Scheuer v. Mahoney
80 Mass. App. Ct. 704
Mass. App. Ct.2011Background
- Mahoney appeals a Superior Court dismissal of her appeal from Scheuer's judgment awarding him damages for intentional interference and declaratory relief.
- Scheuer purchased two adjacent lots from the Handas, who had bought from Mahoney, the developer, in 1994.
- Mahoney claimed she held deed restrictions allowing her to enforce limitations on Scheuer's lots, including a conditional refusal, which Scheuer challenged and the court resolved in part in his favor.
- Mahoney filed Rule 9(c)(2) certifications in 2003 alleging transcripts; no action to obtain or file transcripts occurred for years, prompting a 2007 motion to dismiss for inexcusable neglect.
- A 2007 judge dismissed the appeal for neglect; Mahoney later sought to reinstate, and issues concerning transcript production continued through 2010.
- The appellate court affirmed the dismissal, holding Mahoney’s four-year inaction failed to show excusable neglect and that Rule 9(c)(2) required active steps to move the appeal along.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal under Rule 10(c) was proper | Mahoney contends she complied with 9(c)(2) and thus excusable neglect. | Scheuer argues Mahoney failed to move the appeal along and her neglect was excusable only if extraordinary. | Dismissal affirmed; neglect not excusable. |
| Whether Mahoney complied with Rule 9(c)(2) by certification alone | Certification alone satisfied 9(c)(2). | Action to move the appeal along required more than certification; delay persisted without progress. | Certification alone did not satisfy 9(c)(2) requirements; dismissals upheld. |
| What standard governs appellate dismissal for failure to prosecute | Appellate conduct should be weighed with leniency given delays by reporters. | Appellant bears responsibility to move the record forward; inexcusable neglect warranted dismissal. | Abuse of discretion standard applied; here, neglect found not excusable. |
Key Cases Cited
- Robinson v. Planning Bd. of Wayland, 23 Mass. App. Ct. 920 (1986) (appellant must move the appeal along beyond clerk requests)
- Ross v. Continental Resources, Inc., 73 Mass App. Ct. 497 (2009) (extensive efforts to obtain transcripts can defeat excusable neglect)
- Mailer v. Mailer, 387 Mass. 401 (1982) (excusable neglect requires extraordinary circumstances)
- Hawkins v. Hawkins, 397 Mass. 401 (1986) (appellant must show why failure to comply is not attributable to them)
- Spivey v. Neitlich, 59 Mass. App. Ct. 742 (2003) (abuse of discretion in dismissing appeal for failure to comply with Rule 9(c)/10(c))
- Mood v. Kilgore, 384 Mass. 459 (1981) (notice of appeal and full compliance required to preserve appeal)
- Aetna Cas. & Sur. Co. v. Continental Cas. Co., 413 Mass. 730 (1992) (compliance with appellate rules required for preservation of rights)