BRIAN SMITH & Another v. MARGARET BRUZELIUS & Others.

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-478

BRIAN SMITH & another 1

vs.

MARGARET BRUZELIUS & others. 2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court judge allowed the defendants' motions to

dismiss the plaintiffs' complaints. After the deadline for

filing notices of appeal lapsed, the plaintiffs filed motions

with a single justice of this court seeking leave to file late

notices of appeal. The single justice denied relief and denied

a motion for reconsideration, and this appeal followed. We

affirm the decision of the single justice.

Background. We summarize the pertinent procedural

background. Margaret and Brian Smith, the plaintiffs, filed in

the Superior Court three separate complaints. Each complaint

arose out of the same set of events that followed Margaret

1 Margaret Anne Smith.
2 Donna Lisker, Mary Harrington, Beth Powell, Kathleen McCartney,
Kristin Hughes, Paul Lannon, Holland Knight, LLP, and Smith
College.
Smith's efforts to drop a class while attending Smith College.

A Superior Court judge denied the plaintiffs' motion to

consolidate and dismissed the complaints on November 19, 2021,

in a single order applicable to all three actions. The

plaintiffs did not file notices of appeal regarding those

decisions.

After the thirty-day deadline for filing a notice of appeal

expired under Mass. R. A. P. 4 (a) (1), as appearing in 481

Mass. 1606 (2019), the plaintiffs filed several motions in the

single justice session of this court. On February 18, 2022,

Brian Smith filed a sixty-five page motion (with attachments) to

"Extend Deadline to File Notice of Appeal." On March 8, 2022,

Brian Smith and Margaret Smith filed a fifteen-page motion (with

attachments) to "Restore Right to File a Notice of Motion After

Appeals to Restore Rights to File Reconsideration Motions

Obstructed by Error." On that same date, Brian Smith filed a

sixty-five page "revised" motion to "Extend Deadline to File

Notice of Appeal." All three motions sought to preserve, or

resurrect, the plaintiffs' appellate rights relative to their

complaints that were dismissed in the Superior Court.

On March 15, 2022, the single justice denied relief after

concluding that the plaintiffs did not establish the requisite

excusable neglect for failing to file notices of appeal and did

not demonstrate a meritorious appellate issue. The plaintiffs

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did not file a notice of appeal regarding that decision.

Instead, on March 25, 2022, the plaintiffs filed a "Motion for

Leave to File a Late Reconsideration Motions and Related

Relief," citing Mass. R. A. P. 14 (b), as appearing in 481 Mass.

1626 (2019). In that motion, the plaintiffs acknowledged that

their "prior filing was deficient with respect to citing law or

explaining on what authority" they were proceeding. Through

this new filing, they sought to establish excusable neglect for

failing to file notices of appeal in the Superior Court, and

they also sought to establish a meritorious appellate issue with

respect to the dismissals. On March 31, 2022, the single

justice treated the March 25 motion as a motion for

reconsideration of his March 15 decision and denied relief. The

plaintiffs filed a notice of appeal from this decision on May 2,

2022.

Discussion. An appeal "shall be taken by filing a notice

of appeal with the clerk of the lower court." Mass. R. A. P. 3

(a), as appearing in 481 Mass. 1603 (2019). In a civil case

involving private parties, the notice "shall be filed with the

clerk of the lower court within 30 days of the date of the entry

of the judgment, decree, appealable order, or adjudication

appealed from." Mass. R. A. P. 4 (a) (1). A single justice of

an appellate court may enlarge the time for filing a notice of

appeal "for good cause shown." Mass. R. A. P. 14 (b). Good

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cause requires (1) excusable neglect and (2) a meritorious

appellate issue. Bernard v. United Brands Co., 27 Mass. App.

Ct. 415, 418 n.8 (1989), citing Mass. R. A. P. 4 (c), as

amended, 378 Mass. 928 (1979). Excusable neglect contemplates

"emergency situations only" (citation omitted). Pierce v.

Hansen Eng'g & Mach. Co., 95 Mass. App. Ct. 713, 717 (2019). 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. App. Ct. 575, 581 (2010). "[T]he

burden of showing an abuse of discretion is a difficult one to

carry." Id.

On appeal, the plaintiffs raise three primary issues and

pose numerous subsidiary questions relative to actions taken in

the trial court, but those wide-ranging, fact-intensive matters

are not responsive to the discrete issue presented in this

appeal. To be clear, the only matter before this court is the

single justice decision that entered on March 31, 2022. In

denying the plaintiffs' motion, the single justice treated the

matter as a motion for reconsideration of his earlier decision

on March 15, 2022. We discern no error of law or abuse of

discretion relative to the single justice's denial of the motion

for reconsideration.

The single justice denied the plaintiffs' motions seeking

to preserve or resurrect their appellate rights because the

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plaintiffs did not establish excusable neglect for failing to

file notices of appeal and did not demonstrate a meritorious

appellate issue. In response, the plaintiffs took this denial

as an invitation to write a better motion that addressed the

deficiencies pointed out by the single justice. In fact, in the

motion seeking reconsideration, the plaintiffs agreed that their

"prior filing was deficient" and sought to remedy the

deficiency. A motion for reconsideration, however, is more than

just taking a "second bite at the apple" following a judge's

decision that points out deficiencies in the original

presentation. Liberty Square Dev. Trust v. Worcester, 441 Mass.

605, 611 (2004). Rather, a motion for reconsideration should

specify either changed circumstances (such as newly discovered

evidence or a development of relevant law), or a particular and

demonstrable error in the original decision. Audubon Hill S.

Condominium Ass'n v. Community Ass'n Underwriters of Am., Inc.,

82 Mass. App. Ct. 461, 470 (2012). Also, when new information

is offered following a judicial decision, as here with the

single justice, a party should show some good reason for its

failure to submit the information to the judge earlier. Cf.

Mass. R. Civ. P. 60 (b) (1), 365 Mass. 828 (1974) (allowing for

relief from judgment due to "mistake, inadvertence, surprise, or

excusable neglect"). The plaintiffs' motion for reconsideration

did not attempt to make the requisite showing and instead

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focused on trial court proceedings. Therefore, we discern no

error of law, and we conclude that the plaintiffs have not met

their burden of showing an abuse of discretion by the single

justice.

We are not insensitive to the fact that the result we have

reached in this case, dictated by salutary rules of procedure

and the broad discretion of the single justice, frustrates the

plaintiffs' efforts over the past three years to present their

claims at trial. We must keep in mind, however, that "[r]ules

of procedure are not just guidelines. Their purpose is to

provide an orderly, predictable process by which parties to a

lawsuit conduct their business." USTrust Co. v. Kennedy, 17

Mass. App. Ct. 131, 135 (1983). The central misstep here

occurred when the plaintiffs failed to file notices of appeal

from the dismissals of the complaints. Filing such a notice is

neither onerous nor complex and "merely requires a one-sentence

document indicating the party's intent to appeal and the names

of all parties." Commonwealth v. Smith, 491 Mass. 377, 384

(2023). Though we are cognizant of the plaintiffs' pro se

status, they did not take the necessary step to initiate the

appeal. As a result, their case derailed, and they did not meet

the requisite legal standards to get it back on track. Rather

than acknowledging this critical misstep, the plaintiffs blame

the Superior Court Clerk's Office for providing incorrect advice

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and setting in motion a series of events that ultimately led to

this appeal. Even if reliance on incorrect advice permitted the

single justice to find excusable neglect, it did not require it.

See Krupp v. Gulf Oil Corp., 29 Mass. App. Ct. 116, 119 (1990)

("We know of no authority for treating as excusable neglect

reliance on a clerk's incorrect advice concerning a general

principle of law"). "Although some leniency is appropriate in

determining whether pro se litigants have complied with rules of

procedure, the rules nevertheless bind pro se litigants as all

other litigants." Brown v. Chicopee Fire Fighters Ass'n, Local

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

Conclusion. The single justice did not err or abuse his

discretion in denying the plaintiffs' motion for

reconsideration. 3

Order of single justice dated
March 31, 2022, denying
motion for reconsideration,
affirmed.

By the Court (Neyman, Sacks &
Hodgens, JJ. 4),

Clerk

Entered: August 17, 2023.

3 The defendants' motion for appellate attorney's fees is denied.
4 The panelists are listed in order of seniority.

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