Opinion
19-P-1752
12-09-2021
Emory G. SNELL, Jr. v. Kate WALSH & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Emory G. Snell, Jr., alleges that he lost a ring during an emergency admission to the Boston Medical Center in 2015. When no ring was recovered, the plaintiff filed a small claims action in the Boston Municipal Court (BMC) seeking to recover the value of the property. The magistrate found for the defendants on the plaintiff's small claim; the plaintiff then filed a complaint commencing this action, seeking damages based on both the allegedly missing ring and on claims that the defendants violated his due process rights in the course of defending against the action in the BMC. It appears, however, that the plaintiff was subject to an order requiring him to obtain permission from the Regional Administrative Justice (RAJ) to file his complaint. In an order entered on March 15, 2019, the RAJ denied the plaintiff's request to file the complaint.
On the limited record before us, it appears that the matter was dismissed as of that date, triggering the thirty-day appeal period set out in Mass. R. A. P. 4 (c), as appearing in 481 Mass. 1606 (2019). Even if an order of dismissal technically did not enter, however, the March 15, 2019 order denying the plaintiff permission to file his complaint was appealable under the doctrine of present execution as of the date of its entry, thus triggering the appellate clock. See Landry v. Massachusetts Port Auth., 89 Mass. App. Ct. 307, 310 (2016).
The plaintiff failed to file notice of appeal of the RAJ's March 15, 2019 order within thirty days of that order, see Mass. R. A. P. 4 (a), as appearing in 481 Mass. 1606 (2019); instead, read generously, the docket reflects that the plaintiff requested reconsideration of the decision on April 8, 2019, and on June 17, 2019, moved to vacate the dismissal on the basis of fraud. The RAJ denied each of these requests within three days of plaintiff's filing them.
Complicating our review, the plaintiff has not included copies of either of these filings in the appendix. Assuming, arguendo, that the plaintiff's April 8, 2019 filing met the requirements of Mass. R. Civ. P. 59 (a), 365 Mass. 827 (1974), and could be considered timely, see Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), the time within which the plaintiff could have appealed the RAJ's order was tolled only until the order of denial on April 9, 2019. See Mass. R. A. P. 4 (a) (3), as appearing in 481 Mass. 1606 (2019). Even using that later date, the time for filing a notice of appeal had expired months before the plaintiff's September 24, 2019 motion to file his notice of appeal late.
The June 17, 2019 motion was not filed within ten days of the RAJ's order, and so, considered under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), it did not toll the time for filing. See Mass. R. A. P. 4 (a) (4), as appearing in 481 Mass. 1606 (2019).
On September 24, 2019, some six months after the RAJ's order, the plaintiff moved to file a late notice of appeal. A different judge denied the motion on September 25, 2019, and the plaintiff filed a notice of appeal on October 10, 2019; that notice was timely only as to the denial of the plaintiff's motion to file a late notice of appeal. See Mass. R. A. P. 4 (a). Accordingly, the propriety of the denial of the plaintiff's motion to file a late notice of appeal is the only issue properly before us. We affirm.
The plaintiff fails to make any appellate argument at all on the sole preserved issue. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief"). Further, even if the plaintiff had made appellate argument on the propriety of the denial of his motion to file a late notice of appeal, we discern no abuse of discretion in the judge's order. See Pierce v. Hansen Eng'g & Mach. Co., 95 Mass. App. Ct. 713, 716 (2019). Indeed, where the RAJ's order entered on March 15, 2019, the second judge's discretion was limited to extending the time for filing for a maximum of sixty days, or until May 16, 2019. See Mass. R. A. P. 4 (c). The plaintiff's motion for leave to file a late notice of appeal was not filed until September 2019, more than four months beyond that deadline.
In light of our conclusion, we do not reach the merits of the plaintiff's remaining arguments.
Judgment affirmed.