Pierce v. Hansen Engineering & Machinery Co.
Pierce v. Hansen Engineering & Machinery Co.
Opinion
*713
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 the notice of appeal, fails to meet the showing of "excusable neglect" required under Mass. R. A. P. 4 (c), as amended,
Background . The plaintiff, Edward R. Pierce, fell while maneuvering a pallet jack, on which he was carrying an 800-pound *714 freight, from his delivery truck over a dock plate and onto the loading dock of *814 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 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 thirty-day period for filing a notice of appeal pursuant to Mass. R. A. P. 4 (a), as amended,
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 *715 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 order denying a motion for new trial.
4
After the thirty-day deadline,
*815
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
,
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 reviewed the trial record, and (iv) before leaving for Thailand, he had recommended to the defendants and defendants' trial counsel that the defendants *716 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 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
,
We reversed, holding that the factors considered by the judge were "simply not factors that are relevant to an analysis 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
,
As in
Shaev
,
So ordered .
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,
The parties used the terms dock leveler and dock plate interchangeably.
"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).
"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).
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.
The defendants purport to distinguish
Shaev
on the ground that it involved a breakdown in "intramural communication,"
Even if the appeal were timely, see generally
Roch
v.
Mollica
,
Pierce's request for appellate counsel fees and costs is denied. See
Yorke Mgt
. v.
Castro
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.