DANIEL E. SULLIVAN, THIRD v. CAITLIN FLAHERTY & 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-823
DANIEL E. SULLIVAN, THIRD
vs.
CAITLIN FLAHERTY 1 & others. 2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2015, a Superior Court judge allowed the defendant
Caitlin Flaherty's motion to dismiss and ordered the plaintiff
to pay the defendant's attorney's fees; a separate and final
judgment entered to that effect. The plaintiff did not appeal
from that judgment. In 2021, with no payment made by the
plaintiff, a Superior Court judge issued a judgment in aid of
execution in the amount owed, and in 2022 a different Superior
Court judge entered an order permitting the defendant leave to
file for additional attorney's fees. The defendant appealed
from the judgment and order, and the records were assembled by
the trial court. After the deadline for docketing the appeals
1 Caitlin Flaherty, aka Caitlin F. Wonson, Caitlin E. Wonson.
2 Kevin Morris, Kimberly Jones, Todd Goodwin, Timothy Cleary,
Brian Gentry, Paul Catanoso, and Michael Mackinnon.
lapsed, the plaintiff filed a motion with a single justice of
this court seeking leave to late docket the appeals. The single
justice denied relief ruling that the plaintiff failed to
establish excusable neglect and denied a motion for
reconsideration. This appeal followed. We affirm the order of
the single justice.
1. Background. We summarize the relevant procedural
background. In 2014, the plaintiff, Daniel E. Sullivan, Third,
filed an action against the defendant, Caitlin Flaherty and
several others, alleging various civil rights violations. In
2015, Flaherty's motion to dismiss was allowed, and the
plaintiff was ordered to pay Flaherty's attorney's fees. In
2021, a Superior Court judge issued a judgment in aid of
execution of the order. A different Superior Court judge,
finding that the plaintiff had committed a fraud upon the court,
entered a subsequent order allowing Flaherty leave to file for
additional attorney's fees. The plaintiff noticed a timely
appeal from both of these orders. However, the plaintiff failed
to timely docket either appeal under Mass. R. A. P. Rule 10 (a)
(1), as appearing in 481 Mass. 1618 (2019), which requires an
appellant to enter a case within fourteen days of receipt of the
notice of the assembly of the record. 3
3 Rule 10 (a) (1) states that "[w]ithin 14 days after receiving
from the clerk of the lower court the notice of assembly of the
2
After the deadline for docketing the appeals expired under
rule 10 (a) (1), the plaintiff filed a motion in the single
justice session of this court requesting that he be allowed to
docket the appeals late. 4 He argued that his failure to timely
docket the appeals should be considered excusable neglect
because he was busy preparing for anticipated depositions and
because he was focusing on filing a motion to consolidate the
two appeals. On August 3, 2022, the single justice denied
relief, concluding that the plaintiff failed to establish that
his failure to docket the appeals timely was due to excusable
neglect. A motion to reconsider was also denied. The plaintiff
filed a notice of appeal from the single justice order denying
his motion to docket the appeals late. 5
2. Discussion. 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.
record, each appellant, including each cross-appellant and
each appellant in a joint appeal, shall pay to the clerk of the
appellate court the docket fee required by law or request waiver
of the fee, and the clerk shall thereupon enter the appeal of
such appellant or cross-appellant upon the docket. If an
appellant is authorized to prosecute the appeal without payment
of fees, the clerk shall enter the appeal upon the docket at the
written request of a party."
4 It is undisputed that the plaintiff missed the deadlines to
docket his appeals.
5 Along with the motion for reconsideration, the plaintiff filed
a motion "to empanel a three-judge panel." This motion was
treated as a notice of appeal of the August 3, 2022, order by
the single justice.
3
App. Ct. 575, 581 (2010). "[T]he burden of showing an abuse of
discretion is a difficult one to carry." Id.On appeal, the plaintiff offers several additional reasons
why the motion to late docket the appeals should have been
allowed including a claim that the clerk's office failed to
properly provide notice and that his appeal was meritorious. To
be clear, the only matter properly before the court is the
single justice decision entered on August 3, 2022, in which the
single justice, finding that the plaintiff failed to establish
excusable neglect, denied the motion to late docket the appeals.
In cases in which an appellant fails to docket a civil appeal in
a timely manner, pursuant to rule 10 (a) (1), as a threshold
matter, the appellant must demonstrate that the delay was caused
by excusable neglect. See Howard v. Boston Water & Sewer
Comm'n, 96 Mass. App. Ct. 119, 122 (2019). "Excusable neglect"
has been defined to encompass "circumstances that are unique or
extraordinary, not [] any 'garden-variety oversight.'" Id. at
123; quoting Sheav v. Alvord, 66 Mass. App. Ct. 910, 911 (2006).
We see no error of law or abuse of discretion in the single
justice's denial of the motion to late docket the appeals. The
plaintiff argues that he committed excusable neglect because he
"admittedly was overwhelmed and inundated by the vast
coordinated flow [of] paperwork of opposing counsels that
required his timely reply." We cannot say that it was an abuse
4
of discretion for the single justice to find that preparing for
anticipated depositions, handling legal paperwork, and
consolidating two appeals does not amount to excusable neglect. 6
While we are mindful of the fact that the plaintiff has filed
these motions pro se, his failure to timely docket the appeals
cannot be overlooked. See Brown v. Chicopee Fire Fighters
Ass'n, Local 1710, IAFF, 408 Mass. 1003, 1004 n.4 (1990)
("Although some leniency is appropriate in determining whether
pro se litigants have complied with the rules of procedure, the
rules nevertheless bind pro se litigants as all other
litigants").
Order of the single justice
entered August 3, 2022,
affirmed.
By the Court (Rubin, Neyman &
Walsh, JJ. 7),
Clerk
Entered: November 8, 2023.
6 We note that, although it is not before us, the plaintiff's
motion for reconsideration does not offer any additional insight
into his failure to timely docket the appeals and its denial was
not an abuse of discretion.
7 The panelists are listed in order of seniority.
5