Opinion
14-P-1519
06-11-2015
PAUL A. GARGANO v. HUMMOCK, LLC, & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Paul A. Gargano, appeals from the denial of his motion to reconsider the issuing of a postjudgment execution in favor of the defendant, Hummock, LLC. Gargano previously appealed from the underlying judgment finding him liable for breach of contract, which we dismissed pursuant to Appeals Court Standing Order 17A for failure to prosecute. (A.C. No. 13-P- 979) Execution subsequently issued at the request of Hummock, LLC.
An attorney indefinitely suspended from practice in the Commonwealth. See Matter of Gargano, 460 Mass. 1022 (2011).
Execution was not issued in favor of the other defendant.
Gargano failed to submit a brief in the earlier appeal. After having been entered in this court on June 24, 2013, the appeal was dismissed for failure to prosecute on October 11, 2013, and, after having been reinstated, again dismissed on November 26, 2013. After again being reinstated on December 2, 2013, the appeal was dismissed a third time on March 13, 2014, and a single justice of this court denied Gargano's latest motion to reinstate the appeal.
Because Gargano failed to prosecute his appeal of the judgment, those claims -- which he has attempted to bring again -- are not properly before us. See Campbell v. Howard, 5 Mass. 376, 379 (1809) (where appellant fails to prosecute his appeal, court may affirm judgment). An examination of his claims also reveals that they are meritless, and no discussion of them is required. Lolos v. Berlin, 338 Mass. 10, 14 (1958). As to the proper subject of this appeal, i.e., the order of execution, Gargano has not alleged any error of law or abuse of discretion by the judge in denying his motion to reconsider execution. Thus, any claims of error as to the execution are waived. See Commonwealth v. Petralia, 372 Mass. 452, 454-455 (1977) (claims not argued in brief are waived). See also Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Even if he had presented any issues for our review, they would be moot as the record shows that execution has already been fully satisfied.
"A frivolous appeal imposes costs not only upon the party forced to defend it, but also upon the public whose taxes supporting this court and its staff are wasted on frivolous appeals." Avery v. Steele, 414 Mass. 450, 456 (1993) (citation omitted). Given that his previous attempt to appeal these questions was dismissed, Gargano cannot have any reasonable expectation of reversal here. Love v. Pratt, 64 Mass. App. Ct. 454, 460 (2005) (Brown, J., concurring). As we did in Hug v. Gargano & Assocs., P.C., 76 Mass. App. Ct. 520, 529 (2010), we allow the defendants' request for attorney's fees and double costs. In accordance with Fabre v. Walton, 441 Mass. 9, 10-11 (2004), within fourteen days of the date of the rescript, the defendants may submit a petition for fees and costs, together with supporting materials. The plaintiff shall have fourteen days thereafter to respond.
Order denying motion to reconsider issuance of execution affirmed.
By the Court (Cypher, Meade & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 11, 2015.