Opinion
No. 12–P–184.
2013-03-22
ESTATE OF Jason Michael LITCHFIELD.
By the Court (CYPHER, KANTROWITZ & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Paul Litchfield appeals from decisions of a judge of the Probate and Family Court denying his motion for reconsideration or in the alternative motion for new trial, and his motion to amend findings of fact and conclusions of law. We affirm.
We are hard pressed to find an appealable order from which the appellant filed a timely notice of appeal. To the extent he purports to argue on appeal that the judge erred in awarding Jason's mother's estate ninety-five percent of the settlement proceeds and him only five percent on the petition for instructions, he ignores that a default order entered against him on June 25, 2010, for failing to file a responsive pleading, and he did not appeal from that order. Rather, his “postjudgment” motions address an order dated April 22, 2011. Pursuant to the docket, only a citation informing interested parties that the administrator had filed his first and final account and that interested parties may object by following certain instructions and deadlines issued on April 22, 2011; no appealable order or judgment issued on that date. So far as the docket reveals, no order or judgment has entered approving the account. Any appeal from the first and final account is thus premature. Even if we were to treat one of his many filings as a motion for relief from the order of default issued on June 25, 2010, untimely though they are, the appellant has not shown good cause for failing to file a responsive pleading. See Mass.R.Civ.P. 55(c), as amended, 423 Mass. 1402 (1980). On two occasions the responsive pleadings filed by his siblings on his behalf were stricken as they are unauthorized to practice law in the Commonwealth. See LAS Collection Mgmt. v. Pagan, 447 Mass. 847, 849–850 (2006). When he engaged an attorney, his attorney failed to file a responsive pleading. Even after his attorney's pro hac vice status had been revoked, the appellant was given yet another opportunity to file a responsive pleading and he failed to file one signed by him or by an attorney representing him. On these facts, the judge acted well within his discretion.
Once a default order enters, one lacks standing to do anything other than move for relief from the default, which apparently was not done here. See, e.g., Johnny's Oil Co., Inc. v. Eldayha, 82 Mass.App.Ct. 705, 708–709 (2012).
The motion for appellate fees filed by Richard Johansen is allowed. He is to submit, within fourteen days, the specific amount requested, along with a breakdown of all fees and costs. The appellant may then, within seven days, submit a motion challenging the requested amounts. See Fabre v. Walton, 441 Mass. 9, 10–11 (2004). We recognize that, given the appellant's current status, collecting such fees might be difficult if not impossible. Nonetheless, they are appropriately awarded under these circumstances.
For these reasons, as well as for substantially those in the briefs of the appellees, we affirm.
Order dated June 25, 2010, affirmed.