CHRISTOPHER KANAGA & Another v. SHELDON MANUEL.

• Court: Massachusetts Appeals Court
• Decided: May 4, 2023
• Docket: 21-P-1176
• Status: Unpublished

Opinion

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

21-P-1176

CHRISTOPHER KANAGA & another1

vs.

SHELDON MANUEL.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After judgment was entered against her in the Superior

Court, the defendant, Sheldon Manuel, filed a notice of appeal

on May 8, 2019 (merits appeal). On April 14, 2021, a judge

granted the plaintiffs' motion to dismiss the merits appeal for

failure to prosecute and for failure to comply with Mass. R. A.

P. 8, as appearing in 481 Mass. 1611 (2019), and Mass. R. A. P.

9 (d), as appearing in 481 Mass. 1615 (2019). On May 13, 2021,

Manuel filed a second notice of appeal (second appeal), this

time from the order dismissing her merits appeal. Subsequently,

the plaintiffs moved to dismiss the second appeal, again for

failure to prosecute and comply with appellate rules 8 and 9,

and on October 18, 2021, an order was entered dismissing the

1 Laraja and Kanaga, P.C. second appeal. Manuel then filed a third notice of appeal

(third appeal), this time from the order dismissing the second

appeal. That third appeal was docketed and, as a single justice

of this court stated in her order of March 7, 2022, is the only

matter now before us. We affirm the order dismissing the second

appeal.

Discussion. Pursuant to Mass. R. A. P. 8 (b) (1) (A), any

relevant transcripts must be ordered within fourteen days of the

filing of the notice of appeal. Pursuant to Mass. R. A. P. 9

(d) (2), within the same time period, the appellant must deliver

to the trial court either (A) the transcript or portions of the

transcript necessary for determination of the appellate issues,

or (B) a signed statement certifying that the appellant has

ordered the necessary portion of the transcript, or "(C) a

signed statement certifying that the appellant has not ordered

and does not intend to order the transcript or any portion

thereof." If the appellant fails to comply with rule 9 (d),

"the lower court may, on motion with notice by any appellee,

dismiss the appeal, but only upon a finding of inexcusable

neglect." Mass. R. A. P. 10 (c), as appearing in 481 Mass. 1618

(2019). We review an order dismissing an appeal under rule 10

for abuse of discretion. See Scheuer v. Mahoney, 80 Mass. App.

Ct. 704, 708 (2011).

2 The requirements of appellate rules 8 and 9 are not mere

technicalities. "Appellees, particularly, are entitled to the

progress of appeals with reasonable dispatch and to some

protection against purposeful stretching out of appellate

proceedings. When an appellant files a notice of appeal [s]he

must treat that step as something more than taking out an option

to appeal." Points E., Inc. v. City Council of Gloucester, 15

Mass. App. Ct. 722, 726 (1983).

Here, notwithstanding that some months earlier, her merits

appeal had been dismissed for failure to comply with rule 9 (d),

Manuel once again failed to comply with rule 9 (d) in

prosecuting her second appeal. Moreover, when the plaintiffs,

on June 2, 2021, served their motion to dismiss the second

appeal, Manuel did not respond by complying with the rule. Had

she done so at any time in the next four months, before October

of 2021, simply by filing a rule 9 (d) statement, her appeal

would have been reinstated. See Mass. R. A. P. 10 (c) ("If,

prior to the lower court's hearing such motion for noncompliance

with Rule 9 [d], the appellant shall have cured the

noncompliance, the appellant's compliance shall be deemed

timely").

In her trial court opposition to the motion to dismiss the

second appeal, Manuel claimed that her bankruptcy status and the

court's failure to act on an indigency application she had filed

3 prevented her from obtaining the transcripts related to the

merits appeal. She did not, however, address the matter at

hand: whether her failure to comply with rule 9 (d) in the

second appeal was due to any excusable neglect. Thus, in

granting the motion to dismiss the second appeal, the judge

noted that "the opposition does not establish unique or

extraordinary circumstances to support a finding of excusable

neglect."

Nevertheless, in this third appeal, Manuel again focuses on

similar arguments. She asserts that the judge should have

denied the second motion to dismiss because, before she filed

the suggestion of bankruptcy leading to a stay, she (1) had

ordered transcripts for the merits appeal (but could not pay for

them) and (2) had filed an affidavit of indigency (which could

not be acted on because of the stay). She also argues that she

had a "good chance of success" on her merits appeal. Nowhere

does she argue the only relevant issue: whether her failure to

comply with rule 9 (d) in the second appeal was the result of

any excusable neglect, or, more accurately, whether the judge

abused his discretion in finding no excusable neglect. We could

resolve this appeal simply by ruling that she has waived any

argument on that key issue. See Mass. R. A. P. 16 (a) (9) (A),

as appearing in 481 Mass. 1630 (2019) ("[t]he appellate court

4 need not pass upon questions or issues not argued in the

brief").

We have nevertheless reviewed the record, and we see no

good reason for Manuel's failure to comply with the appellate

rules related to the transcripts pertinent to the order

dismissing her second appeal. The bankruptcy stay had been

lifted well before she filed her second notice of appeal, and

she had had ample time to further pursue relief due to her

indigency status. She inexplicably did not comply with rule 9

after filing her second notice of appeal on May 13, 2021. "[I]t

would have been a simple matter for the appellant[] to have

cured [her] noncompliance by ordering a transcript, or, if [she]

intended to raise no issues requiring a transcript . . ., to say

so." Points E., Inc., 15 Mass. App. Ct. at 724. This is

particularly true here, where Manuel's merits appeal had just

recently been dismissed for failing to satisfy rule 9 (d) with

regard to the transcripts relevant to that appeal.

Finally, Manuel's likelihood of success on the underlying

merits would be relevant, if at all, only if her neglect were

excusable. See Howard v. Boston Water & Sewer Comm'n, 96 Mass.

App. Ct. 119, 123 (2019) (appellant seeking to vacate dismissal

of civil appeal must ordinarily show [1] delay due to excusable

neglect and [2] meritorious case on appeal). Here, the judge

found that Manuel's neglect was not excusable, and we see no

5 abuse of discretion in that determination. The second appeal

was therefore properly dismissed.2

Order dated October 18, 2021, dismissing appeal, affirmed.

By the Court (Neyman, Sacks & Hodgens, JJ.3),

Clerk

Entered: May 4, 2023.

2 We deny the plaintiffs' request for appellate attorney's fees and double costs.

3 The panelists are listed in order of seniority.