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South Boston Elderly Residences, Inc. v. Moynahan

Appeals Court of Massachusetts, Suffolk

December 15, 2015

South Boston Elderly Residences, Inc.
v.
Gerald Moynahan

Argued: November 2, 2015.

Summary process. Complaint filed in the Boston Division of the Housing Court Department on February 4, 2013.

A motion to dismiss the appeal was heard by Jeffrey M. Winik, J.

A. Joseph Ross for the tenant.

W. Paul Needham for the landlord.

Present: Agnes, Sullivan, & Blake, JJ.

OPINION

Blake, J.

Following the entry of judgment in a summary process action in the Boston Division of the Housing Court Department, the defendant tenant, Gerald Moynahan, filed a notice of appeal from the judgment. More than one year later, the plaintiff landlord, South Boston Elderly Residences, Inc. (SBER), moved to dismiss the appeal, citing Moynahan's delay in filing the trial transcript with the court. The motion was allowed, and this appeal followed. We reverse.

1. Procedural background.

On October 28, 2013, Moynahan's notice of appeal relating to the underlying judgment was filed with the court. On November 25, 2013, Moynahan through counsel (counsel) ordered a copy of the recording of the trial, which the court received on December 2, 2013, and so notified counsel that day. On January 21, 2014, counsel retrieved the copy and sent it to be transcribed. A dispute arose between the transcriber

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and counsel as to who would file the transcript with the court. The transcriber ultimately refused to file the transcript, contrary to Mass.R.A.P. 8(b)(3)(iv), as appearing in 388 Mass. 1106 (1983). On February 18, 2014, the transcription was completed and delivered to counsel. Rather than filing the transcript when he received it from the transcriber, counsel decided to wait until after he recovered from a scheduled surgery to file it.[1] Counsel eventually filed the transcript with the court on December 12, 2014. On December 17, 2014, SBER filed a motion to dismiss the appeal for undue delay pursuant to Mass.R.A.P. 9(c), as amended, 417 Mass. 1601 (1994), and Mass.R.A.P. 10(c), as amended, 417 Mass. 1602 (1994). After a hearing, a judge allowed the motion, on the ground that counsel had committed inexcusable neglect by purposely delaying the filing of the transcript to control the timing of the appeal. Moynahan filed a timely notice of appeal from the order dismissing his appeal.

2. Discussion.

It is without question that the Rules of Appellate Procedure " put the responsibility for expediting the appeal squarely on the appellant." Mailer v. Mailer, 387 Mass. 401, 407, 439 N.E.2d 811 (1982). See Scheuer v. Mahoney, 80 Mass.App.Ct. 704, 709, 956 N.E.2d 231 (2011). Rule 9(c) outlines a civil appellant's duties in relation to assembly of the record on appeal, ...


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