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-652
LORAINE R. GURNEY & others1
vs.
BERNARD G. SYKES, THIRD,2 & others.3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants appeal from a Superior Court judge's denial
of their motion filed pursuant to Mass. R. A. P. 4 (c), as
appearing in 481 Mass. 1606 (2019), for extension of time for
filing a notice of appeal. We discern no abuse of discretion in
the judge's determination and thus affirm.
Background. In 2018, the plaintiffs filed this action
against the defendants. On April 6, 2021, a Superior Court
judge issued a decision and order allowing summary judgment for
1 Austin W. Gurney and Amiel Z. Weinstock, in his capacity as
trustee of the First Amendment and Restatement to the Loraine R.
and Austin W. Gurney Trust dated May 3, 2016.
2 Individually and in his capacity as president of Palm Beach
Yachting, Inc., manager of 631 Atrium Condominium 401 LLC, and
trustee of the Kendall G. Russell 1981 Trust and Declaration of
Trust establishing the Loraine R. and Austin W. Gurney Trust
dated May 3, 2016.
3 Palm Beach Yachting, Inc. and 631 Atrium Condominium 401 LLC.
the plaintiffs as to certain claims.4 On March 10, 2022, a
second Superior Court judge (second judge) entered judgment for
the plaintiffs.5 The deadline under rule 4 (a) (1) for filing a
notice of appeal was within thirty days of the date of entry of
judgment, which was April 11, 2022. The defendants did not file
the notice of appeal within that time frame.
Instead, on April 12, 2022, the defendants served on the
plaintiffs a "Motion for Extension of Time for Filing Notice of
Appeal" accompanied by defense counsel's supporting affidavit.
The affidavit, which tracks the language of the motion, avers
that on April 6, 2022, defense counsel "became sick at work, and
was required to go home early"; that counsel tested positive for
COVID-19 on April 7, 2022; that he "remained in quarantine at
home since that time"; and that, "[a]s a result of [his] illness
and unexpected confinement, [he] neglected to file a Notice of
Appeal before the deadline yesterday." The plaintiffs filed an
opposition to the motion arguing, inter alia, that the
defendants failed to meet the required "excusable neglect"
standard under rule 4 (c). They further contended that one of
the plaintiffs, Loraine Gurney, suffered from various health
problems, she required full time "health aides," and her
4 On January 13, 2022, the parties filed a stipulation of
dismissal as to the remaining claims.
5 The judgment, including prejudgment interest, is approximately
$1.5 million.
2
"suffering will continue indefinitely" if the defendants were
allowed to delay payment of "the funds [defendant] Sykes
wrongfully took from them." On May 11, 2022, the second judge
denied the motion in a written decision and order. The
defendants now appeal therefrom.
Discussion. Rule 4 (c) provides, in relevant part, that
"[u]pon a showing of excusable neglect, the lower court may
extend the time for filing the notice of appeal . . . for a
period not to exceed 30 days from the expiration of the time
otherwise prescribed by this rule." Thus, this case hinges on
whether the defendants showed that the missed deadline was the
result of excusable neglect.
The standard for demonstrating excusable neglect in civil
cases is "demanding." Commonwealth v. Trussell, 68 Mass. App.
Ct. 452, 455 (2007). It "requires circumstances that are unique
or extraordinary" and "is not meant to cover the usual excuse
that a lawyer is too busy, which can be used, perhaps
truthfully, in almost every case. . . . It is [meant] to take
care of emergency situations only" (quotations and citations
omitted). Id. Relief is not extended "to cover any kind of
garden-variety oversight" (citation omitted). Id.6
6 In the case of motions for leave to file an appeal late, some
of our cases suggest that in addition to showing excusable
neglect or "good cause," Mass. R. A. P. 14 (b), as appearing in
481 Mass. 1626 (2019), the moving party is also required to make
3
Finally, "[d]ecisions on requests for extension of time are
reviewed for an abuse of discretion." Lawrence Sav. Bank v.
Garabedian, 49 Mass. App. Ct. 157, 161 (2000) (Garabedian),
citing Tisei v. Building Inspector of Marlborough, 3 Mass. App.
Ct. 377, 378 (1975), and Standard Register Co. v. Bolton-
Emerson, Inc., 35 Mass. App. Ct. 570, 573-574 (1993). "[A]
judge's discretionary decision constitutes an abuse of
discretion where we conclude the judge made a clear error of
judgment in weighing the factors relevant to the decision, such
that the decision falls outside the range of reasonable
alternatives" (quotations and citations omitted). L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
With these standards in mind, we turn to the defendants'
claim. As discussed supra, defense counsel's argument rested on
his averment that he felt ill, tested positive for COVID-19,
remained in quarantine at home, and consequently "neglected to
a showing that meritorious issues exist on appeal. See, e.g.,
Tisei v. Building Inspector of Marlborough, 3 Mass. App. Ct.
377, 379 (1975). Here, the defendants did not make any such
proffer before the second judge or on appeal. Indeed, neither
party references this requirement in their briefing. Where we
decide that the second judge did not abuse his discretion in
denying the motion on other grounds, see infra, we need not
decide whether the defendants were obligated to make this
showing or whether this rule applies to motions filed under rule
4 (c). See Bernard v. United Brands Co., 27 Mass. App. Ct. 415,
418 n.8 (1989) (after comparing standards under rules 4 [c] and
14 [b], court noted that "[t]he merit of the proposed appeal may
be a subject of inquiry under 14 [b]").
4
file a Notice of Appeal before the deadline yesterday."
Conspicuously absent from the affidavit is any representation
that defense counsel was aware of the deadline, but too ill to
work. He did not aver -- and does not aver on appeal7 -- that
his COVID-19 status rendered him unable to file the notice of
appeal, or incapable of working from home, contacting his law
firm for assistance, or communicating with the court. To the
contrary, he acknowledged that he simply "neglected" to make the
filing. He does not contend that his situation constituted a
unique or extraordinary circumstance and does not assert that
the present situation amounted to an emergency within the
meaning of our precedent. See Trussell, 68 Mass. App. Ct. at
455. Under such circumstances, we cannot say that the second
judge's decision fell outside the range of reasonable
alternatives such that he abused his discretion in denying the
7 We acknowledge defense counsel's candor in this regard.
5
motion. See Garabedian, 49 Mass. App. Ct. at 161.8 Accordingly,
we affirm the denial of the motion.9
So ordered.
By the Court (Milkey,
Neyman & Smyth, JJ.10),
Clerk
Entered: February 15, 2023.
8 In his decision denying the motion, the second judge noted that
the defendants had ample time to file the notice of appeal prior
to counsel falling ill. We reject that portion of his
determination. A thirty-day filing deadline contemplates a
party's right to use all thirty days. Although perhaps prudent
to act well in advance of a given deadline, counsel does not act
improperly by using the time allotted by rule. That
notwithstanding, the second judge's decision sets forth a
careful summary of the applicable standards, and it is clear
that he determined that defense counsel's failure to meet the
deadline stemmed from "garden-variety oversight" and did not
constitute "unique or extraordinary" circumstances that amounted
to excusable neglect. See Trussell, 68 Mass. App. Ct. at 455.
9 We do not reach the question whether the defendants could
obtain an extension of time to file a late notice of appeal
pursuant to rule 14 (b), as there is no such request currently
before the court.
10 The panelists are listed in order of seniority.
6
LORAINE R. GURNEY & Others v. BERNARD G. SYKES, THIRD, & Others.
Combined Opinion