Newrez LLC v. Frederick J. Nuzzo.

• Court: Massachusetts Appeals Court
• Decided: October 4, 2023
• Docket: 23-P-0276
• Status: Unpublished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

23-P-276

NEWREZ LLC 1

vs.

FREDERICK J. NUZZO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from two orders entered by a single

justice of this court. One order vacated the entry of an appeal

and the other order denied a motion for reconsideration of that

decision. We affirm.

The underlying case involved a complaint for declaratory

relief wherein judgment entered for the plaintiff. The

defendant filed a notice of appeal, and a notice of assembly of

the record was issued on November 14, 2022. 2 The defendant did

not enter the appeal by paying the docketing fee or request

waiver of the docketing fee until December 9, 2022, which

1 Formerly known as New Penn Financial doing business as Shellpoint Mortgage Servicing. 2 The defendant's reply brief erroneously asserts that the notice

of assembly was issued on December 12, 2022. That was the date on which the Clerk of this court sent a notice of entry of the appeal. exceeded the fourteen days provided by Mass. R. A. P. 10 (a)

(1), as appearing in 481 Mass. 1618 (2019). His request to

waive the entry fee was conditionally allowed subject to review

by the single justice, and the appeal was docketed, but

thereafter, the defendant was ordered to show cause why the

docketing was timely. On January 9, 2023, the defendant filed a

motion to enlarge the time to docket the appeal, see Mass. R. A.

P. 10 (a) (3). The motion was denied by the single justice

without prejudice to renewal "accompanied by a showing of a

meritorious issue on appeal." The defendant then filed a

pleading that he styled as "Response to Show Cause Order." 3 The

single justice denied that pleading as well, concluding that the

defendant did not establish a meritorious issue on appeal.

Accordingly, she vacated the entry of the appeal. The defendant

filed a "response," which the single justice construed as a

motion to reconsider, and after reconsideration, she denied the

motion. This appeal followed. 4

As is the case here, when an appellant fails to enter a

civil appeal in a timely manner and seeks enlargement of the

3 The response included the defendant's self-report of health issues with attached Internet articles, but it did not contain any reference to what he claimed was a meritorious appellate issue. 4 The defendant filed a brief, reply brief and record appendix

which primarily address his arguments concerning the underlying judgment. Because those issues are not before us, we do not address them.

2 time, he must show that he "has a case meritorious or

substantial in the sense of presenting a question of law

deserving judicial investigation and discussion." Tisei v.

Building Inspector of Marlborough, 3 Mass. App. Ct. 377, 379

(1975). We review the single justice's order vacating the entry

of the appeal and denying reconsideration for an error of law or

abuse of discretion. See Troy Indus. v. Samson Mfg. Corp., 76

Mass. App. Ct. 575, 581 (2010). Because the defendant failed to

make a showing as required by Tisei, supra, we conclude that the

single justice did not abuse her discretion in entering the

challenged orders. 5 See Adjartey v. Central Div. of the Hous.

Court Dep't, 481 Mass. 830, 833 (2019).

Order vacating entry of appeal affirmed.

Order denying motion for reconsideration affirmed.

By the Court (Milkey, Blake & Sacks, JJ. 6),

Clerk

Entered: October 4, 2023.

5 The defendant's argument that the plaintiff should have been defaulted for failure to timely answer the defendant's counterclaim is meritless. The Superior Court docket reflects that the plaintiff filed its answer on February 9, 2021, more than one week before the defendant filed his affidavit seeking a default. 6 The panelists are listed in order of seniority.