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
23-P-575
TOWN OF EASTON & another 1
vs.
EASTON MHC, LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Defendant Easton MHC, LLC (EMHC), appeals from a Superior
Court judge's order, entered March 27, 2023, that (1) struck
EMHC's appeal of an interlocutory order authorizing the sale of
Easton Mobile Home Park; and (2) required EMHC to post an appeal
bond, in the event that EMHC chose to appeal from entry of a
final judgment, in the amount of $2,000,000. We affirm.
Background. We summarize the relevant procedural history. 2
On March 16, 2018, the Town of Easton and the Town of Easton
Rent Control Board filed a civil action against EMHC seeking,
inter alia, the appointment of a receiver for Easton Mobile Home
Park to address the park's environmental health, safety, and
1 Town of Easton Rent Control Board.
2Our review of the claims is hampered somewhat by the incomplete record provided on appeal. infrastructure issues. On January 2, 2020, a Superior Court
judge appointed a receiver to determine the economic status of
the park, manage and operate the park, and determine how to
resolve the park's myriad issues including the economic
feasibility of the continued operation of the park. The
receiver determined that selling the park was the best way to
address the park's "operational and infrastructure issues."
Following the court's establishment of bid procedures for the
sale, an auction was held on April 5, 2022, at which Crown
Communities LLC (Crown) "was the high bidder, extending an
increased cash payment offer of $705,000.00 and [an]
infrastructure repair commitment." On June 15, 2022, a Superior
Court judge issued an order authorizing the receiver to sell the
park pursuant to the asset purchase agreement between Crown and
the receiver. 3
On July 5, 2022, EMHC filed a notice of appeal challenging
the order authorizing the sale, as well as an emergency motion
3 Following the auction, on May 20, 2022, counsel for interested party Easton Mobile Homeowners Association, Inc., notified the receiver that it was exercising its right of first refusal to purchase the property pursuant to G. L. c. 140, § 32R. However, a Superior Court judge determined that the Homeowners Association "ha[d] not successfully exercised its right of first refusal" under the statute and ordered the receiver to effectuate the asset purchase agreement with Crown.
2 to stay the order. 4 On February 9, 2023, the receiver filed a
motion to require EMHC to post a bond to pursue the appeal. On
March 9, 2023, a hearing was held on the bond request. On March
27, 2023, 5 a Superior Court judge issued a memorandum and order
striking EMHC's July 5, 2022, appeal of the sale order because
it "was never addressed nor perfected," and requiring EMHC to
post a $2,000,000 bond should EMHC "appeal from the entry of
judgment." In issuing the bond order, the court explained that:
"The [mobile home] park is in dire need of repairs to vital infrastructure . . . which affect the health and safety of the park residents as well as the general community. The repairs are costly, approximated at two million dollars. They are also necessary to achieve compliance with regulatory orders issued by town commissions and boards. Additionally, where the issue has arisen, the relative merits, or lack thereof, of the previously filed appeals and now a contemplated appeal have been reviewed, at least preliminary, unfavorably. . . . If the infrastructure systems fail and the sale does not go through, the
4 On July 15, 2022, Easton Mobile Homeowners Association, Inc., filed a petition for interlocutory review of the June 15, order authorizing the sale. On July 21, 2022, a single justice of this court denied the petition "on the grounds that a review of the record reveals no clear error of law or abuse of discretion." To the extent that EMHC alleges that an error in the single justice's order caused confusion that precluded EMHC from perfecting its July 5, 2022, appeal, we disagree. As the judge noted at the March 9, 2023, bond hearing, discussed infra, this mistake does not change the fact that EMHC did not "docket[] the appeal timely" and made no effort to perfect its appeal.
5 At the March 9, 2023, hearing, counsel for EMHC represented that EMHC filed a notice of appeal "which has been kind of hanging out there I guess if you will," but that the appeal had not been docketed in the Appeals Court. He later represented at the same hearing that EMHC had filed "an interlocutory appeal on an order to sell the park."
3 homeowners bear the risk and expense associated with repairs, and if unable to do so, the park faces closure, displacing residents."
For these reasons, the court determined that the circumstances
warranted "the exercise of equitable discretion . . . to require
the posting of an appeal bond in the requested amount of two
million dollars." The court also directed that "final judgment
in favor of the [p]laintiffs on their complaint for equitable
relief" be entered, and judgment entered accordingly on March
28, 2023.
On April 11, 2023, EMHC filed a notice of appeal of the
Superior Court's March 27, 2023, order. EMHC challenges the
court's decision to strike its July 5, 2022, appeal and the
amount of the appeal bond. 6
Discussion. 1. Appeal dismissal. EMHC argues that the
Superior Court abused its discretion in striking its July 5,
2022, appeal. This claim is without merit. "[I]n the appellate
review of a decision to dismiss an appeal, '[w]e apply the abuse
of discretion standard to determine whether the judge was
warranted in dismissing the appeal.'" Scheuer v. Mahoney, 80
6 EMHC did not notice an appeal from the final judgment. This being the case, the judgment is not before us. See DeLucia v. Kfoury, 93 Mass. App. Ct. 166, 170 (2018) ("timely notice of appeal is a jurisdictional prerequisite to our authority to consider any matter on appeal").
4 Mass. App. Ct. 704, 708 (2011), quoting Spivey v. Neitlich, 59
Mass. App. Ct. 742, 744 (2003).
"The appellate rules 'put the responsibility for expediting
the appeal squarely on the appellant.'" Neuwirth v. Neuwirth,
85 Mass. App. Ct. 248, 256-257 (2014), quoting Mailer v. Mailer,
387 Mass. 401, 407 (1982). "[T]he initial filing of a notice of
appeal is only a preliminary 'foot in the door.'" Crystal
Constr. Corp. v. Hartigan, 56 Mass. App. Ct. 324, 330 (2002).
Once a notice of appeal is filed, it is the appellant's burden
"to pursue his appeal, and to provide an adequate record for his
appeal" (quotation omitted). Scheuer, 80 Mass. App. Ct. at 708.
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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
23-P-575
TOWN OF EASTON & another 1
vs.
EASTON MHC, LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Defendant Easton MHC, LLC (EMHC), appeals from a Superior
Court judge's order, entered March 27, 2023, that (1) struck
EMHC's appeal of an interlocutory order authorizing the sale of
Easton Mobile Home Park; and (2) required EMHC to post an appeal
bond, in the event that EMHC chose to appeal from entry of a
final judgment, in the amount of $2,000,000. We affirm.
Background. We summarize the relevant procedural history. 2
On March 16, 2018, the Town of Easton and the Town of Easton
Rent Control Board filed a civil action against EMHC seeking,
inter alia, the appointment of a receiver for Easton Mobile Home
Park to address the park's environmental health, safety, and
1 Town of Easton Rent Control Board.
2Our review of the claims is hampered somewhat by the incomplete record provided on appeal. infrastructure issues. On January 2, 2020, a Superior Court
judge appointed a receiver to determine the economic status of
the park, manage and operate the park, and determine how to
resolve the park's myriad issues including the economic
feasibility of the continued operation of the park. The
receiver determined that selling the park was the best way to
address the park's "operational and infrastructure issues."
Following the court's establishment of bid procedures for the
sale, an auction was held on April 5, 2022, at which Crown
Communities LLC (Crown) "was the high bidder, extending an
increased cash payment offer of $705,000.00 and [an]
infrastructure repair commitment." On June 15, 2022, a Superior
Court judge issued an order authorizing the receiver to sell the
park pursuant to the asset purchase agreement between Crown and
the receiver. 3
On July 5, 2022, EMHC filed a notice of appeal challenging
the order authorizing the sale, as well as an emergency motion
3 Following the auction, on May 20, 2022, counsel for interested party Easton Mobile Homeowners Association, Inc., notified the receiver that it was exercising its right of first refusal to purchase the property pursuant to G. L. c. 140, § 32R. However, a Superior Court judge determined that the Homeowners Association "ha[d] not successfully exercised its right of first refusal" under the statute and ordered the receiver to effectuate the asset purchase agreement with Crown.
2 to stay the order. 4 On February 9, 2023, the receiver filed a
motion to require EMHC to post a bond to pursue the appeal. On
March 9, 2023, a hearing was held on the bond request. On March
27, 2023, 5 a Superior Court judge issued a memorandum and order
striking EMHC's July 5, 2022, appeal of the sale order because
it "was never addressed nor perfected," and requiring EMHC to
post a $2,000,000 bond should EMHC "appeal from the entry of
judgment." In issuing the bond order, the court explained that:
"The [mobile home] park is in dire need of repairs to vital infrastructure . . . which affect the health and safety of the park residents as well as the general community. The repairs are costly, approximated at two million dollars. They are also necessary to achieve compliance with regulatory orders issued by town commissions and boards. Additionally, where the issue has arisen, the relative merits, or lack thereof, of the previously filed appeals and now a contemplated appeal have been reviewed, at least preliminary, unfavorably. . . . If the infrastructure systems fail and the sale does not go through, the
4 On July 15, 2022, Easton Mobile Homeowners Association, Inc., filed a petition for interlocutory review of the June 15, order authorizing the sale. On July 21, 2022, a single justice of this court denied the petition "on the grounds that a review of the record reveals no clear error of law or abuse of discretion." To the extent that EMHC alleges that an error in the single justice's order caused confusion that precluded EMHC from perfecting its July 5, 2022, appeal, we disagree. As the judge noted at the March 9, 2023, bond hearing, discussed infra, this mistake does not change the fact that EMHC did not "docket[] the appeal timely" and made no effort to perfect its appeal.
5 At the March 9, 2023, hearing, counsel for EMHC represented that EMHC filed a notice of appeal "which has been kind of hanging out there I guess if you will," but that the appeal had not been docketed in the Appeals Court. He later represented at the same hearing that EMHC had filed "an interlocutory appeal on an order to sell the park."
3 homeowners bear the risk and expense associated with repairs, and if unable to do so, the park faces closure, displacing residents."
For these reasons, the court determined that the circumstances
warranted "the exercise of equitable discretion . . . to require
the posting of an appeal bond in the requested amount of two
million dollars." The court also directed that "final judgment
in favor of the [p]laintiffs on their complaint for equitable
relief" be entered, and judgment entered accordingly on March
28, 2023.
On April 11, 2023, EMHC filed a notice of appeal of the
Superior Court's March 27, 2023, order. EMHC challenges the
court's decision to strike its July 5, 2022, appeal and the
amount of the appeal bond. 6
Discussion. 1. Appeal dismissal. EMHC argues that the
Superior Court abused its discretion in striking its July 5,
2022, appeal. This claim is without merit. "[I]n the appellate
review of a decision to dismiss an appeal, '[w]e apply the abuse
of discretion standard to determine whether the judge was
warranted in dismissing the appeal.'" Scheuer v. Mahoney, 80
6 EMHC did not notice an appeal from the final judgment. This being the case, the judgment is not before us. See DeLucia v. Kfoury, 93 Mass. App. Ct. 166, 170 (2018) ("timely notice of appeal is a jurisdictional prerequisite to our authority to consider any matter on appeal").
4 Mass. App. Ct. 704, 708 (2011), quoting Spivey v. Neitlich, 59
Mass. App. Ct. 742, 744 (2003).
"The appellate rules 'put the responsibility for expediting
the appeal squarely on the appellant.'" Neuwirth v. Neuwirth,
85 Mass. App. Ct. 248, 256-257 (2014), quoting Mailer v. Mailer,
387 Mass. 401, 407 (1982). "[T]he initial filing of a notice of
appeal is only a preliminary 'foot in the door.'" Crystal
Constr. Corp. v. Hartigan, 56 Mass. App. Ct. 324, 330 (2002).
Once a notice of appeal is filed, it is the appellant's burden
"to pursue his appeal, and to provide an adequate record for his
appeal" (quotation omitted). Scheuer, 80 Mass. App. Ct. at 708.
Rule 9 (d) (1) of the Massachusetts Rules of Appellate
Procedure, as appearing in 481 Mass. 1615 (2019), states that an
appellant shall "perform any act reasonably necessary to enable
the clerk to assemble the record." See Adoption of Simone, 427
Mass. 34, 45 (1998) (construing former rule). Furthermore, rule
8 (b) (1) of the Massachusetts Rules of Appellate Procedure, as
appearing in 481 Mass. 1611 (2019), "enumerates actions the
appellant needs to take if he needs any part of the electronic
recording of the lower court proceeding to be transcribed and
assembled for his appeal." See Adoption of Simone, supra
(construing former rule). In Adoption of Simone, the Supreme
Judicial Court discussed an appellant's failure to comply with
the Appellate Rules:
5 "The [appellant] repeatedly failed to take the steps outlined in [former] rule 8 (b) (3) [now rule 8 (b) (1)] in a timely manner. Consequently, a trial transcript was not ready. . . . The [appellant] offers no justification or explanation for the delay. . . . The judge's dismissal of the . . . appeal for the reason of her failure to comply with [former] rule 9 (c) (1) [now rule 9 (d) (1)] was clearly warranted."
Adoption of Simone, 427 Mass. at 45. If an appellant fails to
perfect its appeal, a trial court has authority to dismiss the
appeal, Mass. R. A. P. 10 (c), as appearing in 481 Mass. 1618
(2019), regardless of whether a motion to dismiss the appeal was
brought. See State Realty Co. of Boston, Inc. v. MacNeil Bros.
Co., 358 Mass. 374, 379 (1970).
Here, EMHC's July 5, 2022 appeal "was never addressed nor
perfected." While the docket indicates that transcripts were
ordered pursuant to Mass. R. A. P. 8 (b) (1), there is no
indication that the Superior Court clerk received the
transcripts or that the record was assembled. Instead, the
docket is silent concerning EMHC's July 5 appeal for five months
until the receiver moved to set the appeal bond on February 9,
2023. See Adoption of Simone, 427 Mass. at 45. Notably, EMHC
points to nothing in the record that suggests it did anything to
prosecute or perfect its interlocutory appeal, and thus we
cannot say that the judge abused his discretion in striking the
appeal. See id.
6 2. Bond amount. 7 EMHC also contends that the $2,000,000
appeal bond is punitive and is not supported by the facts of the
case. We disagree. "Where a trial judge is authorized to
condition relief upon the posting of a bond, the amount of the
bond is a matter committed to his discretion." Burger Chef
Sys., Inc. v. Servfast of Brockton, Inc., 393 Mass. 287, 291
(1984). "'[A]ll aspects of the case and of the respective
interests of the parties, appropriate for the consideration of a
court of equity in granting or denying discretionary relief, may
be taken into account . . .' in setting the amount to be posted.
Id., quoting Damaskos v. Board of Appeal of Boston, 359 Mass.
55, 64 n.9 (1971). An appellate court will reverse a
discretionary decision of a lower court only where it determines
that the lower court "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" (quotation
and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014).
This "is not a case where the bond is set at an amount far
in excess of that to which the plaintiff seems reasonably
entitled." Burger Chef Sys., Inc., 393 Mass. at 291 n.7. Here,
the judge's March 27, 2023 memorandum and order reflects
7 EMHC only challenges the bond amount on appeal, not the court's authority to set the bond.
7 appropriate consideration of the "aspects of the case" and "the
respective interests of the parties" (quotation omitted). Id.
at 291. Specifically, the judge discussed the conditions of the
mobile home park and considered the estimated repair costs. He
also noted the risks that a delay in effectuating the sale posed
to the park residents. Finally, the judge emphasized that EMHC
"had and availed [itself] of the opportunity to state
[its] . . . positions . . . [and its] oppositions were
determined to have little merit." Given the record before us,
the judge's decision to set a $2,000,000 appeal bond does not
"fall[] outside the range of reasonable alternatives." 8 L.L.,
470 Mass. at 185 n.27. Thus, the judge acted within his
discretion. 9
Conclusion. For the foregoing reasons, we affirm the
Superior Court's order striking EMHC's July 5, 2022 notice of
8 Counsel for EMHC acknowledged at oral argument that "the purchase and sale agreement says . . . it's probably a couple million dollars to [repair the park] . . . is it off the mark? Probably not."
9 The only authority cited by EMHC to support its claim that the appeal bond is punitive, Bank of N.Y. Mellon v. King, 485 Mass. 37 (2020), is inapposite. Bank of N.Y. Mellon analyzes the appeal bond provisions in the summary process statute; it does not discuss appeal bonds in general or those that are issued pursuant to equity principles.
8 appeal and setting the appeal bond at $2,000,000. 10
Order entered March 27, 2023, striking notice of appeal and setting appeal bond, affirmed.
By the Court (Meade, Neyman & Hand, JJ. 11),
Assistant Clerk
Entered: June 10, 2024.
10Our decision is limited to the unique facts and procedural posture of the present case.
11 The panelists are listed in order of seniority.