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Howard v. Boston Water and Sewer Commission

Appeals Court of Massachusetts, Suffolk

September 19, 2019

STANLEY D. HOWARD
v.
BOSTON WATER AND SEWER COMMISSION & others.[1], [2]

          Heard: May 7, 2019.

          Civil action commenced in the Central Division of the Boston Municipal Court Department on June 24, 2016.

         A motion to dismiss was heard by Robert J. McKenna, Jr., J.

         A motion to reinstate an appeal was heard by Wendlandt, J., in the Appeals Court.

          Stanley D. Howard, pro se.

          Present: Vuono, Massing, & Ditkoff, JJ.

          DITKOFF, J.

         The plaintiff, Stanley D. Howard, appeals from an order of a single justice of this court denying his motion to reinstate his appeal from a decision of the Appellate Division of the Boston Municipal Court. We articulate the standard for deciding a motion to vacate a dismissal or to reinstate an appeal in a civil case and conclude that the single justice acted within her discretion in determining that the plaintiff failed to make the necessary showing. Accordingly, we affirm the order denying the plaintiff's motion.

         1. Background.

         The plaintiff resides in a single-family home in the city of Boston, which is owned by a trust of which the plaintiff is one of the beneficiaries. In March 2015, the Boston Water and Sewer Commission (commission) sent a notice to the trust that it owed $1,890.64 for water usage and that water service would be shut off if the bill was not paid. The trust did not pay, and the commission shut off the water on May 13, 2015.

         On May 28, 2015, the plaintiff sought an injunction against the commission in the Housing Court. At a hearing on June 2, 2015, the trustee of the trust was added as a party defendant, and all parties entered into a settlement agreement under which water service was restored pursuant to a payment schedule that would eventually satisfy the unpaid balance.[3]

         Although he had signed the agreement, the plaintiff wanted to be compensated for the temporary deprivation of water service. He therefore amended his complaint (five times), alleged various claims under 42 U.S.C. § 1983, requested a declaratory judgment, and sought damages and other relief. On January 11, 2016, a judge of the Housing Court dismissed the plaintiff's claim for declaratory judgment as moot and dismissed the remaining counts for failure to state a claim upon which relief may be granted. The plaintiff did not appeal.[4]

         On June 24, 2016, the plaintiff filed a lawsuit in Boston Municipal Court against the commission, again seeking relief for the temporary deprivation of water service. On August 22, 2016, a Boston Municipal Court judge dismissed the complaint. The plaintiff appealed to the Appellate Division of the Boston Municipal Court pursuant to G. L. c. 261, § 27D. On January 29, 2018, a panel of the Appellate Division concluded that the complaint was properly dismissed on the basis of claim preclusion and affirmed the order of dismissal.

         The proceedings in our court were complicated by a dispute -– never finally resolved -– about the timeliness of the plaintiff's claim of appeal from the Appellate Division.[5] Perhaps because of that dispute, the plaintiff failed to file a brief by the due date of June 4, 2018.[6] On June 15, 2018, the clerk issued a notice preceding dismissal pursuant to our Standing Order Concerning Dismissal of Appeals and Reports in All Cases for Lack of Prosecution (standing order). The plaintiff promptly filed a motion to extend the time to file a brief, but without stating a proposed new due date, citing his difficulties in obtaining a transcript of the proceedings in the civil ...


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