Home MARK BAUERSACHS and another [Note 1] v. ALAN AARON, ESQ. and another [Note 2]

2020 Mass. App. Div. 69

September 20, 2019 - May 1, 2020

Appellate Division Northern District

Court Below: District Court, Marlborough Division

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

Mark Bauersachs, pro se.

Alan H. Aaron and Kenneth D. Quat for the defendants.

NESTOR, J. The plaintiffs have appealed from the trial court's denial of their motion for an extension to file a notice of appeal and from the court's dismissal of their appeal. We affirm.

The plaintiffs, Mark and Marcieli Bauersachs ("Bauersachs"), filed a complaint against the defendants, Alan Aaron ("Aaron") and Rachel Minutolo ("Minutolo"), in the District Court. The complaint alleged malicious prosecution and civil conspiracy arising from Aaron's role as landlord's attorney in a Housing Court summary process case against the Bauersachs and from Minutolo's role as constable in serving process on the Bauersachs in that matter. The defendants each moved to dismiss the complaint in the District Court, Aaron under Mass. R. Civ. P. 12(b)(6) and Rule 12(b)(9) and Minutolo under Rule 12(b)(6). After a hearing, the District Court allowed the motions to dismiss with a margin endorsement: "Dismissed as to all counts for either issue preclusion, failure to state a claim, or both." According to the docket, the court's ruling on the motion was entered on June 26, 2018 and notice issued to the parties that day. Judgment also entered on June 26, 2018, but there is no docket entry that notice was sent. The Bauersachs filed a notice of appeal on July 13, 2018, seventeen days after the entry of judgment. The defendants moved to dismiss the appeal, and the Bauersachs moved for an extension of time under Dist./Mun. Cts. R. A. D. A. 4(c). After a hearing, the court denied the motion for an extension and dismissed the appeal. This appeal by the Bauersachs followed.

The Appellate Division reviews the trial court's decision to dismiss the plaintiffs' appeal for an untimely notice of appeal for abuse of discretion. Lawrence Sav. Bank v. Garabedien, 49 Mass. App. Ct. 157, 161 (2000); Massachusetts Higher Educ. Assistance Corp. v. Dowd, 2002 Mass. App. Div. 161, 162. This review must give "great deference to the judge's exercise of discretion," and "it is plainly not an abuse of discretion simply because a reviewing court would have reached a different result." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Rather, a court's discretionary decision constitutes an abuse of discretion where we conclude the court made "'a clear error of judgment in weighing' the factors relevant to the decision, see Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008) (citation omitted), such that the decision falls outside the range of reasonable alternatives." Id.

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Three issues are presented by a motion to dismiss an appeal for procedural noncompliance: whether the appellant has, in fact, violated a procedural requirement, whether the violation constitutes a "serious misstep" warranting appeal dismissal, and whether the appellant has advanced excusable neglect or good cause for any extension of time that may be needed to correct the violation. Smith v. Wright, 2011 Mass. App. Div. 155, 156, citing Islamov v. Tiomkin, 2011 Mass. App. Div. 13, 15. The answers to the first two questions are straightforward in this case. The notice of appeal to the Appellate Division must be filed with the clerk of the trial court within ten days after the entry of judgment. Dist./Mun. Cts. R. A. D. A. 4(a). Judgment entered on June 26, 2018, and the plaintiffs filed their notice of appeal seventeen days later on July 13, 2018. Their late filing was a serious misstep warranting dismissal of the appeal. City of Revere v. Gray, 2011 Mass. App. Div. 48, 50; Samia v. D'Annunzio, 2001 Mass. App. Div. 31, 32, citing Plavin v. Lutts, 2000 Mass. App. Div. 58, 59, and Miller v. Scannell, 1997 Mass. App. Div. 166, 167.

The dispositive question on this appeal, then, is whether the court abused its discretion in denying the plaintiffs' motion to correct their procedural mistake. The plaintiffs here moved under Dist./Mun. Cts. R. A. D. A. 4(c), which permits the trial court to grant an extension of the time for filing the notice of appeal not to exceed ten days from the expiration of the time otherwise prescribed by Rule 4(a), but only upon a showing of "excusable neglect or other good reason." [Note 3] Excusable neglect calls for unique or extraordinary circumstances. Miller v. Scannell, 1997 Mass. App. Div. 166, 168, citing Mailer v. Mailer, 387 Mass. 401, 406 (1982). It does not embrace a "flat mistake" by the appellant about the meaning of a statute or rule or "other garden-variety oversight[s]." Lamelsky v. Butler, 2001 Mass. App. Div. 116, 118, quoting Goldstein v. Barron, 382 Mass. 181, 186 (1980). Nor does it cover "the usual excuse that the lawyer is too busy, which can be used, perhaps truthfully, in almost every case." Nieves v. Marraquin, 2009 Mass. App. Div. 291, 294, quoting Feltch v. General Rental Co., 383 Mass. 603, 614 (1981). The concept of excusable neglect is intended "to take care of emergency situations only." Godfrey v. Woburn Foreign Motors, 2001 Mass. App. Div. 81, 83, quoting Lawrence Sav. Bank, supra at 161.

Routine extensions of time are not permitted. Mystic Landing LLC v. OMLC, LLC, 2010 Mass. App. Div. 150, 152. "Where the record does not show facts sufficient to warrant a finding of excusable neglect, there is no room within which judicial discretion can operate. Discretion is not granted to the judge to allow late filing of a notice of appeal simply because the matter is important to the parties, the issues to be raised in the appeal are debatable, or the consequences to the losing party are harsh. Rather, such discretion must focus on the nature of the acts or failures to act that are offered up as excusable neglect" (citation omitted). Shaev v. Alvord, 66 Mass. App. Ct. 910, 911-912 (2006).

In this case, the court in its finding considered the factors relevant to the decision

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under Dist./Mun. Cts. R. A. D. A. 4(c), [Note 4] and we see no clear error in the court's judgment in weighing the factors. First, the plaintiffs argued in their motion for an extension that, as self-represented litigants with experience only in appealing from Housing Court to the Appeals Court, they were unfamiliar with the 10-day filing period for a notice of appeal from District Court to the Appellate Division. As previously stated, however, an appellant's flat mistake about a rule of court does not establish excusable neglect. Further, procedural rules bind pro se litigants as they bind other litigants. Reznik v. Urzia, 2016 Mass. App. Div. 110, 111, citing Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985).

Second, the plaintiffs argued at the motion hearing, and before this Appellate Division on appeal, that the trial court delayed mailing the notice of judgment entry to the parties, which excused the plaintiffs from the 10-day window for filing the notice of appeal. While judgment entered on June 26, 2018 and the notice of judgment entry is dated June 26, 2018, there is no docket entry reflecting when the court sent the notice of judgment entry to the parties under Mass. R. Civ. P. 77. Plaintiff Mark Bauersachs at the motion hearing submitted to the court the envelope in which he received the notice, which bears a postmark of June 28, 2018. Mark Bauersachs stated at the hearing that he received the notice on July 2, 2018 (Monday). [Note 5] He added that he worked on July 3; he had a pre-planned family vacation from July 4 to July 8; he worked on July 9 (Monday); he reviewed the court's decision and underlying motions on July 10 and wrote the appeal; and he filed the notice of appeal in hand on July 13 (Friday). He stated the court's decision was confusing and lacked clarity and that he had no time to review the decision and underlying motions before vacation. [Note 6]

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Regarding a delay in notice of judgment entry, the Appeals Court case of Troy Indus., Inc. v. Sampson Mfg. Corp., 76 Mass. App. Ct. 575 (2010) is instructive. In that case, the Court stated:

"We have said in a number of civil cases that 'an attorney's oversight does not afford his or her client a remedy under rule 4(c) or rule 14(b),' [Commonwealth v.] Trussell, [ 68 Mass. App. Ct. 452,] 455 [(2007)], and lack of notice of entry of a judgment does not, of its own force, extend the time for filing a notice of appeal. See Mass. R. Civ. P. 77(d). Failure to learn of the date judgment entered is often the kind of oversight for which neither rule provides a remedy. See, e.g., Locke v. Slater, 387 Mass. 682, 685­686 (1982); BJ's Wholesale Club, Inc. v. City Council of Fitchburg, 52 Mass. App. Ct. 585, 588 (2001). Oversight, however, differs from patience with the court, and lack of notice is 'relevant in the determination of whether to extend the time to file the notice of appeal under either [rule] 4(c) or [rule] 14(b).' Commonwealth v. Guaba, 417 Mass. 746, 752 (1994). See Reporters's Notes to Mass. R. Civ. P. 77(d), 46 Mass. Gen. Laws Ann., Rules of Civil Procedure, at 1089 (West 2006) ('Although under Rule 77[d] lack of notice does not authorize the court to relieve a party for failure to appeal within the time allowed, [Mass. R. A. P.] 4 provides that upon a showing of excusable neglect the court may extend the time for appeal. A failure to learn of the entry of judgment could, in appropriate circumstances, so qualify.')."

Id. at 582-583.

Even assuming the plaintiff is correct that the trial court delayed sending notice of judgment entry to the parties, we cannot say that the trial court abused its discretion in concluding that the plaintiffs failed in their burden of showing excusable neglect or other good reason for their late appeal. Whether counting from the postmark on the envelope to the plaintiffs, June 28, 2018, or whether counting from the date the plaintiffs conceded they received the notice of judgment entry, July 2, 2018, the plaintiffs still failed to file the notice of appeal within ten days. The reasons offered by the plaintiffs were that they had a family vacation from July 4 to July 8; the plaintiffs thought the court's decision on the motion to dismiss the complaint was confusing and wished to review the underlying material before deciding whether to file a notice of appeal; plaintiffs started that review upon their return from vacation on July 10, and plaintiff Mark Bauersachs was otherwise working. There are no Massachusetts cases, and the plaintiffs have pointed to none, that support the proposition that a family vacation falls within the meaning of excusable neglect. No reason was offered by the plaintiffs on why they could not have submitted a notice of appeal --or, at the least, have reviewed the court's decision -- during vacation. Finally, as the trial

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court found, the plaintiffs offered no reason why they filed the notice of appeal five days after returning from vacation. Rather than presenting an emergency situation, the plaintiffs' excuse is more akin to being "too busy," Nieves, supra, which is not excusable neglect.

Finally, there is no merit to the plaintiffs' remaining argument that they are entitled to an extension of time because they have meritorious issues for appeal. While the relative merits of the appeal and a lack of prejudice to the appellees are factors to be considered, Maciuca v. Papit, 31 Mass. App. Ct. 540, 546 (1991), the court's discretion in deciding a motion to extend time for filing a notice of appeal is "cabined by the principle of excusable neglect." Shaev, supra at 911. Absent excusable neglect or other good reason, there was no abuse of discretion by the trial court to deny the plaintiffs' request to extend the time in which to file a notice of appeal.

The trial court's orders denying the plaintiffs' motion for an extension of time and dismissing the plaintiffs' appeal are affirmed.


[Note 1] Marcieli Bauersachs.

[Note 2] Rachel Minutolo, Constable.

[Note 3] The plaintiffs could have moved for an extension under Rule 14(b), which is the general rule for enlargements of time and is not limited to seeking an extension for filing a notice of appeal within twenty days of judgment entry. Oyegbola v. DeSimone, 1995 Mass. App. Div. 91, 95. Rule 14(b) requires a showing of "good cause," however, which has been held tantamount to "excusable neglect" under Rule 4(c). Paquette v. Premier Ins. Co., 2000 Mass. App. Div. 250, 251.

[Note 4] The trial court wrote: "After hearing and review of all pleadings, the Plaintiff's Motion to extend filing of Notice of Appeal DENIED, the Plaintiff having shown no good cause or excusable neglect. The Plaintiff filed no supporting Affidavit. The Plaintiff admitted he received Notice of Dismissal before he left for claimed vacation on 7/3/18 and offered no reason as to why the Notice of Appeal was filed 7/13/18 although he returned from vacation on 7/8/18. Also,the Plaintiff appears from the pleadings to be a knowledgeable 'pro se' litigant."

[Note 5] As the trial court noted in its ruling on the motion for extension, the plaintiffs did not file an affidavit in support of the motion. See Dist./Mun. Cts. Supp. R. Civ. P. 105 ("The court need not hear any motion, or opposition thereto, grounded on facts, unless the facts are verified by affidavit, or are apparent upon the record and files, or are agreed to and stated in writing signed by the attorneys for the parties interested."). Nor were the parties sworn before speaking at the motion hearing at the direction of the court. The court nevertheless stated at the end of the hearing that he accepted the plaintiff's representation that he received notice of judgment entry before he left for vacation,he returned from vacation on July 8 (Sunday), and then filed the notice of appeal on July 13 (Friday). Even assuming the plaintiffs' other factual assertions were sworn, they still do not establish excusable neglect.

[Note 6] The court dismissed the plaintiffs' complaint under Mass. R. Civ. P. 12 with a margin endorsement. "Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule[] 12 . . . ." Mass. R. Civ. P. 52(c). Although Dist./Mun. Cts. R. A. D. A. 4(a) imposes a brief time period in which to file a notice of appeal, and we appreciate that the plaintiffs preferred to review the court's decision and underlying motions before deciding to appeal, the notice of appeal to the Appellate Division has been described as just a "foot in the door" giving appellant sufficient time to select and pursue one of three methods of appeal and, as such, an "insignificant challenge." Lamelsky, supra at 118.