Opinion
21-P-672
11-01-2022
DEUTSCHE BANK NATIONAL TRUST COMPANY [1] v. WENDY HARRINGTON.
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
Pro se defendant Wendy Harrington is seeking review of orders by a single justice denying her motions requesting leave to file a late appeal and to reconsider. Seeing no error of law or abuse of discretion we affirm.
Although the defendant is pro se, she is held to the same standards as litigants represented by counsel. See Rasheed v. Commonwealth, 440 Mass. 1027, 1027 (2003).
The motion was treated by the single justice as a motion to file a late notice of appeal under Mass. R. A. P. 14 (b), as appearing in 481 Mass. 1626 (2019).
On March 31, 2017, judgment entered for the plaintiff, Deutsche Bank National Trust, in the Superior Court. The defendant did not timely appeal from the judgment. On June 3, 2021, the defendant filed a motion with the single justice seeking leave to file a late appeal of the March 31, 2017 judgment. The single justice denied the motion after he determined that he did not have the authority to grant the requested relief. Likewise, on June 25, 2021, the single justice denied the defendant's motion to reconsider.
The first entry of a notice of appeal in the lower court docket is dated August 21, 2019.
"[W]e review the action of the single justice for errors of law and, if none appear, for abuse of discretion." Troy Indus., Inc. v. Samson Mfg. Corp., 76 Mass.App.Ct. 575, 581 (2010). An appellate court or single justice may enlarge the time to file a notice of appeal. See Mass. R. A. P. 14 (b), as appearing in 481 Mass. 1626 (2019). However, "neither the appellate court nor a single justice may enlarge the time for filing a notice of appeal beyond [one] year from the date of entry of the judgment or order sought to be reviewed." Id. Here, by the time this matter was before the single justice well over one year had passed from the date of the entry of judgment in the Superior Court. There was no error in the single justice's determination that the motion "must be denied as untimely" as he was without authority to grant the requested relief of permitting a late filing of a notice of appeal from the Superior Court judgment entered on March 31, 2017. See Troy Indus., 76 Mass.App.Ct. at 581. Since the single justice did not have the authority to enlarge the time for filing a late appeal we need not review for abuse of discretion. Where there was no error or abuse of discretion in the single justice's denial of the defendant's motion to enlarge the time for filing her appeal, it follows that his denial of the defendant's motion for reconsideration of that ruling also was correct.
See United States v. Gaubert, 499 U.S. 315, 325 (1991) ("[a] discretionary act is one that involves choice or judgment").
Conclusion.
The orders of the single justice entered June 4, 2021, and June 25, 2021, are affirmed.
So ordered.
Lemire, Singh & Englander, JJ.
The panelists are listed in order of seniority.