CHRISTOPHER KANAGA & Another v. SHELDON MANUEL.

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
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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
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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.
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