Opinion
22-P-74
12-14-2022
Benjamin L. HALL, trustee, & others v. BOARD OF SELECTMEN OF EDGARTOWN & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this consolidated appeal, the plaintiffs argue that the single justice erred in denying a motion to extend the time for filing a brief and record appendix, in failing to impound certain records relating to the motion to extend, and finally in dismissing their appeal and failing to allow a motion for reconsideration of the dismissal. We affirm.
Background. The plaintiffs filed suit in 2019 under the "ten taxpayer statute," G. L. c. 40, § 53, claiming certain improprieties by the defendants in using funds from the Community Preservation Act to acquire property located at 66 Main Street in Edgartown, restore it, and then renovate it. From inception, the case has been delayed by various continuances requested by the plaintiffs, including plaintiffs’ five granted extensions to serve the complaint on the Town. The Town filed a motion to dismiss on October 20, 2020, along with the plaintiffs’ emergency motion for an extension of time "to more formally" respond to the motion to dismiss, which was granted. Another emergency motion that was filed on November 24, 2020, was granted, giving the plaintiffs until December 23, 2020, to respond. A hearing on the motion to dismiss was scheduled for December 23, 2020, but the plaintiffs filed a third emergency motion to extend the time to file a response.
On December 23, 2020, the Superior Court judge heard argument on the motion to extend. At the hearing, plaintiffs’ counsel (1) told the court about some medical issues and (2) provided some documentation for an in camera review, and the court allowed the plaintiffs’ motion to impound the personal medical information. Despite the continuances for time to prepare an opposition to the motion to dismiss, the plaintiffs filed nothing additional, and, after a hearing, the motion to dismiss was allowed.
Plaintiffs’ counsel is Benjamin L. Hall, Jr.
Sensing the delays were getting out of hand, the motion judge noted that further personal medical information should be sent to the court in a sealed envelope but that "(p)laintiff's counsel would have better served his client by spending time on preparing a response to the long-pending motion to dismiss rather than preparing an 8 page motion to impound."
The plaintiffs appealed the dismissal on July 6, 2021, and, by order of this court, a brief and record appendix were due August 16, 2021. On August 12, 2021, the plaintiffs filed a motion to extend. The single justice allowed the extension until October 14, 2021, noting "[n]o further enlargements shall be granted in the absence of a genuine emergency." When the plaintiffs did not file a brief and record appendix, on October 21, 2020, a notice was sent pursuant to Rule 19.0 of the Rules of the Appeals Court, as appearing in 97 Mass. App. Ct. 1011 (2020), of impending dismissal. On November 10, 2021, the plaintiffs filed a motion to extend the due date of their brief and record appendix and requested this court to conduct a nonpublic hearing and impound the transcript of that hearing. In the motion, the plaintiffs referenced medical conditions suffered by the plaintiffs’ counsel and requested that the court allow the submission of detailed medical records and order them impounded. The single justice denied the motion to enlarge and to impound, stating the following in an order dated November 24, 2022:
"On 8/18/2021, the single justice entered an order allowing the defendant's motion to enlarge time to file the brief and record appendix to 10/14/2021, stating no further enlargements shall be granted absent a genuine emergency. The defendant did not comply with the single justice's 08/18/2021 order. The defendant missed the 10/14/2021 deadline, a notice preceding dismissal entered on 10/21/2021, and it wasn't until 11/10/2021 that the defendant filed the current motion. The motion is denied."
We note that the order should have stated "plaintiffs" rather than "defendant."
On November 24, 2021, pursuant to rule 19.0, the appeal was dismissed. On December 9, 2021, the plaintiffs filed a motion to reconsider, which the single justice denied on December 14, 2021.
Discussion. We review the actions of the single justice for an abuse of discretion. "It is well settled that this court will not reverse an order of a single justice in the absence of an abuse of discretion or clear error of law" (citation omitted). Howard v. Boston Water & Sewer Comm'n, 96 Mass. App. Ct. 119, 123 (2019). The standard for abuse of discretion is "whether the judge's decision resulted from ‘a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives.’ " Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Here, the plaintiffs claim that the single justice abused his discretion by failing to consider whether certain medical issues constituted a genuine emergency absolving him of the consequences for not filing an appellants’ opening brief and record appendix. The plaintiffs have failed to provide this court with any evidence to support that contention, other than generalized and vague statements about the practice of law during the pandemic and counsel's own health. The plaintiffs were told in clear terms by another single justice that no further continuances would be allowed absent a "genuine emergency."
Under the August 18, 2021, order, the plaintiffs bore the burden of providing the court evidence of a genuine emergency in order to obtain any possibility of a further enlargement. The plaintiffs failed to do so. Instead, twenty-seven days after the deadline passed and twenty days after the sending of a notice preceding dismissal, the plaintiffs suggested an in camera review where they would attempt to prove that a genuine emergency had occurred justifying their delay. The plaintiffs bore the burden of demonstrating why their suggested in camera review was necessary. S.J.C. Rule 1:15, § 1 (b), as appearing in 472 Mass. 1301 (2015); Rule 2 of the Uniform Rules on Impoundment Procedure. The plaintiffs have failed to show what error of law or abuse of discretion the single justice committed by refusing to conduct the suggested in camera review requested only after the plaintiffs had already missed their required deadline and after failing to provide the single justice with any sufficient reason justifying impoundment. The single justice noted that the plaintiffs had failed to meet the required deadline for filing and failed to show why this failure was excusable neglect. This is insufficient to establish an abuse of discretion.
A more standard practice would have been for the plaintiffs to have filed the medical records as an attachment to a motion for enlargement, and, using our electronic filing system, marked them as impounded material before arguing in the motion for their impoundment. S.J.C. Rule 1:15, § 1 (b), as appearing in 472 Mass. 1301 (2015); Rule 2 (a) (1) of the Uniform Rules on Impoundment Procedure.
Orders of the single justice dated November 24, 2021, and December 14, 2021, affirmed.