Opinion
No. 14–P–1510.
05-12-2016
DONALD M. MURRAY, executor, v. KATHLEEN KURTZ & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from so much of the trial judge's order dated August 8, 2013, that allows the defendants' motion to strike the plaintiff's notice of appeal and denies the plaintiff's motion to file a notice of appeal late. We affirm, essentially for the reasons well explained in the judge's thoughtful memorandum and order.
On March 5, 2014, the plaintiff filed a motion before a single justice of this court asking for an enlargement of time to file his notice of appeal pursuant to Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979). That motion was consolidated with the present appeal.
After the plaintiff filed a medical malpractice action against multiple defendants arising out of the death of his ninety-three year old mother, the medical malpractice tribunal found that there was not sufficient evidence as to any of the defendants. The plaintiff posted the resulting bond.
Prior to trial, a stipulation of dismissal was filed as to defendants Massachusetts General Hospital, Paul Currier, and Nicholas Merry, and a judgment entered pursuant to Mass.R.Civ.P. 58(a), as amended, 371 Mass. 908 (1977).
After filing a second amended complaint, a trial before a jury was held over multiple days. At trial, motions for a directed verdict by defendants Cape Cod Hospital and Rebecca Hodgkinson were allowed by agreement. After a hearing, the unopposed motions for directed verdicts by defendants Kathleen Kurtz and Jayalakshmi Punuri were likewise allowed. As to the remaining defendants, Jorge Alfonso and Saralyn A. MacKenzie, the jury found that they were not negligent.
An assistant clerk, substituting for a vacationing colleague who had been assigned to the court session where the trial was held, issued a “JUDGMENT ON FINDING OF THE COURT,” which entered on February 25, 2013, listing all of the original plaintiffs and defendants in the caption, and indicating that those plaintiffs were to take nothing and that defendants Alfonso and MacKenzie were to recover the costs of the action. Subsequently, the original assistant clerk, who had been present for most of the trial, issued a judgment on the motions for directed verdicts as to Cape Cod Hospital, Kurtz, Punuri, and Hodgkinson, along with a corrected judgment on the jury verdict as to Alfonso and MacKenzie; both judgments, dated March 1, 2013, were entered on March 5, 2013.
In the second amended complaint, the plaintiff no longer listed family members as plaintiffs; certain defendants were also omitted.
That judgment also disposed of claims that the plaintiff brought individually against those defendants as well as against Alfonso and MacKenzie.
On March 21, 2013, the plaintiff filed, pro se, a notice of appeal “from Final Judgment on all counts in the above captioned case entered on February 25, 2013.” The caption listed as defendants Cape Cod Hospital, Kurtz, Alfonso, Punuri, MacKenzie, Hodgkinson, Massachusetts General Hospital, Currier, and Merry. On April 9, 2013, Cape Cod Hospital, Kurtz, Alfonso, Punuri, MacKenzie, and Hodgkinson filed a motion to strike the plaintiff's notice of appeal for failure to comply with Mass.R.A.P. 3(c), as appearing in 430 Mass. 1602 (1999), and 4, as amended, 430 Mass. 1603 (1999). On April 25, 2013, the plaintiff filed an opposition and a cross motion to file his appeal late pursuant to Mass.R.A.P. 4(c), as amended, 378 Mass. 929 (1979). On August 8, 2013, after a hearing, the trial judge issued an order allowing the defendants' motion and denying the plaintiff's motion. On September 5, 2013, the plaintiff appealed.
The August 8, 2013, order also decided other motions, including the defendants' motions for return of the medical malpractice tribunal bond and for costs, and the plaintiff's motion for costs. The plaintiff's September 5, 2013, notice of appeal did not include so much of the order that addressed those motions.
We review the judge's August 8, 2013, order for abuse of discretion. See Stephens v. Global NAPs, 70 Mass.App.Ct. 676, 682 (2007) ; Scheuer v. Mahoney, 80 Mass.App.Ct. 704, 708 (2011). The plaintiff concedes that his March 21, 2013, notice of appeal was “technically deficient,” but argues that this was “inconsequential.” In fact, because the February 25, 2013, judgment did not even mention four defendants—Cape Code Hospital, Kurtz, Punuri, and Hodgkinson—whose motions for a directed verdict had been allowed, it did not dispose of the claims against them and was, therefore, not final. See Mass.R.Civ.P. 54, as amended, 382 Mass. 829 (1980), and 58, as amended, 371 Mass. 908 (1977); Afarian v. Massachusetts Elec. Co., 449 Mass. 257, 259 n. 5 (2007). As to defendants Alfonso and MacKenzie, the February 25, 2013, judgment was deficient in that it referred to the “trial before the Court” and a “finding having been rendered” whereas judgment entered on a jury verdict. Also, the February 25, 2013, judgment was superseded by the corrected judgments dated March 1, 2013, prior to the plaintiff filing his notice of appeal on March 21, 2013. As a result, nothing prevented the plaintiff from listing the March 1, 2013, judgments in that notice of appeal.
To the extent the plaintiff relies on the fact that he filed his notice of appeal pro se, this reliance is misplaced because he was represented by counsel at the time he did so. In addition, even if he were acting pro se, he is held to the same standard as those represented by counsel. See Maza v. Commonwealth, 423 Mass. 1006, 1006 (1996). Finally, the plaintiff argues in his brief that “one can reasonably infer that he simply was not aware of the corrected judgments at the time he submitted his notice of appeal.” However, neither the plaintiff nor his counsel made this assertion below. In sum, the plaintiff failed to show that there was any excusable neglect in his failure to file a timely appeal from the March 1, 2013, judgments. See Mass.R.A.P. 4(c) ; Stephens v. Global NAPs, supra at 682–683.
We are satisfied that the judge did not abuse her discretion. For the reasons set out above, so much of the August 8, 2013, order that allows the defendants' motion to dismiss the plaintiff's appeal and denies the plaintiff's motion to file his appeal late is affirmed. The plaintiff's motion before this court requesting an enlargement of time to file his notice of appeal is denied.
The Mass.R.A.P. 14(b) “standard is no less exacting than excusable neglect.” Troy Indus., Inc. v. Samson Mfg. Corp., 76 Mass.App.Ct. 575, 581 (2010), quoting from Commonwealth v. Trussell, 68 Mass.App.Ct. 452, 454 (2007).
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