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-986
S. DOE1
vs.
AARON JONCAS, METCO DIRECTOR OF THE TOWN OF CONCORD & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, S. Doe (mother), appeals from an order
striking her appearance and notice of appeal that she filed on
behalf of her child, Cory.3 A Superior Court judge ruled that
the mother, a nonattorney litigant proceeding pro se, was not
1"S. Doe" is a pseudonym that the plaintiff assigned to herself in her complaint.
2Jessica Murphy, director of special education in the Concord Public Schools; and Diana Frost Rigby, former superintendent of the Concord Public Schools. S. Doe brought claims against each defendant in their individual and official capacities. During the pendency of the Superior Court action, Rigby's successor, Laurie Hunter, was substituted for Rigby to the extent S. Doe brought claims against Rigby in her official capacity. See Mass. R. Civ. P. 25 (d), 365 Mass. 771 (1974).
3 A pseudonym. permitted to file a notice of appeal on Cory's behalf where
Cory, represented by a guardian ad litem, previously settled all
of his claims. We affirm.
Background. The mother filed a complaint in Superior Court
alleging claims on behalf of herself and Cory against employees
of both the Concord Public Schools and the Metropolitan Council
for Educational Opportunity (METCO, Inc.) (collectively,
defendants).4 The complaint alleged that the defendants
discriminated against Cory in violation of Federal and State
law, and that the defendants intentionally inflicted emotional
distress upon Cory and the mother. In 2018, a judge dismissed
all of the claims except count seven, the tort claim alleging
intentional infliction of emotional distress by the defendants
against Cory and the mother. On the defendants' motion, the
judge appointed a guardian ad litem to represent Cory's
interests.
Through his guardian ad litem, Cory settled his claim, and
jointly petitioned with the defendants for approval of the
settlement agreement pursuant to G. L. c. 231, § 140C 1/2. The
4 During the Superior Court proceedings, the plaintiff voluntarily dismissed her claims against METCO's executive director and METCO itself, leaving METCO's director, Aaron Joncas, as the only remaining defendant associated with METCO in this case.
2 mother strenuously objected to the settlement.5 A judge approved
the settlement, finding that it was in Cory's best interest. As
to the mother's remaining claim for intentional infliction of
emotional distress, a judge allowed the defendants' motion to
dismiss that claim.6 Judgment entered.
On January 17, 2023, the mother signed and filed a notice
of appeal, captioned as if filed on behalf of both herself and
Cory. Cory's guardian ad litem moved to strike "the appearance
and/or appeal filed by [the mother] on behalf of [Cory],"
asserting that the mother lacked standing to take an appeal on
Cory's behalf.7 On May 26, 2023, a different Superior Court
judge allowed Cory's motion to strike the mother's appearance on
5 The mother moved to reconsider appointment of the guardian ad litem, repeatedly moved to intervene on behalf of Cory, moved for appointment of independent counsel for Cory, and sought relief from a single justice of this court, all of which were denied.
6 The mother appealed from the judgment of dismissal; that case is pending separately in this court and is not before us.
7 Motions were filed in Cory's name requesting that the court remove his guardian ad litem and appoint new counsel. A judge denied those motions because the settlement had already been approved. Notices of appeal were also filed in Cory's name. In that appeal, a petition for relief pursuant to G. L. c. 231, § 118, was filed in Cory's name, and single justices ruled that, as an unrepresented minor child, Cory may not prosecute his own appeal or be represented by a nonattorney, but accorded Cory an extension of time to obtain counsel and file a brief. Cory failed to do so within the time provided, and his appeal was dismissed pursuant to rule 19.0 of the Rules of the Appeals Court, as appearing in 97 Mass. App. Ct. 1011 (2020).
3 behalf of Cory and denied the mother's motion to intervene. The
mother filed a notice of appeal from those rulings solely on her
own behalf. That appeal is now before us.
Discussion. 1. Motion to strike. The mother argues that
the judge improperly struck her appearance and January 17, 2023
notice of appeal, which stated that it was filed on Cory's
behalf.8 First, the mother contends that the judge abused her
discretion by granting the defendants' motion to strike, because
in doing so the judge considered the merits of Cory's appeal.
Second, the mother maintains that she is not "prosecuting the
appeal" on Cory's behalf, and so she is not engaging in the
unauthorized practice of law.
We review the allowance of a motion to strike a notice of
appeal for error of law or an abuse of discretion. See Rudders
v. Building Comm'r of Barnstable, 51 Mass. App. Ct. 108, 110-111
(2001) (judge erroneously struck notice of appeal). See also
Scheuer v. Mahoney, 80 Mass. App. Ct. 704, 708 (2011) (applying
abuse of discretion standard to judge's dismissal of appeal).
In granting Cory's motion to strike the mother's notice of
appeal and appearance purportedly filed on Cory's behalf, the
8 On appeal, the mother does not raise any issue about the denial of her motion to intervene, so we do not consider that issue. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief").
4 judge considered that Cory was represented by a court-appointed
guardian ad litem who resolved all of Cory's claims through a
court-approved settlement. The judge concluded that the
guardian ad litem had effectively represented Cory's interests.
The judge also said she "s[aw] no reason to disturb another
judge's findings that the settlement was in the best interest of
the child."
The mother relies on Rudders, 51 Mass. App. Ct. at 110-111,
to argue that the dismissal was improper because the judge's
stated reasons went to the merits of Cory's appeal. While a
trial court judge may strike a notice of appeal for certain
procedural reasons, "[q]uestions going to the merits of the
claimed appeal are for the appellate court to decide." Id. See
Jahm v. Mall at Liberty Tree, LLC, 101 Mass. App. Ct. 901, 902-
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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-986
S. DOE1
vs.
AARON JONCAS, METCO DIRECTOR OF THE TOWN OF CONCORD & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, S. Doe (mother), appeals from an order
striking her appearance and notice of appeal that she filed on
behalf of her child, Cory.3 A Superior Court judge ruled that
the mother, a nonattorney litigant proceeding pro se, was not
1"S. Doe" is a pseudonym that the plaintiff assigned to herself in her complaint.
2Jessica Murphy, director of special education in the Concord Public Schools; and Diana Frost Rigby, former superintendent of the Concord Public Schools. S. Doe brought claims against each defendant in their individual and official capacities. During the pendency of the Superior Court action, Rigby's successor, Laurie Hunter, was substituted for Rigby to the extent S. Doe brought claims against Rigby in her official capacity. See Mass. R. Civ. P. 25 (d), 365 Mass. 771 (1974).
3 A pseudonym. permitted to file a notice of appeal on Cory's behalf where
Cory, represented by a guardian ad litem, previously settled all
of his claims. We affirm.
Background. The mother filed a complaint in Superior Court
alleging claims on behalf of herself and Cory against employees
of both the Concord Public Schools and the Metropolitan Council
for Educational Opportunity (METCO, Inc.) (collectively,
defendants).4 The complaint alleged that the defendants
discriminated against Cory in violation of Federal and State
law, and that the defendants intentionally inflicted emotional
distress upon Cory and the mother. In 2018, a judge dismissed
all of the claims except count seven, the tort claim alleging
intentional infliction of emotional distress by the defendants
against Cory and the mother. On the defendants' motion, the
judge appointed a guardian ad litem to represent Cory's
interests.
Through his guardian ad litem, Cory settled his claim, and
jointly petitioned with the defendants for approval of the
settlement agreement pursuant to G. L. c. 231, § 140C 1/2. The
4 During the Superior Court proceedings, the plaintiff voluntarily dismissed her claims against METCO's executive director and METCO itself, leaving METCO's director, Aaron Joncas, as the only remaining defendant associated with METCO in this case.
2 mother strenuously objected to the settlement.5 A judge approved
the settlement, finding that it was in Cory's best interest. As
to the mother's remaining claim for intentional infliction of
emotional distress, a judge allowed the defendants' motion to
dismiss that claim.6 Judgment entered.
On January 17, 2023, the mother signed and filed a notice
of appeal, captioned as if filed on behalf of both herself and
Cory. Cory's guardian ad litem moved to strike "the appearance
and/or appeal filed by [the mother] on behalf of [Cory],"
asserting that the mother lacked standing to take an appeal on
Cory's behalf.7 On May 26, 2023, a different Superior Court
judge allowed Cory's motion to strike the mother's appearance on
5 The mother moved to reconsider appointment of the guardian ad litem, repeatedly moved to intervene on behalf of Cory, moved for appointment of independent counsel for Cory, and sought relief from a single justice of this court, all of which were denied.
6 The mother appealed from the judgment of dismissal; that case is pending separately in this court and is not before us.
7 Motions were filed in Cory's name requesting that the court remove his guardian ad litem and appoint new counsel. A judge denied those motions because the settlement had already been approved. Notices of appeal were also filed in Cory's name. In that appeal, a petition for relief pursuant to G. L. c. 231, § 118, was filed in Cory's name, and single justices ruled that, as an unrepresented minor child, Cory may not prosecute his own appeal or be represented by a nonattorney, but accorded Cory an extension of time to obtain counsel and file a brief. Cory failed to do so within the time provided, and his appeal was dismissed pursuant to rule 19.0 of the Rules of the Appeals Court, as appearing in 97 Mass. App. Ct. 1011 (2020).
3 behalf of Cory and denied the mother's motion to intervene. The
mother filed a notice of appeal from those rulings solely on her
own behalf. That appeal is now before us.
Discussion. 1. Motion to strike. The mother argues that
the judge improperly struck her appearance and January 17, 2023
notice of appeal, which stated that it was filed on Cory's
behalf.8 First, the mother contends that the judge abused her
discretion by granting the defendants' motion to strike, because
in doing so the judge considered the merits of Cory's appeal.
Second, the mother maintains that she is not "prosecuting the
appeal" on Cory's behalf, and so she is not engaging in the
unauthorized practice of law.
We review the allowance of a motion to strike a notice of
appeal for error of law or an abuse of discretion. See Rudders
v. Building Comm'r of Barnstable, 51 Mass. App. Ct. 108, 110-111
(2001) (judge erroneously struck notice of appeal). See also
Scheuer v. Mahoney, 80 Mass. App. Ct. 704, 708 (2011) (applying
abuse of discretion standard to judge's dismissal of appeal).
In granting Cory's motion to strike the mother's notice of
appeal and appearance purportedly filed on Cory's behalf, the
8 On appeal, the mother does not raise any issue about the denial of her motion to intervene, so we do not consider that issue. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief").
4 judge considered that Cory was represented by a court-appointed
guardian ad litem who resolved all of Cory's claims through a
court-approved settlement. The judge concluded that the
guardian ad litem had effectively represented Cory's interests.
The judge also said she "s[aw] no reason to disturb another
judge's findings that the settlement was in the best interest of
the child."
The mother relies on Rudders, 51 Mass. App. Ct. at 110-111,
to argue that the dismissal was improper because the judge's
stated reasons went to the merits of Cory's appeal. While a
trial court judge may strike a notice of appeal for certain
procedural reasons, "[q]uestions going to the merits of the
claimed appeal are for the appellate court to decide." Id. See
Jahm v. Mall at Liberty Tree, LLC, 101 Mass. App. Ct. 901, 902-
903 (2022) (vacating dismissal of appeal because trial judge
lacked authority to determine that plaintiff was not "aggrieved"
by final judgment). The mother argues that the judge improperly
struck the notice of appeal, because the reason for doing so was
not one of the specific procedural reasons identified in
Rudders, such as untimeliness of the notice of appeal. Rudders,
supra at 110 n.7. We are not persuaded, because the judge's
ruling is based on a fundamental procedural defect in the
5 mother's case: the mother does not have standing to represent
Cory.9
Nonattorney litigants who are proceeding pro se may not
represent anyone other than themselves. See Burnham v. Justices
of the Superior Court, 439 Mass. 1018, 1018 (2003) (nonattorney
may not argue in court on behalf of other individuals and
corporations). See also G. L. c. 221, § 46A ("No individual,
other than a member, in good standing, of the bar of this
commonwealth shall practice law"). The judge did not abuse her
discretion in concluding that the mother was not permitted to
file a notice of appeal on Cory's behalf, where Cory had settled
his claims that were subsumed in the judgment.10
Additionally, the mother argues that by simply filing a
notice of appeal on Cory's behalf she was not "prosecuting the
9 Cory's rights are not without protection. As mentioned, Cory's appeal from the Superior Court order approving the settlement was entered separately on this court's docket, see note 7 supra, as was the mother's appeal from dismissal of her claim for intentional infliction of emotional distress, see note 6 supra. We take no position on the validity of any challenge by Cory or the mother to that settlement, as that issue is not before us. Cf. Abdulky v. Lubin & Meyer, P.C., 102 Mass. App. Ct. 441, 447-448 (2023), cert. denied, 144 S. Ct. 806 (2024) (parents' legal malpractice claims not barred by court-approved settlement under G. L. c. 231, § 140C 1/2).
10To the extent that the same notice of appeal also sought appellate review of the dismissal of the mother's emotional distress claim, nothing in the judge's ruling prevented the mother from pursuing that appeal, as she apparently is doing. See note 6, supra.
6 appeal," so she was not engaged in the unauthorized practice of
law. This argument is unavailing. Appealing a legal claim on
behalf of another pursuant to Mass. R. A. P. 3, as appearing in
481 Mass. 1603 (2019), is practicing law. See LAS Collection
Mgt. v. Pagan, 447 Mass. 847, 849-850 (2006), quoting Lowell Bar
Ass'n v. Loeb, 315 Mass. 176, 183 (1943) ("Plainly the
commencement and prosecution for another of legal proceedings in
court, and the advocacy for another of a cause before a
court . . . are reserved exclusively for members of the bar").
In certain circumstances, a nonattorney may perform the
"essentially ministerial" act of filing a notice of appeal on
behalf of another, "so long as an attorney promptly files an
appearance and prosecutes the appeal" (quotation and citation
omitted). Braxton v. Boston, 96 Mass. App. Ct. 714, 718-719
(2019). But those circumstances were not present here, where
after the mother filed the notice of appeal on January 17, 2023,
more than four months passed before the judge struck that notice
of appeal, and during that time no attorney filed an appearance
representing Cory. See note 7 supra.
2. Jurisdiction. The mother also argues that once her
notice of appeal was docketed in the Superior Court, that court
no longer had jurisdiction over the case and the judge could not
rule on the defendants' motion to strike the notice of appeal.
That is incorrect. Once an appeal is entered in the appellate
7 court docket, the trial court that issued the judgment or order
appealed from is divested of jurisdiction. See Commonwealth v.
Cronk, 396 Mass. 194, 197 (1985). Until then, however, the
trial court retains jurisdiction, even after a party files a
notice of appeal. See Commonwealth v. Washington W., 462 Mass.
204, 215 n.6 (2012). Jurisdiction was proper here because the
judge allowed the defendants' motion to strike on May 26, 2023,
about three months before the appeal entered on the docket of
the Appeals Court.
Orders dated May 26, 2023, allowing child's motion to strike S. Doe's appearance and appeal on child's behalf, and denying S. Doe's motion to intervene, affirmed.
By the Court (Massing, Henry & Grant, JJ.11),
Clerk
Entered: December 12, 2024.
11 The panelists are listed in order of seniority.