Opinion
22-P-48
11-02-2022
BENJAMIN L. HALL, trustee [1] v. ZONING BOARD OF APPEALS OF EDGARTOWN & others. [2]
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 plaintiff trustee, Benjamin L. Hall (Hall), appeals pursuant to Rule 15.0 (b) (2) (A) of the Rules of the Appeals Court, as appearing in 97 Mass.App.Ct. 1010 (2020), from the December 9, 2021 orders of a single justice of this court that (1) denied Hall's various motions regarding the prior dismissal of an appeal from a Land Court judgment and (2) ordered that a notice of dismissal be sent to the Land Court. We affirm.
Background. Hall commenced an action in Land Court challenging various actions of the defendants. A judge dismissed the complaint. Hall appealed, and on May 3, 2021, the appeal was docketed in this court as No. 21-P-387. Thereafter, Hall sought and obtained two enlargements of time totaling 102 days,until September 24, 2021, to file his brief and record appendix. On October 4, 2021, ten days after Hall failed to timely file those documents or any further motion to enlarge, the clerk issued a notice preceding dismissal under Rule 19.0(a)(2) of the Rules of the Appeals Court, as appearing in 97 Mass.App.Ct. 1012 (2020) (M.A.C. Rule 19). On October 7, 2021, Hall moved once again to enlarge the time to file his brief and record appendix to November 17, 2021, and the defendants filed an opposition. On October 8, 2021, a single justice allowed the enlargement to the date Hall requested, but cautioned Hall: "No further enlargements."
The appeal was docketed on May 3, 2021, RA7, making Hall's brief due forty days later, i.e., on June 14, 2021. See Mass. R. A. P. 19 (a) (1), as appearing in 481 Mass. 1642 (2019). September 24, 2021, was 102 days after that original due date.
This was a different single justice from the one who issued the December 9, 2021 order, discussed infra, that Hall now appeals.
On November 19, 2021, Hall having filed nothing further, the clerk entered an order of dismissal under M.A.C. Rule 19.0(a) (3) . The notice stated, among other things: "Please note that if no action is taken in accordance with M.A.C. Rule 19.0(c) the case will be dismissed to the Trial Court in 14 days from issuance of this notice."
On December 3, 2021,Hall filed a motion, which for convenience we refer to as the "stay motion," seeking an order to (1) stay appellate proceedings until January 25, 2022;(2) suspend the rules pursuant to Mass. R. A. P. 2, as appearing in 481 Mass. 1603 (2019); and (3) allow him to file, on January 25, 2022, a motion for reconsideration and to vacate the dismissal and reinstate the appeal, and leave to then file a brief and appendix. The motion asserted (as had several previous motions) that Hall's counsel was experiencing medical issues and needed more time to recover before he could file an adequate brief and record appendix, but expected to be able to do so by the "requested extended filing date." Hall simultaneously filed a motion to impound (or permit provisional filing and in camera inspection of) materials to be submitted later that would set forth the details of counsel's medical issues.
The motion, and the motion to impound discussed infra, were actually filed on December 6, 2021, but a single justice treated them as having been filed on December 3, based on Hall's assertion that he had encountered difficulties with the court's electronic filing system.
Hall sought to stay, among other things, issuance of the notice of dismissal to the Land Court.
On December 9, 2021, the single justice denied the stay motion, ruling as follows:
"A motion to stay appellate proceedings after the appeal has been dismissed is inconsistent with Appeals Court Rule 19.0(c). Construing the plaintiff's motion as a motion to reinstate the appeal and enlarge the time to file the
plaintiff's brief and appendix to 1/25/2022, the motion is denied. A notice preceding dismissal was sent on October 4, 2021. On October 8, 2021, [a prior single justice] ordered that the plaintiff's brief and appendix be filed by 11/17/2021, with no further enlargements. The plaintiff filed nothing until 11[:]45 £.M. sixteen days after that date, and fourteen days after the appeal was dismissed. Accordingly, the motion is denied and notice of dismissal shall be sent to the Land Court."
The single justice denied the impoundment motion as moot. Hall then filed this appeal from the orders denying his motions.
Discussion.
1. Dismissal under M.A.C. Rule 19.0.
Hall first contends that on November 19, 2021, the clerk erred in issuing a notice of dismissal under M.A.C. Rule 19.0(a)(3), which ordinarily leads (and in this case did lead) to dismissal unless the brief and record appendix are filed within fourteen days. Hall argues that the clerk should instead have issued a second notice preceding dismissal under M.A.C. Rule 19.0(a)(2), giving him twenty-one days in which to seek a further enlargement of time. Hall notes that, in response to the first notice preceding dismissal (issued on October 4, 2021), he sought and obtained an enlargement until November 17, 2021, of the time to file his brief and record appendix. Although that new deadline was expressly set with "[n]o further enlargements," Hall argues that the enlargement nevertheless wiped the M.A.C. Rule 19.0 slate clean. He asserts that when he failed to meet that new deadline, he was entitled to begin the rule 19.0 dismissal process all over again, starting with a twenty-one day opportunity to seek another enlargement under rule 19.0(a)(2).
A notice of dismissal under rule 19.0(a)(3) triggers the operation of rule 19.0(c), which provides in pertinent part as follows:
"The clerk shall notify the lower court and the parties that the appeal has been dismissed as to that particular appellant unless, prior to the expiration of 14 days from the clerk's entry of notice of dismissal of the appeal, the appellant serves and files (1) a motion to reinstate the appeal and for leave to file a late brief or appendix or status report and (2) the brief or appendix or status report (whichever documents are overdue)."
A notice under rule 19.0(a) (2) would have informed the parties that the appeal would be:
"dismissed for lack of prosecution unless, within 21 days of the date of the notice, the clerk shall receive (A) a motion by th[e] appellant to enlarge to a date certain set forth in the motion the time for serving and filing the brief or appendix, and (B) an affidavit of the attorney of record for the appellant . . . which shall set forth good cause for the enlargement."
The problem is that Hall failed to make any such argument in his stay motion to the single justice. Nowhere did he suggest that the clerk's issuance of the notice of dismissal was contrary to M.A.C. Rule 19.0 or that proceeding under M.A.C. Rule 19.0(c) (which required him to file the brief and record appendix within fourteen days to avoid dismissal) was not the next step under the rule. Rather, Hall sought, in pertinent part, an enlargement of more than seven weeks, until January 25, 2022, of the time to file his brief and record appendix and a motion to vacate the dismissal.Hall's newly-minted argument is therefore waived.See Albert v. Municipal Court of Boston, 388 Mass. 491, 493-494 (1983) (appellant's argument not made in lower court is waived on appeal).
That motion to vacate would presumably assert that the brief and record appendix had by that time been filed, making dismissal unnecessary.
In any event, we would reject it, both as an illogical reading of M.A.C. Rule 19.0 that would undermine its purposes and as inconsistent with the condition on the October 8, 2021 order, that Hall would receive "[n]o further enlargements."
Hall makes no other challenge to the single justice's enforcement of M.A.C. Rule 19.0. "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" (quotations and citation omitted). Howard v. Boston Water & Sewer Comm'n, 96 Mass.App.Ct. 119, 123 (2019). With regard to M.A.C. Rule 19.0, Hall has shown neither.
2. Request to suspend rules. Hall next contends that the single justice abused his discretion by denying, without discussion, Hall's request(contained in his stay motion) to suspend the rules under Mass. R. A. P. 2, as appearing in 481 Mass. 1603 (2019), so as to allow Hall another seven weeks to file his brief and record appendix. Relatedly, Hall argues that the single justice abused his discretion by denying that request to suspend the rules without first allowing Hall's impoundment motion and reviewing documents detailing counsel's medical condition. We are not persuaded.
The single justice was entitled to consider Hall's and counsel's history of missing deadlines in this appeal. Hall had previously obtained an enlargement until August 12, 2021, of the time to file his brief and record appendix. He missed that deadline (established at his request) and did not file a motion for further enlargement until the next day. He was then granted an enlargement until September 24, 2021. He missed that deadline (again established at his request) and did not file anything until two weeks later, after the clerk issued the October 4, 2021 rule 19.0(a)(2) notice preceding dismissal. He was then granted an enlargement until November 17, 2021, but only over the defendants' opposition and with the caveat from the prior single justice that there would be "[n]o further enlargements." He missed that deadline (once again established at his request) and did not file anything until two weeks later, after the clerk entered the M.A.C. Rule 19.0(a)(3) order of dismissal. What he filed was not the brief and record appendix called for by M.A.C. Rule 19.0(c), but, instead, yet another request for an enlargement.
Never in Hall's various motions did he recognize that he had already missed the deadlines previously established at his own request. Nor was he particularly diligent about taking remedial action after missing the September 24 or November 17 deadlines. Instead, in each instance, he did not act until after the clerk, by moving forward in the M.A.C. Rule 19.0 dismissal process, reminded him of the need to do so.
In these circumstances, the single justice reasonably could conclude that the real problem was not counsel's medical condition, but Hall's or his counsel's consistent failure to take court deadlines seriously. For this reason we see no abuse of discretion in the single justice's denial of the impoundment motion; counsel's medical issues were not a dispositive factor.Likewise, whether Hall presented a meritorious issue on appeal was not a dispositive factor. The single justice reasonably could conclude that suspending the rules and allowing yet another lengthy enlargement would not result in the filing of the brief and record appendix, and the eventual consideration of the merits of the appeal, but would lead only to further delay.
Hall asserts that counsel's conditions "may have extended to meet the definition as a disability or handicap" and should have been accommodated. Cf. McDonough, petitioner, 457 Mass. 512, 518 (2010). We take judicial notice that in a recent appeal involving the same appellant and his counsel -- like this case, an appeal from a single justice's order dismissing an appeal for lack of prosecution under M.A.C. Rule 19.0 -- the appellant's motion for an enlargement of time included a reference to a disability. The appellant was advised to "consult with the Court's materials on the Americans with Disabilities Act accessibility, available at http://www.mass.gov/courts/court-info/courthouses/ada- accessibility/. A copy of the Appeals Court's ADA policy and a Request for Reasonable Accommodation form is sent to the plaintiff with this notice." Shute Building Realty Trust vs. Edgartown Historic Dist. Comm'n, No. 21-P-168 (docket entry March 31, 2021). Hall and his counsel are aware of the process for requesting an accommodation for a disability and did not do so here.
"[A]ppellees, particularly, are entitled to the progress of appeals with reasonable dispatch and to some protection against purposeful stretching out of appellate proceedings. When an appellant files a notice of appeal he must treat that step as something more than taking out an option to appeal" (quotations and citations omitted). Hawkins v. Hawkins, 397 Mass. 401, 409 (1986). Hall and his counsel did not do so here. "A litigant's inability to adhere to procedural rules . . . frequently[,] and without violation of due process rights[,] results in the denial of motions and dismissals of appeals." Lawrence Sav. Bank v. Garabedian, 49 Mass.App.Ct. 157, 164 (2000) . The single justice did not abuse his discretion in denying the request to suspend the rules.
Conclusion.
The December 9, 2021 orders denying the stay motion and the motion to impound are affirmed.
The defendants' request for appellate attorney's fees is denied.
So ordered.
Desmond, Sacks & D'Angelo, JJ.
The panelists are listed in order of seniority.
Of the Shute Building Realty Trust.