TOWN OF SALISBURY v. GRACEMARIE TOMASELLI & Another.

• Court: Massachusetts Appeals Court
• Decided: March 17, 2023
• Docket: 21-P-0932
• Status: Unpublished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

21-P-932

TOWN OF SALISBURY

vs.

GRACEMARIE TOMASELLI & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The pro se appellants appeal from a single justice order

denying their motion to late docket their appeal and from a

single justice order denying a motion to reconsider that initial

denial. There is no dispute that the appellants timely received

from the District Court Department a notice dated July 15, 2021,

reading in full, "The parties are hereby NOTIFIED that the

RECORD IS FULLY ASSEMBLED in the subject case in accordance with

the Massachusetts Rules of Appellate Procedure (M.R.A.P. Rule

9)." They failed to docket their appeal within the fourteen

days provided by Mass. R. A. P. 10 (a) (1), as appearing in 481

Mass. 1618 (2019).

1 Joyce Tomaselli. The appellants subsequently, after the deadline under rule

10 had passed, received a notice from this court that that

notice of assembly of the record was received by the court on

July 16, 2021. Our notice stated that, pursuant to Mass.

R. A. P. 10 (a) (1), each appellant has fourteen days from

receipt of the notice of assembly to docket the appeal in the

Appeals Court by paying the required entry fee or moving for

waiver of the fee on grounds of indigency. Our notice stated

that as of August 18, 2021, no appellant had entered the appeal,

pursuant to Mass. R. A. P. 10 (a) (1). Our notice also stated

that if an appellant wished to pursue the appeal, a motion had

to be filed before the single justice for leave to docket the

appeal late. The appellants filed such a motion.

In cases in which an appellant fails to docket a civil

appeal in a timely manner, pursuant to Mass.

R. A. P. 10 (a) (1), as a threshold matter, the appellant must

demonstrate "that the delay was caused by excusable neglect."

Howard v. Boston Water and Sewer Comm'n, 96 Mass. App. Ct. 119,

122 (2019). In their motion, the appellants asserted that they

"did not know about M.R.A.P. Rule 9(e) and Rule 10(a)(1) until

we received the Appeals Court notice." They also asserted that

they had contacted the Appellate Division of the District Court

to obtain the transcripts of the hearing.

2 With respect to this latter assertion, their motion

included no explanation of how this was relevant to their

failure to docket the appeal timely. With respect to the first

assertion, we cannot properly say that it was an abuse of

discretion for the single justice to conclude that lack of

knowledge of the rules, even on the part of a pro se appellant,

does not amount to excusable neglect. See Neuwirth v. Neuwirth,

85 Mass. App. Ct. 248, 257 (2014) (good faith misunderstanding

of pro se appellant's obligation under rules does not constitute

excusable neglect). The appellants' emergency motion for

reconsideration of the single justice's order did not present

any additional reason for the failure timely to docket the

appeal, and, therefore, again, we cannot properly conclude that

the single justice's denial of that motion was an abuse of

discretion.

Before us the appellants point out that the notice of

assembly of the record did not refer to rule 10, but only to

rule 9. The appellants argue that the notices sent by other

courts of the assembly of the record make reference to rule 10,

and that, in omitting to mention the rule, the District Court

Department's form notice failed to provide them proper notice.

They have included as exhibits form notices of assembly of the

record from several courts that do indeed state that action must

be taken within a number of days identified in the rule; indeed,

3 they have included the notice of assembly of the record provided

by this court in this appeal from the single justice orders, and

it, too, cites rule 10.

We cannot say that there is no force to this argument, but

as it was not raised before the single justice either in the

original motion to late docket the appeal or in the motion for

reconsideration, it is not properly before us. Therefore, we

may not address it, and we express no opinion on its ultimate

merit. The orders of the single justice are affirmed.

Orders denying motion to late docket the appeal and for reconsideration affirmed.

By the Court (Rubin, Englander & Hand, JJ.2),

Clerk

Entered: March 17, 2023.

2 The panelists are listed in order of seniority.