Opinion
19-P-848
07-10-2020
MIROSLAV PREDNY v. BOARD OF SELECTMEN OF WINCHESTER.
NOTICE: 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
Miroslav Predny appeals from the order denying his motion for reconsideration of a judgment dismissing as moot his claims against the Winchester select board (board). We affirm.
Background. On March 21, 2019, Predny sought a preliminary injunction to prevent the town of Winchester (town) from holding a vote on a tax levy override pursuant to G. L. c. 59, § 21C, planned for March 26, 2019. On March 25, 2019, the day before the vote, the motion judge held a hearing and denied Predny's request for a preliminary injunction, stating that Predny had no likelihood of success on the merits. The vote went forward on March 26, 2019, and voters approved the override. The next day, the same judge dismissed Predny's complaint as moot.
Thirty days later, on April 26, Predny filed a motion to reconsider. The motion was dated April 24, 2019. On May 1, the same judge denied the motion. Predny filed a notice of appeal on May 9, 2019. The notice purported to appeal from the "judgement [sic] entered against him" on May 1, 2019.
No "judgment" entered on that day. The only entry is for the order denying the motion to reconsider.
Discussion. Timeliness of appeal. Predny filed his motion to reconsider on April 26, 2019, thirty days after judgment entered on March 27, 2019. His appeal was filed within ten days of the denial of the motion to reconsider, and was therefore timely as to that motion, but was filed more than thirty days after the judgment entered. It is therefore untimely as to the judgment, unless the appeal period was tolled by the motion to reconsider. See Mass. R. A. P. 4 (a) (2), as appearing in 481 Mass. 1606 (2019). Because the motion to reconsider was served more than ten days after the entry of judgment, the thirty-day time period in which to file the notice of appeal from the judgment was not tolled. See id. The notice of appeal was timely as to the denial of the motion to reconsider, but was not timely as to the underlying judgment. See id.; Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974); Mass. R. Civ. P. 60, 365 Mass. 828 (1974). See also Piedra v. Mercy Hosp., 39 Mass. App. Ct. 184, 188 (1995), quoting Smith & Zobel, Rules Practice § 60.3, at 472 (1977) ("an order denying [r]ule 60 (b) relief is appealable; but the appeal raises only the correctness of the order itself, not the purported defects in the underlying judgment"). Consequently, only the motion judge's order denying Predny's motion for reconsideration is before us.
An appeal from an order denying or allowing a motion for preliminary injunctive relief may be taken to a panel of the Appeals Court pursuant to G. L. c. 231, § 118, par. 2., by filing a notice of appeal within thirty days. However, the statutory appeal period set by c. 231, § 118, is not subject to the tolling provisions of Mass. R. A. P. 4 (a). See Manousos v. Sarkis, 382 Mass. 317, 322 (1981); McGrath v. McGrath, 65 Mass. App. Ct. 670, 672 (2006).
As noted, the motion to reconsider was dated April 24, 2019. Accordingly, it could not have been served prior to that date.
Since the Massachusetts Rules of Appellate Procedure were amended in 2013, the filing of a motion "to alter or amend a judgment under [r]ule 59 or for relief from judgment under [r]ule 60 (b), however titled," may toll the time period for an appeal, "but only if either motion is served within [ten] days after entry of judgment." Mass. R. A. P. 4 (a) (2) (C), as appearing in 481 Mass. 1606 (2019). See Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 857 n.20 (2019).
Motion for reconsideration. We review the denial of a motion to reconsider for abuse of discretion. See Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 313 (2009). We find an abuse of discretion only where the judge "made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The judge did not abuse his discretion. The election had already taken place. There has been no showing that this case will repeat in the same form, or if it did, a timely complaint for review would evade review. See generally Lockhart v. Attorney Gen., 390 Mass. 780, 785 (1984) ("If, in fact, the issues should reappear, they need not evade review before they become moot"). Moreover, "a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes" (quotation omitted). Tsongas v. Secretary of Commonwealth, 362 Mass. 708, 720-721 (1972).
Predny did not address the mootness question either before the motion judge or on appeal, and has therefore waived his arguments in that regard. See G.B. v. C.A., 94 Mass. App. Ct. 389, 397 (2018), quoting Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) ("An issue not raised or argued below may not be argued for the first time on appeal"). See also Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("[t]he appellate court need not pass upon questions or issues not argued in the brief"). As presented, this case does not involve a question of public policy so important as to justify an exception to the mootness doctrine. See Tsongas, 362 Mass. at 712. Contrast Sholley v. Secretary of the Commonwealth, 59 Mass. App. Ct. 121, 123 (2003).
Even if we were to reach the primary issue that was raised both before the motion judge and on appeal, Predny would not prevail. Predny argued to the motion judge that the ballot question did not adequately convey that the override was perpetual, or provide adequate information about the long-term fiscal implications of the override. In order to obtain an injunction, the plaintiff must demonstrate a likelihood of success on the merits. See generally Loyal Order of Moose, Inc. v. Board of Health of Yarmouth, 439 Mass. 597, 601 (2003). The ballot question tracked the model language in the guidance promulgated by the Commissioner of Revenue. Absent a better showing that the guidance was unlawful, the plaintiff did not establish a likelihood of success on the merits, and the judge therefore did not abuse his discretion in denying the motion for a preliminary injunction. Moreover, "[w]hen a party seeks to enjoin governmental action, a judge is also 'required to determine that the requested order promotes the public interest, or, alternatively, that the equitable relief will not adversely affect the public.'" Id., quoting Commonwealth v. Mass. CRINC, 392 Mass. 79, 89 (1984). Predny has not shown either a likelihood of success on the merits, or that the public interest would be served by voiding the results of the election.
Order denying motion for reconsideration affirmed.
By the Court (Sullivan, Kinder & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 10, 2020.