Reznik v. Mendes

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SJC-12505
MARK REZNIK vs. JOSEPH P. MENDES & others.1
November 15, 2018.
Supreme Judicial Court, Superintendence of inferior courts.
Practice, Civil, Notice of appeal, Attorney's fees, Costs.
Mark Reznik filed a petition pursuant to G. L. c. 211, § 3,
in the county court seeking, among other things, an order
requiring the Appeals Court to accept his notice of appeal from
its award of appellate attorney's fees against him in the
underlying litigation.2 The single justice denied the petition
1 Michael P. Johnson and the Massachusetts Appeals Court.
The Appeals Court is a nominal party only. See S.J.C. Rule
2:22, 422 Mass. 1302 (1996). The defendants in the underlying
litigation, Nicholas Urzia and Miranda Equipment & Contracting,
Inc., were not named as parties in the petition, although they
should have been. See id.
2 To the extent Reznik's petition also sought relief from
the Appeals Court's decision on the substantive merits of his
appeal, and from a decision of the Appellate Division of the
District Court dismissing his initial appeal to that court, the
single justice correctly denied relief. The power of general
superintendence "is meant for situations where a litigant has no
adequate alternative remedy." McMenimen v. Passatempo, 452
Mass. 178, 185 (2008). With respect to the Appellate Division's
decision, Reznik could have appealed, and in fact did appeal, to
the Appeals Court. With respect to the Appeals Court's decision
on the merits, he could have petitioned for a rehearing in the
Appeals Court or applied for further appellate review in this
court.
2
and the accompanying motions that Reznik had also filed in the
county court. We affirm.
This case originated in the District Court when Reznik
filed a civil complaint against Nicholas Urzia and Miranda
Equipment & Contracting, Inc. The complaint was eventually
dismissed because of, among other things, Reznik's multiple
violations of interim court orders. Reznik's appeal to the
Appellate Division of the District Court from the dismissal of
his case was thereafter dismissed by the Appellate Division for
failure to comply with the appellate rules. Reznik then
appealed to the Appeals Court. In a memorandum and order
pursuant to its rule 1:28, the Appeals Court affirmed the
Appellate Division's decision, concluded that Reznik's appeal
from that decision was "interposed solely for purposes of
harassment, wholly lack[ed] legal or factual basis, and
otherwise [was] frivolous," and granted the appellees' request
for appellate attorney's fees and double costs pursuant to Mass.
R. A. P. 25, as appearing in 376 Mass. 949 (1979). Reznik
neither petitioned the Appeals Court for a rehearing nor filed
an application for further review in this court, as he might
have done at that juncture. Instead, he filed a notice of
appeal in the Appeals Court, purporting to appeal as a matter of
right to this court pursuant to G. L. c. 231, § 6G, from the
Appeals Court's award of fees and double costs.
The Appeals Court struck Reznik's notice of appeal from its
award of fees and double costs. The court explained that its
order was not predicated on G. L. c. 231, § 6F, and therefore he
had no right to appeal pursuant to G. L. c. 231, § 6G. Rather,
as the Appeals Court explained to him, its award of fees and
double costs was based on Mass. R. A. P. 25, from which there is
no appeal to this court as a matter of right. Reznik's options
at that point were to petition for rehearing in the Appeals
Court, Mass. R. A. P. 27, as amended, 410 Mass. 1602 (1991);
apply for further appellate review in this court, Mass. R. A. P.
27.1, as amended, 441 Mass. 1601 (2004); or appeal from the
The single justice also correctly denied Reznik's request
for discipline of the two attorneys who, in the Appeals Court,
requested attorney's fees and costs on behalf of their clients.
See Gorbatova v. Semuels, 462 Mass. 1012, 1012 (2012) ("no
private right to commence a court action to seek disciplinary
action against an attorney"); Matter of a Request for an
Investigation of an Attorney, 449 Mass. 1013, 1014 (2008).
3
striking of his notice of appeal.3 See Fronk v. Fowler, 456
Mass. 317, 326-327 & n.20 (2010) (describing different routes
for obtaining appellate review of fee awards under G. L. c. 231,
§ 6F, on one hand, and awards under Mass. R. A. P. 25 and
G. L. c. 211A, § 15, on other hand; "Decisions concerning the
award of litigation costs follow different appellate paths
depending on their origin"); Masterpiece Kitchen & Bath, Inc. v.
Gordon, 425 Mass. 325, 330 & n.11 (1997) (G. L. c. 231, § 6G,
only authorizes appeals "from decisions rendered under G. L. c.
231, § 6F"; "party aggrieved by the award of costs by the
Appeals Court under G. L. c. 211A, § 15, and Mass. R. A. P. 25
may seek review in this court by applying for further appellate
review"); Avery v. Steele, 414 Mass. 450, 451 (1993) (granting
further appellate review to consider assessment of double costs
under Mass. R. A. P. 25 and G. L. c. 211A, § 15).
This is not a case where Reznik had a right to appellate
review that was thwarted by a court. Contrast Reznik v.
Garaffo, 466 Mass. 1034, 1035 (2013); Reznik v. District Court
Dep't of the Trial Court, 456 Mass. 1001, 1001 (2010). He was
not entitled to appeal to this court as a matter of right. He
had an opportunity to seek discretionary review from this court
by applying for further appellate review, but failed to avail
3 Striking a notice of appeal on the ground that no right to
appeal exists, as the Appeals Court did here, does not foreclose
one's right to appeal altogether, but it limits the scope of
what may be appealed. A party who believes that he or she has a
right to appeal from a challenged order may file a second notice
of appeal from the order striking the first notice of appeal.
It would then be incumbent on the lower court to allow an appeal
to proceed on the limited question whether the party had a right
to appeal from the challenged order in the first place. See
Elles v. Zoning Board of Appeals of Quincy, 450 Mass. 671, 673
(2008), and cases cited. See also Skandha v. Clerk of the
Superior Court for Civil Business in Suffolk County, 472 Mass.
1017, 1019 (2015); Reznik v. Garaffo, 466 Mass. 1034, 1035
(2013); Reznik v. District Court Dep't of the Trial Court, 456
Mass. 1001, 1001 (2010). The result we reach here -- that
Reznik had no right to appeal pursuant to G. L. c. 231, § 6G,
because the Appeals Court's award of fees and double costs was
made under Mass. R. A. P. 25 and not under G. L. c. 231, § 6F --
would be the same regardless whether Reznik had filed a second
notice of appeal in the Appeals Court, and the case had come
before us in that fashion, instead of petitioning a single
justice of this court under G. L. c. 211, § 3, as he did.
4
himself of that opportunity even after the Appeals Court
directed him in writing to the correct procedure.
Because Reznik had no right to appeal pursuant to
G. L. c. 231, § 6G, and because he could have applied for
further appellate review in this court, the single justice
properly declined to exercise this court's extraordinary power
of general superintendence under G. L. c. 211, § 3.4
Judgment affirmed.
The case was submitted on briefs.
Mark Reznik, pro se.
Michael P. Johnson, pro se.
Joseph P. Mendes, pro se.
4 Reznik's filings both before the single justice and before
the full court were replete with vitriolic, unsubstantiated, and
ultimately irrelevant accusations against the attorneys and
judges who were involved in this case. We have previously
cautioned him against this, and have placed him on notice that
the inclusion of such material may lead to sanctions. See
Reznik v. Garaffo, 466 Mass. at 1035 n.4. The respondents did
not include a request for sanctions in their briefs before this
court, but in the future we will not hesitate to impose
sanctions with or without a request. See Avery v. Steele, 414
Mass. 450 (1993).