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Massachusetts Appeals Court Summary Dispositions Pursuant to Rule 23.0 (formerly Rule 1:28)

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HRONNE DEPAULO vs. JORNAL NEGOCIO FECHADO, INC. & others.
5/9/2025
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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
24-P-66
HRONNE DEPAULO
vs.
JORNAL NEGOCIO FECHADO, INC. & others.
1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On March 3, 2022, following a jury-waived trial, a judge of
the Superior Court entered a judgment for the plaintiff, Hronne
DePaulo.
2
On March 29, 2022, twenty-six days later, defendant
Jehozadak Pereira filed an "emergency motion to vacate
judgment." That motion was denied on October 13, 2023. On
November 10, 2023, Pereira filed his notice of appeal, appealing
from both the judgment and the denial of the motion to vacate.
We affirm the denial of the motion to vacate but dismiss the
1
Jehozadak Pereira and The Brazilian Times.
2
It is our practice to spell a party's name as it is
spelled in the complaint.
2
appeal from the judgment without reaching the merits because it
is untimely.
Judgment. Generally, to appeal from a judgment, a party is
required to file a notice of appeal within thirty days of its
entry on the docket. See Piedra v. Mercy Hosp., Inc., 39 Mass.
App. Ct. 184, 186-187 (1995); Mass. R. A. P. 4 (a) (1), as
appearing in 481 Mass. 1606 (2019). "A timely notice of appeal
is a jurisdictional prerequisite to our authority to consider
any matter on appeal." DeLucia v. Kfoury, 93 Mass. App. Ct.
166, 170 (2018). The thirty-day period will be tolled if one of
the motions listed in rule 4 (a) (2) of the Massachusetts Rules
of Appellate Procedure is made or served in a timely manner.
See Piedra, supra at 187; Mass. R. A. P. 4 (a) (2). As
pertinent here, rule 4 (a) (2) (C) tolls the thirty-day deadline
until after the entry of an order disposing of the last
remaining motion "for relief from judgment under Rule 60(b)
. . . only if [that] motion is served within 10 days after entry
of judgment." Mass. R. A. P. 4 (a) (2) (c). See Piedra, supra.
Pereira's emergency motion did not suspend the thirty-day
deadline for filing the notice of appeal from the judgment.
3
The
motion was not filed until twenty-six days after the judgment
3
We further note that Pereira did not seek an enlargement
of time for filing the notice of appeal. See Piedra, 39 Mass.
App. Ct. at 187; Mass. R. A. P. 4 (c).
3
entered and was not served on DePaulo prior to filing.
4
Pereira
needed to serve the emergency motion to vacate within the ten-
day period as required by rule 4 (a) (2) (C) to properly toll
the deadline. Where an appeal is initiated by an untimely
notice of appeal and no motion to file the notice of appeal late
is presented to the Appeals Court, the untimely appeal must be
dismissed. See Kellerman v. Kellerman, 390 Mass. 1007, 1008
(1984). Thus, Pereira's appeal from the judgment is dismissed.
Motion to vacate. The notice of appeal was timely as to
the denial of the emergency motion to vacate. Pereira asserts
that the judge abused his discretion in denying this motion.
Specifically, Pereiera takes issue with the judge's explanation
for the denial, which was that the defendants "have not
identified any basis to vacate judgment under Mass. R. Civ. P.
60." Pereira claims that he mentioned two bases, namely,
excusable neglect and to accomplish justice.
"Rule 60(b)(1) of the Massachusetts Rules of Civil
Procedure authorizes the court to grant relief from judgment in
cases of 'mistake, inadvertence, surprise or excusable
neglect.'" Christian Book Distrib., Inc. v. Wallace, 53 Mass.
App. Ct. 905, 906 (2001), quoting Mass. R. Civ. P. 60 (b) (1),
4
The motion itself did not contain a certificate of
service, and DePaulo opposed the motion in part based on lack of
service prior to filing.
4
365 Mass. 828 (1974). "[E]xcusable neglect is meant to apply to
circumstances that are unique or extraordinary, not to any
garden-variety oversight" (quotation and citation omitted).
Pierce v. Hansen Eng'g & Mach. Co., Inc., 95 Mass. App. Ct. 713,
717 (2019). We review the denial of a Rule 60(b) motion such as
this for abuse of discretion. See Saade v. Wilmington Trust,
Nat'l Ass'n, 494 Mass. 1013, 1014 (2024).
Here, we discern no abuse of discretion. Pereira's motion
to vacate asserted that his trial counsel misadvised him
regarding the theories and strategies of his case. For example,
he claimed that counsel told him he did not need to appear in
court on the day of his trial and that he would "get a better
deal" if he did not put on any defense. However, the motion to
vacate lacked any compelling argument as to why Pereira's
judgment should be vacated. Pereira's assertions do not explain
how his outcome would have been better had he appeared in court.
Pereira's motion to vacate failed to explain how his counsel's
conduct was not strategic. As such, the motion's lack of
specificity was grounds for denial.
5
There was no abuse of
5
Pereira's reliance on rule 60 (b) (6), which is intended
to cover "extraordinary circumstances" (citation omitted), Owens
v. Mukendi, 448 Mass. 66, 71 (2006), is similarly unpersuasive.
Pereira has not identified any extraordinary circumstances here.
5
discretion and thus, we affirm the denial of the motion to
vacate.
Appeal from judgment
dismissed.
Order denying motion to
vacate affirmed.
By the Court (Massing,
Englander & D'Angelo, JJ. ),
6
Clerk
Entered: May 9, 2025.
6
The panelists are listed in order of seniority.