Opinion
21-P-614
10-31-2022
WESTLAND AVENUE APARTMENTS, LP v. PAUL MWAKE.
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
The defendant, Paul Mwake, has appealed, pursuant to Mass. R. A. P. 15 (c), as appearing in 481 Mass. 1627 (2019), from an order entered by a single justice of this court in his pending appeal from a summary process judgment entered by the Housing Court. See Westland Ave. Apartments, LP vs. Mwake, Mass.App. Ct., No. 21-P-451 (June 1, 2021) (Mwake III). The defendant's merits-based appeal from the underlying judgment is pending in this court and is stayed pending the resolution of this appeal.
After the Housing Court issued notice, pursuant to Mass. R. A. P. 9 (e) (1), as appearing in 481 Mass. 1615 (2019), that it had assembled the record on the defendant's appeal from the judgment, the defendant filed a motion in the Appeals Court seeking, inter alia, that the Housing Court be ordered to recall the notices of assembly. In determining the motion, on June 1, 2021, a single justice ordered the appeal from the judgment entered on the docket pursuant to Mass. R. A. P. 10 (a), as appearing in 481 Mass. 1615 (2019), and waived the entry fee based on prior findings that the defendant was indigent. In her order, the single justice further addressed the defendant's requests for relief.
Specifically, among other rulings the single justice denied the defendant's requests (1) to vacate the notice of assembly, (2) to further correct the Appeals Court record in Westland Ave. Apartments, LP vs. Mwake, Mass.App. Ct., No. 20-P-796 (Oct. 29, 2020) (Mwake II), (3) to file a late notice of appeal from various Housing Court orders, (4) to file a late notice of appeal from a single justice's order denying his motion to reinstate his appeal in Mwake II, (5) to order that certain assistant clerks in the Appeals Court not "handle" the defendant's filings, and (6) to waive the costs of an audio recording of the September 26, 2019 hearing before a single justice of this court in Westland Ave. Apartments, LP vs. Mwake, Mass.App. Ct., No. 19-J-446 (Sept. 27, 2019) (Mwake I). The defendant appealed from the single justice's Mwake III June 1, 2021 order in its entirety. We ordered the parties to submit memorandum, pursuant to Rule 15.0 (b) (2) (A) of the Rules of the Appeals Court, as appearing in 97 Mass.App.Ct. 1010 (2020). We further ordered that if no memorandum were filed, this appeal would be decided on the record before the single justice. Neither party filed a memorandum, and we now review the order of the single justice. Seeing no abuse of discretion or other error of law in the single justice's order, we affirm.
In Mwake II the defendant appealed from an order by a single justice striking his notice of appeal from an order by a different single justice regarding the defendant's appeal bond. The defendant's appeal was dismissed for failure to prosecute, and the defendant's motion to reinstate the appeal was denied by a third single justice.
In the ordinary course, where the appellant fails to file a brief or memorandum, the appellant would receive a notice of intent to dismiss the appeal and, if no filings were made, the appeal would be dismissed. See Rule 19.0 of the Rules of the Appeals Court, as appearing in 97 Mass.App.Ct. 1011 (2020). In light of the dismissal of the defendant's prior appeal from a single justice's order for failure to prosecute and to facilitate the defendant's ability to prosecute his appeal from the judgment, we exercised our discretion to grant review of the single justice's order notwithstanding the defendant's failure to file the required memorandum.
The scope of this appeal is limited to the propriety of the single justice's June 1, 2021 order in Mwake III, No. 21-P-451; we do not address the merits of the defendant's other appeals, including his appeal from the judgment.
Discussion.
"At the outset, it is important to keep in mind that we review the action of the single justice for errors of law and, if none appear, for abuse of discretion." Troy Indus., Inc. v. Samson Mfg. Corp., 76 Mass.App.Ct. 575, 581 (2010). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude 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 and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). "Rarely . . . can it be said that a single justice is in error in denying relief." Mezoff v. Cudnohufsky, 5 Mass.App.Ct. 874, 874 (1977).
1. Notice of assembly.
The defendant's first request was to order the Housing Court to recall the notices of assembly. The single justice denied his request. While acknowledging that "this appeal has already been delayed far longer than is anticipated in a summary process proceeding," she declined to further delay the resolution of the appeal. She reasoned that the defendant had not shown how the additional transcripts he sought were relevant to his appeal from the judgment and he had not shown how he was prejudiced by the Housing Court's supposed failure to notify him about the transcripts that had been filed. Given the defendant's failure to demonstrate how he had been prejudiced by the notices of assembly, we cannot say that the single justice "made a clear error of judgment" in denying his request "such that the decision falls outside the range of reasonable alternatives." L.L., 470 Mass. at 185 n.27 (quotation omitted).
2. Request to correct record.
The defendant sought correction of the docket in 20-P-796 after two of his motions were scanned together, listed as a single docket entry, and were added to the court's document management system as a single portable document format (PDF) file. The single justice denied his request, noting in her decision that when it was subsequently learned that the single PDF file contained two motions, a docket entry was made: "The entry of #17 is revised to show that on 10/14/20, two motions were filed as follows: Motion G2 to enjoin to RE#16 &Strike Plaintiff's Motion to Dismiss (#17) and Motion G1 to enjoin to RE#16 &Strike Clerk's Dismissal Notice (#17.1)." The defendant failed to show that any further correction is needed. Therefore, the single justice did not err in denying his request.
3. File late notice of appeal.
The defendant requested leave to appeal from certain postjudgment orders issued by the Housing Court judge in March 2021. The single justice correctly concluded that to the extent that the defendant required leave to appeal from otherwise unappealable orders, his request was untimely as it was not filed within thirty days of entry of the trial court orders. See G. L. c. 231, § 118, first par. The single justice also concluded that, to the extent that the defendant was seeking leave to file a late notice of appeal from orders that he could have appealed by right, he failed to show good cause for an enlargement of time to file a late notice of appeal. We cannot say that the single justice erred in denying the defendant's motion. As his motion was denied without prejudice, he was free to renew his motion with a showing of good cause, i.e., excusable neglect and a meritorious appellate issue as to those orders. See Pierce v. Hansen Eng'g &Mach. Co., 95 Mass.App.Ct. 713, 715 (2019); Tisei v. Building Inspector of Marlborough, 3 Mass.App.Ct. 377, 379 (1975).
4. Motion to reinstate
Mwake II, No. 20-P-796. The defendant sought to reinstate his appeal in Mwake II. His motion seeking reinstatement was denied by a single justice in that appeal, pursuant to Rule 19.0 (d) (2) of the Rules of the Appeals Court, as appearing in 97 Mass.App.Ct. 1011 (2020). The defendant moved to have his motion to reinstate reviewed by a panel, but the single justice correctly concluded that he failed to follow proper procedure, i.e., he did not appeal directly from the single justice's order pursuant to Mass. R. A. P. 15 (c) and Rule 15.0 of the Rules of the Appeals Court. As with the Housing Court orders, he also failed to show good cause to warrant leave to file a late notice of appeal. He was free to renew his motion to seek leave to file a late notice of appeal of the single justice's decision denying his motion to reinstate if it was accompanied by a showing of good cause, i.e., excusable neglect and a meritorious appellate issue as to those orders. See Pierce, 95 Mass.App.Ct. at 715; Tisei, 3 Mass.App.Ct. at 379.
5. Certain assistant clerks' involvement.
The defendant requested an order preventing three of the court's five assistant clerks from "handling" papers he filed. The single justice concluded that the majority of the defendant's claims regarding the assistant clerks were without factual basis and constituted conclusory statements that did not rise to sufficient allegations to consider issuing the requested order. As far as the claims regarding one specifically identified Assistant Clerk, the single justice concluded that the claims were unsupported by the facts alleged by the defendant. Despite this, the single justice still requested that that Assistant Clerk provide more specific explanations to the defendant and to other litigants in the future. Nothing in the record indicates that the single justice made a clear error in judgment in denying the defendant's request for this order.
6. Audio compact disk cost waiver.
The defendant requested a waiver of the cost of the audio recording of the September 26, 2019 hearing before a single justice in Mwake I, No. 19-J-446. The single justice concluded, quoting G. L. c. 261, § 27C, that the record did not show that an audio recording of the hearing was "reasonably necessary to assure [the defendant] as effective . . . [an] appeal as he would have if he were financially able to pay" and thus denied his request without prejudice. The defendant was free to renew his request in conformity with the procedures set forth in G. L. c. 261, § 27B, by "fil[ing] one or more supplementary affidavits requesting the waiver, substitution or payment by the commonwealth of fees and costs not previously granted." The single justice did not err in requiring the defendant to conform to these procedures.
Conclusion.
The single justice's June 1, 2021 order shows thoughtful, measured consideration of each of the defendant's requests and was neither an error of law nor an abuse of her discretion. The June 1, 2021 order of the single justice is affirmed.
So ordered.
The panelists are listed in order of seniority.