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18-P-1355                                              Appeals Court

EDWARD R. PIERCE      vs.   HANSEN ENGINEERING & MACHINERY CO., INC.,
                                & another.1


                              No. 18-P-1355.

             Essex.         May 6, 2019. - July 31, 2019.

              Present:      Agnes, Shin, & Wendlandt, JJ.


Practice, Civil, Notice of appeal, Enlargement of time.       Notice,
     Timeliness. Words, "Excusable neglect."



     Civil action commenced in the Superior Court Department on
June 16, 2014.

     The case was tried before Timothy Q. Feeley, J.; motions
for a new trial or remittitur and to extend the time for filing
an appeal were considered by him.


     John A. Kiernan (Robert E. Koosa also present) for the
defendants.
     John P. Wilton for the plaintiff.


    WENDLANDT, J.      In this appeal, we reaffirm that garden

variety miscommunication between a party's lawyers, each of whom

purportedly believed in "good faith" that the other would file


    1   Hansen Aerospace Laboratories, Inc.
                                                                   2


the notice of appeal, fails to meet the showing of "excusable

neglect" required under Mass. R. A. P. 4 (c), as amended, 378

Mass. 928 (1979),2 to extend the time for filing the notice of

appeal.   Accordingly, we dismiss the appeal as untimely.

     Background.   The plaintiff, Edward R. Pierce, fell while

maneuvering a pallet jack, on which he was carrying an 800-pound

freight, from his delivery truck over a dock plate and onto the

loading dock of facilities in Danvers operated by the

defendants, Hansen Engineering and Machinery Co., Inc., and

Hansen Aerospace Laboratories, Inc.   The fall aggravated

Pierce's hip osteoarthritis and eventually required him to

undergo total hip replacement surgery.   Pierce has not regained

full use of his hip and was unable to resume work.

     Pierce filed this personal injury action against the

defendants, alleging that the defendants' negligent failure to

maintain the dock plate -- the mechanism that bridged the gap

between a delivery truck's trailer and the loading dock --

caused his injuries.   At the jury trial, he presented evidence

that the defendants failed to pursue the periodic, regular




     2 We cite to the Massachusetts Rules of Appellate Procedure
in effect during the relevant time period. The Rules were
wholly revised, effective March 1, 2019, primarily for stylistic
and organizational purposes. See Mass. R. A. P. 1, Reporter's
Notes--2019. The substantive requirements of Rule 4 at issue in
this case are unchanged. See Mass. R. A. P. 4, as amended, 481
Mass. 1606 (2019).
                                                                     3


maintenance schedule that was recommended by the dock plate

manufacturer's owner's manual.    Instead, the defendants

maintained the dock plate only after defects in its operation

were reported and required repair.    The history of these repairs

showed that defects in the dock plate's operation occurred about

twice annually and that, on at least one prior occasion, the

service call noted the "dock leveler[3] [was] not staying down in

below grade position" because of a worn ratchet bar which

otherwise functioned to hold down the dock plate.    Pierce's

technical expert opined that, as a result of the failure to

employ the recommended maintenance schedule, components of the

dock plate had become worn over time, causing them to fail and

allowing the dock plate to spring up as Pierce approached it

with the 800-pound freight.   Consistent with the expert's

opinion, Pierce testified that, after his fall, one of the

defendants' employees admitted that there had been problems with

the dock plate "for some time."

     The jury found the defendants were liable for Pierce's

injuries.   Final judgment entered on December 26, 2017.     The

defendants timely moved for a new trial or alternatively, for a

remittitur on December 29, 2017.     The judge's denial of the

motion was entered on February 12, 2018, which commenced the


     3 The parties used the terms dock leveler and dock plate
interchangeably.
                                                                      4


thirty-day period for filing a notice of appeal pursuant to

Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013).

    The defendants did not file the notice of appeal on or

before March 14, 2018 -- the deadline for doing so.      Instead, on

March 22, 2018 (eight days after the deadline), the defendants

filed a motion to extend the time to file a notice of appeal,

pursuant to Mass. R. A. P. 4 (c).   The judge allowed the

defendants' motion on March 27, 2018.    The defendant

subsequently filed a late notice of appeal on April 2, 2018 --

nineteen days after the March 14, 2018 deadline and forty-nine

days after the denial of defendants' posttrial motion.      On April

12, 2018, Pierce filed a notice of appeal from the judge's order

allowing a late notice of appeal.

    On appeal, the defendants allege various errors by the

judge, including the judge's denial of their request for a jury

instruction on comparative negligence.   In his cross appeal,

Pierce asserts that the judge abused his discretion in allowing

the defendants to file their notice of appeal late.      We turn to

the cross appeal.

    Excusable neglect.   Under Mass. R. A. P. 4 (a), appellants

in civil cases are required to file a notice of appeal within

thirty days of the date of the entry of the judgment or the
                                                                   5


order denying a motion for new trial.4   After the thirty-day

deadline, a judge can allow a motion for leave to file a late

notice of appeal only upon a showing of "excusable neglect."

Mass. R. A. P. 4 (c).5   We review the judge's allowance of the

motion to enlarge time to file a notice of appeal under the

abuse of discretion standard.   See Lawrence Sav. Bank v.

Garabedian, 49 Mass. App. Ct. 157, 161 (2000).   If the record

does not support a showing of excusable neglect, "there is no

room within which judicial discretion can operate."   Shaev v.

Alvord, 66 Mass. App. Ct. 910, 911 (2006).

     Here, the defendants purport to show excusable neglect on

the basis of an affidavit from their appellate counsel in which

he avers that (i) he was on vacation in Thailand at the time of

the deadline to file a notice of appeal, (ii) he had been

retained by the defendants as appellate counsel, (iii) he had




     4 "In a civil case, unless otherwise provided by statute,
the notice of appeal required by Rule 3 shall be filed with the
clerk of the lower court within thirty days of the date of the
entry of the judgment appealed from" or the entry of the order
denying a new trial motion. Mass. R. A. P. 4 (a).

     5 "Upon a showing of excusable neglect, the lower court may
extend the time for filing the notice of appeal by any party for
a period not to exceed thirty days from the expiration of the
time otherwise prescribed by this rule. Such an extension may
be granted before or after the time otherwise prescribed by this
rule has expired; but if a request for an extension is made
after such time has expired, it shall be made by motion with
such notice as the lower court shall deem appropriate." Mass.
R. A. P. 4 (c).
                                                                   6


reviewed the trial record, and (iv) before leaving for Thailand,

he had recommended to the defendants and defendants' trial

counsel that the defendants appeal.    He states, however, that he

"had a good faith belief and understanding that [the

defendants'] trial counsel would file the Notice of Appeal" in

his absence.6    He does not set forth the basis for his "good

faith belief."    Appellate counsel further avers that he

"believe[d]" the defendants' trial counsel, who he "believe[d]"

was unaware of his travel plans, "had a good faith belief and

understanding" that he (appellate counsel) would file the notice

of appeal.   Again, the affidavit sets forth no basis for this

"good faith belief."    Notably, the defendants' trial counsel,

who was the only attorney who had entered an appearance for the

defendants in Superior Court at the time the deadline to file

the notice of appeal lapsed, provided no affidavit.

Furthermore, the record includes an affidavit from Pierce's

counsel, appending copies of text messages between him and the

defendants' trial counsel in which Pierce's counsel asks whether




     6 Implicit in this statement is the fact that appellate
counsel knew of the deadline for filing the notice of appeal,
and knew that the deadline would fall during his previously
scheduled vacation. Appellate counsel had been retained in
December 2017 by the defendants' insurer to review the trial
proceedings to determine whether there was a basis for an
appeal. Sometime in January 2018, he relayed his opinion that
there was a meritorious basis for an appeal to the defendants'
trial counsel and the insurer.
                                                                        7


the defendants intend to appeal.       In response, on March 19, 2018

(four days after the deadline for filing the notice of appeal),

the defendants' trial counsel states, "[I] know you[']re waiting

on [an] answer from me, . . . [I]'m in court all day and our

office is waiting to get information from the [defendants']

insurer.    As soon as I can answer your question I will get it to

you."

       This court's decision in Shaev, 66 Mass. App. Ct. at 911-

912, is controlling.        In Shaev, one of the plaintiff's lawyers

-- a partner at the firm serving as local counsel in the matter

-- believed that another of the plaintiff's lawyers -- an

associate at the same firm -- would notify lead counsel located

in New York of the final judgment dismissing the action.        Id. at

911.    The associate, in turn, believed the partner would notify

lead counsel.   Id.    Because of this "miscommunication," lead

counsel was not notified of the judgment dismissing the action.

Id.    When the error was realized, the plaintiff promptly filed a

motion under Mass. R. A. P. 4 (c) to permit late filing of the

notice of appeal.     Id.    The Superior Court judge allowed the

motion on the ground that the matter was "important," "the legal

issues were significant and debatable," and "the client should

not suffer the consequences of the lawyer's neglect."        Id.

       We reversed, holding that the factors considered by the

judge were "simply not factors that are relevant to an analysis
                                                                    8


whether the neglect involved was excusable," and that "excusable

neglect is meant to apply to circumstances that are unique or

extraordinary, not to any 'garden-variety oversight.'"     Shaev,

66 Mass. App. Ct. at 911, quoting Feltch v. General Rental Co.,

383 Mass. 603, 613-614 (1981).   "Excusable neglect . . . is

meant to take care of emergency situations only."   BJ's

Wholesale Club, Inc. v. City Council of Fitchburg, 52 Mass. App.

Ct. 585, 587-588 (2001), quoting Feltch, supra.

    As in Shaev, 66 Mass. App. Ct. at 911, and BJ's Wholesale

Club, Inc., 52 Mass. App. Ct. at 588, the record here does not

present a situation that is "unique or extraordinary" as

required under Mass. R. A. P. 4 (c).   Compare Eyster v.

Pechenik, 71 Mass. App. Ct. 773, 782 (2008) ("good cause" for

failure to timely appeal where register failed timely to docket

order and send notice to parties).   Significantly, the record is

devoid of any explanation for appellate counsel's belief that

trial counsel would file the notice of appeal, and there is no

explanation to support trial counsel's belief that appellate

counsel would file the notice of appeal.   There is no affidavit

from trial counsel; yet, there is a suggestion in trial

counsel's correspondence with Pierce's counsel that the

defendants (or their insurer) failed to direct the filing of the

notice of appeal, despite being advised by appellate counsel

that he believed the appeal was warranted long before the
                                                                    9


deadline for filing the notice, and despite inquiries from

Pierce's counsel as to whether the defendants intended to

appeal.7   At best, the record shows the type of miscommunication

that Shaev, supra, held to be a "garden-variety oversight" that

is insufficient to warrant a finding of excusable neglect.8,9

     Conclusion.   The order allowing the motion to extend the

time to file a notice of appeal is reversed, and the appeal is

dismissed.

                                    So ordered.


     7 The defendants purport to distinguish Shaev on the ground
that it involved a breakdown in "intramural communication," 66
Mass. App. Ct. at 912, whereas here the two lawyers were at
different firms. In the absence of any explanation whatsoever
as to how, if at all, the fact that the lawyers here were at
different firms affected their purported "good faith"
miscommunication, such a distinction is unavailing.

     8 Even if the appeal were timely, see generally Roch v.
Mollica, 481 Mass. 164, 165 n.2 (2019), we would not alter the
judgment in favor of Pierce because none of the issues raised by
the defendants warrant a remand. We agree with the judge that
the defendants' evidence, which did not contradict or even
address Pierce's rationale for backing out of the trailer in the
manner that he did, did not warrant a comparative negligence
instruction. See Shahzade v. C.J. Mabardy, Inc., 411 Mass. 788,
795-796 (1992). Moreover, the defendants waived objection to
the judge's decision to not give an instruction on mitigation,
see Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974), and the judge
did not abuse his discretion in permitting evidence of the
defendants' postaccident repairs to show the defendants'
practice of repairing the dock plate as needed. See Canavan's
Case, 432 Mass. 304, 311 (2000). In light of the evidence
presented by Pierce and the testimony supporting the damages
award, none of the other arguments raised has merit.

     9 Pierce's request for appellate counsel fees and costs is
denied. See Yorke Mgt. v. Castro, 406 Mass. 17, 18-19 (1989).
