the motion for reconsideration but did not notify the tribe. The tribe did not monitor the docket in the underlying action and represented that it did not learn that the motion had been denied until November 9, 2020. Once it did become aware of that ruling the tribe took several days to respond, ultimately writing to the Superior Court on November 20, 2020, requesting an explanation of why it had not received notice of the judge's orders. According to the tribe, it "[s]imultaneously" contacted the Appeals Court clerk's office and was informed of the appellate courts' authority to enlarge the time for filing a notice of appeal. See Mass. R. A. P. 14 (b). The tribe's letter to the Superior Court was presented to a judge who treated it as a motion under Mass. R. A. P. 4 (c) to extend the time for filing notice of appeal. In an order docketed on December 22, 2020, the judge denied the motion on the grounds that he lacked the authority to extend the time for filing more than thirty days beyond the expiration of the original appeal period; the original appeal period had expired by the time the tribe's November 20, 2020 letter was sent. See Mass. R. A. P. 4 (a), 4 (a) (2) (C), 4 (c) .
To the extent that the single justice concluded otherwise, nothing turns on that difference. In determining the timeliness of the motion for reconsideration, we note that March 8, 2020, fell on a weekend, and that the tribe served its motion on the following day. See Mass. R. A. P. 14 (a).
Relying on the information it had obtained from the Appeals Court clerk's office and evidently misunderstanding the time limit in rule 14 (b) to entitle it to an enlargement of time provided its motion to enlarge was filed within a year of the underlying judgment, the tribe waited nearly three additional months to take further action on its intent to appeal. The tribe filed its rule 14 (b) motion to enlarge time on February 23, 2021, just short of one year from the entry of the order denying its motion to intervene in the underlying action. In that motion, the tribe argued that because the Superior Court clerk's office had failed to notify it of the denial of the tribe's motion to intervene, its own failure to file a timely notice of appeal was the result of "excusable neglect." The single justice disagreed, and on February 26, 2021, entered a thoughtful and detailed order denying the tribe's rule 14 (b) motion. The tribe filed a notice of appeal indicating its intent to appeal from the single justice's order through a motion for reconsideration that was filed the same day as the notice, and an appeal to a panel of this court "to be filed later." The single justice denied the motion for reconsideration. The tribe did not file another notice of appeal thereafter.
Discussion.
We focus on the propriety of the single justice's denial of the tribe's motion to enlarge the time to file its notice of appeal in the underlying action and motion for reconsideration. In doing so, we pass over the question whether the tribe properly noticed its appeal of the single justice's rulings. See Commonwealth v. Kardas, 93 Mass.App.Ct. 620, 622 (2018) (litigant required to file notice of appeal as prerequisite to review of order of single justice). Similarly, we do not decide whether the tribe may be represented by a nonlawyer (here, a "policy consultant" for the Muhheconneuk Intertribal Committee on Deer Island), as it has purported to be at all times relevant to this appeal. See LAS Collection Mgt. v. Pagan, 447 Mass. 847, 849-850 (2006) (nonattorney agent may not represent principal in litigation). See also G. L. c. 221, § 41 (establishing penalties for unauthorized practice of law); G. L. c. 221, § 46A (only licensed attorney in good standing shall practice law).
We do not address the tribe's contention, raised for the first time on appeal, that the parties to the underlying litigation had agreed to notify the tribe of the court's actions affecting the tribe's motions. See Moronta v. Nationstar Mtge., LLC, 88 Mass.App.Ct. 621, 626 n.12 (2015), S_.C., 476 Mass. 1013 (2016) ("We do not address arguments raised for the first time on appeal").
We acknowledge the briefs of the Munsee-Delaware Nation and the North American Indian Center of Boston in support of the tribe's appeal on this and other issues.
To prevail on a motion to file a late notice of appeal under Mass. R. A. P. 14 (b), a litigant must demonstrate both "good cause" for the failure to file a timely appeal, see id., and that the issue it seeks to present on appeal is "meritorious or substantial in the sense of presenting a question of law deserving judicial investigation and discussion." Commonwealth v. Barclay, 424 Mass. 377, 379 (1997), quoting Tisei v. Building Inspector of Marlborough, 3 Mass.App.Ct. 377, 379 (1975). We review the denial of such a motion, and the denial of the motion for reconsideration, for error of law or abuse of discretion. Troy Indus., Inc. v. Samson Mfg. Corp., 76 Mass.App.Ct. 575, 581 (2010). "[T]he burden of showing an abuse of discretion is a difficult one to carry." Id.
We appreciate the tribe's concerns about the project in the underlying litigation and do not reach our decision lightly. We accept the tribe's representation that it lacks the financial resources to hire a lawyer and that it has been unable to recruit pro bono representation, and have no reason to question the parties' belief that the tribe will continue to press its right to appear "pro se" through a nonlawyer representative in future litigation. On balance, however, we are not persuaded that this case is the appropriate vehicle for resolving those issues.
The single justice concluded that the tribe failed to demonstrate good cause for enlarging the time for filing its notice of appeal in the Superior Court. There was no error in that determination. "Good cause" "is meant to apply to circumstances that are unique or extraordinary, not to any 'garden-variety oversight.'" Shaev v. Alvord, 66 Mass.App.Ct. 910, 911 (2006), quoting Feltch v. General Rental Co., 383 Mass. 603, 613-614 (1981). The thesis of the tribe's argument - that the court's failure to notify a litigant of a ruling is "good cause" where the litigant itself did not make timely inquiry into whether the motion has been ruled on -- is one that we have previously addressed and rejected. See BJ's Wholesale Club, Inc. v. City Council of Fitchburg, 52 Mass.App.Ct. 585, 588 (2001) ("'simple case of reliance by the parties on the clerk's duty to send notice of orders' where they had neglected 'their obligation to check the docket entries periodically'" not "excusable neglect" [citation omitted]). In the absence of good cause for the delay, the single justice was constrained to deny the tribe's motion. See Giacobbe v. First Coolidge Corp., 367 Mass. 309, 315-316 (1975) (appellate courts' discretion under appellate rules contingent on movant's "showing of 'excusable neglect' or 'good cause,' to prosecute an appeal notwithstanding his failure to comply with a procedural time limitation"). There was no error in the single justice's ruling.
The tribe's reliance on Mass. R. Civ. P. 60, 365 Mass. 828 (1974), as the relevant standard is misplaced.
The single justice considered the question in terms of "excusable neglect." For the purposes of deciding a motion under rule 14 (b), the concepts of "excusable neglect" and "good cause" are equivalent. See Commonwealth v. Trussell, 68 Mass.App.Ct. 452, 454 (2007) (good cause standard under rule 14 "no less exacting" than standard of "excusable neglect" set forth in Mass. R. A. P. 4 [c]).
Where there was no error or abuse of discretion in the single justice's denial of the tribe's motion to enlarge the time for filing its appeal, it follows that his denial of the tribe's motion for reconsideration of that ruling was correct.
Given these conclusions, we do not reach the merits of the tribe's remaining arguments on appeal and express no opinion about them.
Conclusion.
The orders of the single justice entered February 26, 2021, and March 18, 2021, are affirmed.
So ordered.
Green, C.J., Meade, Desmond, Hand & Brennan, JJ.
We do not consider the tribe's argument that it had a "failsafe arrangement" with some or all parties to the underlying action. See note 4, supra.