Home FANNIE MAE [Note 1] v. JOHN HIGGINS, JR.

2017 Mass. App. Div. 169

April 28, 2017 - October 30, 2017

Appellate Division Northern District

Court Below: District Court, Somerville Division

Present: Coven, P.J., Nestor & Flynn, JJ.

No brief filed for the plaintiff.

John T. Higgins, pro se.


FLYNN, J. This case arises out of an appeal from the denial of a motion by the defendant, John Higgins, Jr. ("Higgins"), to file an appeal late. The request for the late filing of an appeal was outside of the 180-day time limit permitted by Dist./Mun. Cts. R. A. D. A. 14(b) and therefore properly denied.

A review of the docket sheet reveals that Higgins was initially defaulted for failing to appear on a summary process trial date. Judgment for the plaintiff, Federal National Mortgage Association, for possession entered on July 29, 2015. On August 5, 2015, Higgins filed a motion for relief from judgment pursuant to Mass. R. Civ. P. 60(b). That motion asserted that he failed to appear on the original trial date due to his ongoing cancer treatment. Higgins again failed to appear at the scheduled hearing on August 13, 2015, and his motion was denied on that date.

Some seven months later, on March 31, 2016, Higgins filed a motion for reconsideration, which was treated as a motion for relief from judgment pursuant to Mass. R. Civ. P. 60(b). At that hearing, Higgins again asserted, inter alia, that he failed to appear previously due to his ongoing cancer treatment. That motion was denied on April 7, 2016. Six days later, on April 13, 2016, Higgins filed a motion to file an appeal late. Attached to that motion was a finding and order in another summary process case between the same parties, Fannie Mae v. Catherine Higgins and John Higgins, Somerville Div. No. 1410SU0386, wherein that prior complaint between that same parties was dismissed in favor of the defendants. In attaching the prior decision in his favor, Higgins was arguably again presenting the merits of his defense to the current case in seeking to appeal late.

While it is unclear from which particular order the defendant seeks to appeal late, the only orders on the docket that would be subject matter of a late appeal would be the original judgment dated July 29, 2015 or the denial of the motion for relief from judgment dated August 13, 2015. [Note 2]

Page 170

A notice of appeal must be filed within ten days after the date of the entry of the judgment or post judgment order being appealed. Dist./Mun. Cts. R. A. D. A. 4(a). An appellant may move for an extension to file the notice of appeal late under Rule 14(b), which motion is addressed to the court's discretion. Rocha v. Hanover Ins. Co., 2008 Mass. App. Div. 10 , 11 ("A 14(b) motion is addressed . . . to the broad discretion of the motion judge . . . ."). A trial judge cannot extend the time for filing the notice of appeal beyond 180 days from the date of the order being appeal. See Rule 14(b) ("The trial court . . . for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but the time for filing a notice of appeal may not be enlarged beyond 180 days from the date of entry of the judgment or order sought to be reviewed."). See Citibank (S.D.), N.A. v. Surabian, 2013 Mass. App. Div. 45 , 47 ("As [appellant's] October 26, 2011 notice of appeal was filed more than 180 days after both summary judgment and the denial of his motion for reconsideration in this case, neither the trial court, nor this Division, was empowered to extend the time to permit the late filing of that notice.").

In this action, the 180-day date from July 29, 2015 would have been January 25, 2016, and the 180-day date from August 13, 2015 would have been February 9, 2016.

Accordingly, the motion to file an appeal late was properly denied, and this appeal is dismissed.


FOOTNOTES

[Note 1] Also known as Federal National Mortgage Association.

[Note 2] Even if we were to consider the April 13, 2016 request for a late appeal to be a timely request to appeal the April 7, 2016 denial of reconsideration, the result would be the same. The court treated that motion for reconsideration as a motion for relief from judgment pursuant to Mass. R. Civ. P. 60(b)(1) and denied it. That would have been Higgins's second motion for relief from judgment, setting forth the same grounds initially presented for failure to appear, to wit, illness, which was denied, also for failure to appear. There would have been no abuse of discretion in denying this repeated request with no new grounds. See Floyd v. Owens, 2009 Mass. App. Div. 219 , 222-223.