Opinion
No. 12–P–630.
2013-04-8
GUARDIANSHIP of Kenneth E. SIMON, Sr. (NO.1).
By the Court (GRASSO, BROWN & GREEN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this appeal, the petitioner, attorney E. James Veara, claims that a single justice of this court abused his discretion in denying a motion for an enlargement of time to file a notice of appeal. See M.R.A.P. 14(b), as amended, 378 Mass. 939 (1979). The notice of appeal at issue is from a decree of the Probate and Family Court that ordered the petitioner to pay attorney's fees and costs to the children of the ward of whom he was guardian.
We discern no abuse of discretion and affirm the order of the single justice.
The children objected to the petitioner's first and final account, and are hereinafter referred to as the objectors.
The petitioner's essential argument is that the clerk of the Probate Court never provided notice that a motion under Mass.R.Civ.P. 63, 365 Mass. 831 (1974), had been denied, and that the petitioner did not check the docket until the usual appeal period had already expired. He also asserts there is a meritorious basis of appeal from the award of attorney's fees. Accordingly, he argues, good cause exists for allowing his late notice of appeal. An attorney's oversight and lack of notice of entry of a judgment, of its own force, constitutes neither excusable neglect nor good cause to extend the time for filing a notice of appeal. Troy Indus., Inc. v. Samson Mfg. Corp., 76 Mass.App.Ct. 575, 581 (2010). Nor does “the' simple case of reliance by the parties on the clerk's duty to send notice of orders' where they had neglected ‘their obligation to check the docket entries periodically.’ “ BJ's Wholesale Club, Inc. v. City Council of Fitchburg, 52 Mass.App.Ct. 585, 588 (2001), quoting from Abbott v. John Hancock Mut. Life Ins. Co., 18 Mass.App.Ct. 508, 513 (1984). The petitioner has not shown good cause for failing to check the docket entries between the week of September 12, 2011, and November 3, 2011. Nor does the suggestion of a clerk's error, without more, create “unique and extraordinary” circumstances. Feltch v. General Rental Co., 383 Mass. 603, 614 (1981).
More fundamentally fatal to this appeal, the petitioner operates under a misconception that denial of the rule 63 motion is what triggered the time for filing his notice of appeal from the decree ordering attorney's fees. A rule 63 motion is not within the enumerated postjudgment motions that toll the time for filing a notice of appeal. See Mass.R.A.P. 4(a), as amended, 430 Mass. 1603 (1999). See objectors' brief at pages nineteen through twenty-one. The denial of the petitioner's motion under Mass.R.Civ.P. 59, 365 Mass. 827 (1974), is what commenced the running of the appeal period from the decree ordering attorney's fees, and the petitioner does not deny his receipt of notice of that denial. In this posture, it can hardly be said that the single justice abused his discretion in denying the petitioner's motion to file a late notice of appeal. See Troy Indus., Inc. v. Samson Mfg. Corp., supra at 581 (abuse of discretion “characterized by arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice”).
As requested, the objectors shall be awarded their fees and costs in this appeal. See G.L. c. 215, § 45. In accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10–11 (2004), the objectors shall, within fourteen days, file with this court and serve on the petitioner a motion for determination of the amount of their appellate attorney's fees, supported by an affidavit detailing such fees. The petitioner may, within fourteen days thereafter, file with this court and serve on the objectors an opposition.
Order of the single justice denying motion to file late notice of appeal affirmed.