Opinion
15-P-1031
04-06-2016
HARVARD 45 ASSOCIATES, LLC v. BAHIG F. BISHAY & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendants appeal the dismissal of their appeal to the Appellate Division of the District Court department for deficient and untimely notice. We find no error, and affirm.
Background. This case arises out of a summary process action to evict the defendants, Bahig and Mary Bishay (collectively, the Bishays), from the premises located at 163 Blue Hill Drive, Westwood. It is unnecessary to set forth the underlying facts. The plaintiff, Harvard 45 Associates, LLC, obtained a judgment for possession on April 17, 2008. Five years later, after failing to perfect an appeal from that judgment, the Bishays filed three motions in District Court: 1) to reopen the case, 2) for declaratory judgment, and 3) to schedule an assessment of damages hearing. These motions were denied after hearing on December 12, 2013. Due to a failure by the clerk of the District Court to update the Bishays' address, the Bishays -- self-represented at the time -- were not aware of the denial of the motion until Bahig Bishay inquired at the clerk's office on December 30, 2013, and discovered that the clerk had never entered the change of address. The Bishays' notice of appeal was filed on January 9, 2014, seventeen days after the deadline for filing a notice of appeal with the Appellate Division of the District Court (Appellate Division). Dist./Mun. Cts. Appellate Division Appeal Rule 4(a) (2013). On February 3, 2015, the Appellate Division dismissed the Bishays' appeal as untimely, recognizing that the Bishays did not seek leave to enlarge the time prescribed for filing the appeal.
A detailed factual background may be found in several unpublished decisions of this court pursuant to our rule 1:28. See Bishay v. Brighton Ave. Assocs., LLC, 68 Mass. App. Ct. 1120 (2007); Bishay v. Brighton Ave. Assocs., LLC, 71 Mass. App. Ct. 1102 (2008); Harvard 45 Assocs., LLC v. Bishay, 76 Mass. App. Ct. 1109 (2010); Bishay v. Brighton Ave. Assocs., LLC, 85 Mass. App. Ct. 1114 (2014).
Discussion. Rule 4(c) of the District/Municipal Court Rules for Appellate Division Appeal (2013) provides that "[u]pon a showing of excusable neglect or other good reason, the trial court may extend the time for filing the notice of appeal by any party for a period not to exceed ten days from the expiration of the time otherwise prescribed by this rule." Excusable neglect is found only in extraordinary cases where the failure to file a timely notice of appeal is caused by circumstances beyond the party's control. See Mailer v. Mailer, 387 Mass. 401, 406 (1982). Excusable neglect is not found when parties rely on the clerk's duty to send notice of orders in circumstances such as exist in this case, where the Bishays did not check the docket entries periodically. See BJ's Wholesale Club, Inc. v. City Council of Fitchburg, 52 Mass. App. Ct. 585, 588 (2001).
Even if we assume that the Bishays satisfied the standard of excusable neglect, the Appellate Division was correct in dismissing their appeal because the Bishays failed to comply with other provisions of the appellate rules. For example, they failed to include a concise statement of issues in their notice of appeal as required by Dist./Mun. Cts. Appellate Division Appeal Rule 3(c)(2) (2013). Although the Bishays contend that the notice of appeal did include such a statement, it included only bald references to the order entered on December 12, 2013, with no explanation of the issues on appeal. The notice of appeal was not in compliance with the rule. See, e.g., New England Technical Sales Corp. v. SEEQ Technology, Inc., 1996 Mass. App. Div. 191, 192, District Court, Appellate Division, Northern District (Nov. 8, 1996) (omission of issue from notice of appeal "effectively placed it beyond the limits of appropriate appellate review"). For this reason alone, the appeal to the Appellate Division was properly dismissed.
Harvard 45 Associates, LLC's request for appellate attorney's fees is denied.
Order dismissing appeal to the Appellate Division affirmed.
By the Court (Milkey, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 6, 2016.