Opinion
No. 11–P–783.
2012-06-18
CONTINENTAL INSURANCE COMPANY v. James ELLIS, Sr.
Indeed, the judge viewed Ellis's notice of appeal from the order dismissing his appeal as “a deliberate and meritless effort to frustrate [Continental] in receiving the relief to which [it] is entitled.” 3 Nevertheless, in light of Ellis's appeal from the order dismissing his appeal, the judge vacated an order directing an execution to issue. See G.L. c. 235, § 16.
By the Court (CYPHER, GRASSO & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Attorney James Ellis, appeals from an order by a judge of the Superior Court dismissing his appeal from a judgment in favor of the plaintiff, Continental Insurance Company (Continental), in its action pursuant to G.L. c. 152, § 12, to enforce sanctions imposed against Ellis by the Department of Industrial Accidents (DIA)
in a case brought by him on behalf of an employee.
Acting pursuant to G.L. c. 152, § 14, the DIA ordered Ellis to pay penalties for pursuing a meritless claim and making misrepresentations during a workers' compensation proceeding.
We affirm the order dismissing Ellis's appeal.
This court's decision regarding the suspension of benefit payments to Ellis's client in Kendrick's Case, 76 Mass.App.Ct. 1129 (2010), has no bearing on the penalties assessed against Ellis. See id. at 1129 n. 1 (“To the extent that the employee attempts to raise ... issues concerning Attorney Ellis ... they are waived and we do not consider them”).
1. Background. Following entry of the judgment in the enforcement action, Ellis filed a timely notice of appeal, but failed to docket and prosecute his appeal timely. When Continental later moved to dismiss his appeal, Ellis moved for leave to docket his appeal late, and Continental opposed the motion. A Superior Court judge denied Ellis's motion, and dismissed his appeal, concluding that he had failed to make any excuse for his failure to docket his appeal in a timely manner, much less demonstrate excusable neglect. Continental then moved for “clarification” of the judge's order, noting that Ellis had appealed the order dismissing his appeal and that an execution had issued. The judge held an additional hearing to address Continental's concern that Ellis's appeal from the order dismissing his appeal was nothing more than an attempt to forestall issuance of an execution. After hearing, the judge concluded:
“[Ellis] offered nothing remotely resembling a credible basis for his appeal of the dismissal of his appeal. There was no suggestion of an explanation for the failure to take the steps required to prosecute the appeal from the judgment entered....”
Indeed, the judge viewed Ellis's notice of appeal from the order dismissing his appeal as “a deliberate and meritless effort to frustrate [Continental] in receiving the relief to which [it] is entitled.”
Nevertheless, in light of Ellis's appeal from the order dismissing his appeal, the judge vacated an order directing an execution to issue. See G.L. c. 235, § 16.
As discussed infra, in light of Ellis's utter failure to present a credible basis for his appeal from the dismissal of his appeal, we are inclined to agree with the judge's assessment.
2. Discussion. We discern no error in the order dismissing Ellis's appeal from the judgment enforcing the DIA's order of sanctions against him. In his primary brief, Ellis argues that this court lacks “jurisdiction to force [him] to argue issues which are not yet ripe until the ... matters before the DIA and Superior Court are fully adjudicated and disposed.” The gist of Ellis's claim is that because various other related matters are pending before the DIA and the Superior Court, this court should stay the instant appeal. Intertwined with that contention is the assertion that the Superior Court may not, as matter of law, enforce the DIA's order. These contentions miss the mark entirely.
The “merits” of Ellis's arguments regarding the judgment enforcing the DIA sanctions are not implicated in this appeal. The sole issue before us is the propriety of the order dismissing his appeal from the judgment of enforcement. Nothing in Ellis's brief speaks to the correctness of the order of dismissal or explains his failure to docket the appeal timely.
The judge did not abuse her discretion in dismissing the appeal. See McCarthy v. O'Connor, 398 Mass. 193, 196 (1986). Given that Ellis failed to offer, either below or in his brief to this court, any reasoned explanation for his admitted delay in docketing the appeal, we discern no error in the judge's conclusion that dismissal was warranted because “[t]he defendant's unexplained failure to timely docket the appeal amounted to inexcusable neglect.” See ibid.;Mass.R.App.P. 10(a)(1), as amended, 435 Mass. 1601 (2001).
We decline to address Ellis's arguments regarding the merits of the underlying judgment as no appeal from that judgment is properly before us. See Cameron v. Carelli, 39 Mass.App.Ct. 81, 85–86 (1995); Mass.R.App.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
In its brief, Continental requests its appellate attorney's fees and costs pursuant to G.L. c. 152, § 12A. We agree that fees and costs are warranted. In accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10–11 (2004), within fourteen days, Continental shall file with this court and serve on Ellis a motion for determination of its appellate attorney's fees and costs, supported by an affidavit detailing such fees and costs. Ellis may, within fourteen days thereafter, file with this court and serve on Continental any opposition.
The order dismissing Ellis's appeal is affirmed, and the matter is remanded to the Superior Court for entry of an order directing issuance of an execution.
So ordered.