DANIEL E. SULLIVAN, THIRD v. CAITLIN FLAHERTY & Others.

• Court: Massachusetts Appeals Court
• Decided: November 8, 2023
• Docket: 22-P-0823
• Status: Unpublished

Opinion

NOTICE: 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-823

DANIEL E. SULLIVAN, THIRD

vs.

CAITLIN FLAHERTY 1 & others. 2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2015, a Superior Court judge allowed the defendant

Caitlin Flaherty's motion to dismiss and ordered the plaintiff

to pay the defendant's attorney's fees; a separate and final

judgment entered to that effect. The plaintiff did not appeal

from that judgment. In 2021, with no payment made by the

plaintiff, a Superior Court judge issued a judgment in aid of

execution in the amount owed, and in 2022 a different Superior

Court judge entered an order permitting the defendant leave to

file for additional attorney's fees. The defendant appealed

from the judgment and order, and the records were assembled by

the trial court. After the deadline for docketing the appeals

1 Caitlin Flaherty, aka Caitlin F. Wonson, Caitlin E. Wonson. 2 Kevin Morris, Kimberly Jones, Todd Goodwin, Timothy Cleary, Brian Gentry, Paul Catanoso, and Michael Mackinnon. lapsed, the plaintiff filed a motion with a single justice of

this court seeking leave to late docket the appeals. The single

justice denied relief ruling that the plaintiff failed to

establish excusable neglect and denied a motion for

reconsideration. This appeal followed. We affirm the order of

the single justice.

1. Background. We summarize the relevant procedural

background. In 2014, the plaintiff, Daniel E. Sullivan, Third,

filed an action against the defendant, Caitlin Flaherty and

several others, alleging various civil rights violations. In

2015, Flaherty's motion to dismiss was allowed, and the

plaintiff was ordered to pay Flaherty's attorney's fees. In

2021, a Superior Court judge issued a judgment in aid of

execution of the order. A different Superior Court judge,

finding that the plaintiff had committed a fraud upon the court,

entered a subsequent order allowing Flaherty leave to file for

additional attorney's fees. The plaintiff noticed a timely

appeal from both of these orders. However, the plaintiff failed

to timely docket either appeal under Mass. R. A. P. Rule 10 (a)

(1), as appearing in 481 Mass. 1618 (2019), which requires an

appellant to enter a case within fourteen days of receipt of the

notice of the assembly of the record. 3

3 Rule 10 (a) (1) states that "[w]ithin 14 days after receiving from the clerk of the lower court the notice of assembly of the

2 After the deadline for docketing the appeals expired under

rule 10 (a) (1), the plaintiff filed a motion in the single

justice session of this court requesting that he be allowed to

docket the appeals late. 4 He argued that his failure to timely

docket the appeals should be considered excusable neglect

because he was busy preparing for anticipated depositions and

because he was focusing on filing a motion to consolidate the

two appeals. On August 3, 2022, the single justice denied

relief, concluding that the plaintiff failed to establish that

his failure to docket the appeals timely was due to excusable

neglect. A motion to reconsider was also denied. The plaintiff

filed a notice of appeal from the single justice order denying

his motion to docket the appeals late. 5

2. Discussion. We review the single justice's decision

"for errors of law, and if none appear, for abuse of

discretion." Troy Indus., Inc. v. Samson Mfg. Corp., 76 Mass.

record, each appellant, including each cross-appellant and each appellant in a joint appeal, shall pay to the clerk of the appellate court the docket fee required by law or request waiver of the fee, and the clerk shall thereupon enter the appeal of such appellant or cross-appellant upon the docket. If an appellant is authorized to prosecute the appeal without payment of fees, the clerk shall enter the appeal upon the docket at the written request of a party." 4 It is undisputed that the plaintiff missed the deadlines to

docket his appeals. 5 Along with the motion for reconsideration, the plaintiff filed

a motion "to empanel a three-judge panel." This motion was treated as a notice of appeal of the August 3, 2022, order by the single justice.

3 App. Ct. 575, 581 (2010). "[T]he burden of showing an abuse of

discretion is a difficult one to carry." Id.

On appeal, the plaintiff offers several additional reasons

why the motion to late docket the appeals should have been

allowed including a claim that the clerk's office failed to

properly provide notice and that his appeal was meritorious. To

be clear, the only matter properly before the court is the

single justice decision entered on August 3, 2022, in which the

single justice, finding that the plaintiff failed to establish

excusable neglect, denied the motion to late docket the appeals.

In cases in which an appellant fails to docket a civil appeal in

a timely manner, pursuant to rule 10 (a) (1), as a threshold

matter, the appellant must demonstrate that the delay was caused

by excusable neglect. See Howard v. Boston Water & Sewer

Comm'n, 96 Mass. App. Ct. 119, 122 (2019). "Excusable neglect"

has been defined to encompass "circumstances that are unique or

extraordinary, not [] any 'garden-variety oversight.'" Id. at

123; quoting Sheav v. Alvord, 66 Mass. App. Ct. 910, 911 (2006).

We see no error of law or abuse of discretion in the single

justice's denial of the motion to late docket the appeals. The

plaintiff argues that he committed excusable neglect because he

"admittedly was overwhelmed and inundated by the vast

coordinated flow [of] paperwork of opposing counsels that

required his timely reply." We cannot say that it was an abuse

4 of discretion for the single justice to find that preparing for

anticipated depositions, handling legal paperwork, and

consolidating two appeals does not amount to excusable neglect. 6

While we are mindful of the fact that the plaintiff has filed

these motions pro se, his failure to timely docket the appeals

cannot be overlooked. See Brown v. Chicopee Fire Fighters

Ass'n, Local 1710, IAFF, 408 Mass. 1003, 1004 n.4 (1990)

("Although some leniency is appropriate in determining whether

pro se litigants have complied with the rules of procedure, the

rules nevertheless bind pro se litigants as all other

litigants").

Order of the single justice entered August 3, 2022, affirmed.

By the Court (Rubin, Neyman & Walsh, JJ. 7),

Clerk

Entered: November 8, 2023.

6 We note that, although it is not before us, the plaintiff's motion for reconsideration does not offer any additional insight into his failure to timely docket the appeals and its denial was not an abuse of discretion. 7 The panelists are listed in order of seniority.