Opinion
18-P-1659
10-21-2019
CLIFFSIDE REALTY ASSOCIATES LLP v. Kelechi LINARDON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant (tenant) appeals from the denial of her motion, pursuant to Dist./Mun. Cts. R. A. D. A. 2, to extend the time to file her notice of appeal. We affirm.
The plaintiff (landlord) commenced this summary process action against the tenant in April 2015. After extensive motion and discovery proceedings, the matter was scheduled for trial on November 12, 2015, but the tenant failed to appear. A default entered on November 13, 2015, and a final judgment entered on November 24, 2015. The tenant filed a motion to remove the default and to vacate the default judgment on December 2, 2015. She also filed a notice of appeal on the same day. The tenant's motion to vacate was denied on December 10, 2015, and she filed a notice of appeal of the order denying her motion on December 15, 2015.
At the time of trial, the tenant was represented by counsel.
The tenant's counterclaims had been dismissed earlier in the action due to the tenant's discovery misconduct. A "judgment" entered on the docket as to the counterclaims and the tenant filed a timely notice of appeal. However, the "judgment" was not a final judgment as no finding under Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974), was made and the landlord's claims remained outstanding.
The notice of appeal was mistakenly filed directly with this court, but was forwarded to the District Court pursuant to Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013).
That notice of appeal did not purport to appeal from the underlying judgment, but nothing turns on this given the later dismissal of the appeal on other procedural grounds.
A judge allowed the landlord's unopposed motion to dismiss the tenant's appeal on December 10, 2015. The tenant sought additional time to comply with the appeal procedure of Dist./Mun. Cts. R. A. D. A. 8C. The tenant's motion for additional time was denied, and the landlord's unopposed cross motion to dismiss was allowed on January 29, 2016. Judgment dismissing the appeal entered on the same day. On February 23, 2016, the tenant again mistakenly filed a notice of appeal directly with this court (see note 3, supra ), which was again transferred to the District Court pursuant to Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013). The District Court, inexplicably, then assembled the record to this court, resulting in the entry of Cliffside Realty Trust vs. Linardon, Appeals Court, No. 16-P-503 (March 1, 2017), which was dismissed on procedural grounds. Our decision noted, by way of dictum, that the February 23, 2016 notice of appeal was untimely as it exceeded the ten-day appeal period applicable to summary process actions. The tenant's application for further appellate review was denied.
Nearly one year later, the tenant filed a motion to enlarge the time to file her notice of appeal in the Appellate Division of the District Court. The Appellate Division denied the motion on the ground that the tenant's submission failed to establish good cause. The tenant has now appealed that final decision of the Appellate Division to this court. We review the Appellate Division's decision for abuse of discretion. See Stephens v. Global NAPs, 70 Mass. App. Ct. 676, 682 (2007) (review of trial judge's denial of motion to file late notice of appeal is for abuse of discretion).
On appeal, the tenant argues, as she did to the Appellate Division, that "various clerks of the Massachusetts Appeals Court" did not "indicate to appellant the necessary procedure for filing appeals regarding summary process with the Appellate Division," leaving her "under the impression that her filing with the Appeals Court was the proper direction for her case." This argument is of no consequence because, pursuant to Mass. R. A. P. 4 (a), the notice of appeal mistakenly filed in this court is deemed filed the day it is received by this court. In other words, her notice was not rendered untimely by the mistaken filing in this court, but rather was untimely because it was filed more than ten days after the order entered in the trial court. To the extent her brief could be read to argue that she was misled, or not affirmatively informed, of the ten-day deadline for filing a notice of appeal in a summary process action, the Appellate Division was warranted in concluding that her reliance on incorrect legal advice does not constitute excusable neglect. See Jones v. Manns, 33 Mass. App. Ct. 485, 492 (1992). We note further that the tenant's motion was not accompanied by any affidavits.
The tenant also argues that her procedural failures should be excused because she is pro se. However, the Appellate Division did not abuse its discretion in holding the tenant to the procedural rules. "[T]he rules bind a pro se litigant as they bind other litigants." Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985).
Finally, the tenant argues that her "difficult personal circumstances due to her handicap status," support her claim of good cause for missing the filing deadline. Here, likewise, we discern no abuse of discretion by the Appellate Division in rejecting this argument on the ground that the motion, which was not accompanied by an affidavit, failed to establish the existence of any disability that would merit a good cause finding.
The tenant failed to include a copy of the motion in her appendix.
For these reasons, the tenant has failed to show that the Appellate Division, in the circumstances of this case, "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 landlord's request for an award of attorney's fees is denied.
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Decision and order of Appellate Division affirmed.