Newrez LLC v. Frederick J. Nuzzo. ( 2023 )

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.
3