Opinion
11-P-1087
04-27-2012
PHILIP K. MALOOF, executor, v. ELEANOR LETOURNEAU.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case is an appeal from the denial of a motion to enlarge the time for appeal filed by the executor of an estate (executor). We affirm.
Background. The underlying matter concerns the first and final account and judgment of the will of Lillian G. Asplund. Asplund was the last American survivor of the sinking of the Titanic. When she died, her will left the house in which she had lived along with its contents, subject to certain conditions not relevant to this case, to Eleanor Letourneau, her second cousin. At the time of Asplund's death, her home contained a desk or 'secretary,' within which were contained various items of Titanic memorabilia. The memorabilia included a watch and chain, two wedding rings, a passage ticket and various papers, a wallet, and some family photographs. During the initial probate of the will, the executor arranged for an appraiser to visit the home and value its contents. Although he did not itemize all of the photographs and the memorabilia, the appraiser valued the Titanic items at $1,002 and the total value of the household goods and personal effects at $3,012. On February 29, 2008, the first and final account was allowed, and judgment was entered. In April of 2008, Letourneau sold the Titanic memorabilia at auction in England for $235,000. Ten months later, on February 19, 2009, the executor filed a 'Motion to Reopen Judgment and First and Final Account,' seeking to revisit the valuation and ownership of the memorabilia. A nonevidentiary hearing was held on March 6. The Probate Court judge questioned the legal basis for the motion; if the Titanic memorabilia were 'contents' which passed to Letourneau under the will, the valuation would be irrelevant. Subsequently, the motion was denied.
On April 10, 2009, the executor timely filed a notice of appeal from the denial. The Probate Court did not serve the notice of appeal, as is required by Mass.R.A.P. 3(d), 365 Mass. 846 (1974). On April 23, a letter advising that no transcript would be sought was hand delivered to the register of probate. This letter was not served by the executor on opposing counsel as required by Mass.R.A.P. 13(b), 365 Mass. 854 (1974).
No notice of this appeal was served by the executor on opposing counsel. See Mass.R.Civ.P.5(a), as amended, 387 Mass. 1221 (1983) (requiring service of all 'notices') In light of our disposition, it is not necessary to decide whether rule 5 requires counsel, as well as the court, to serve the notice of appeal. Clearly, it is better practice to do so, since the appellee's obligations under the rules, as well as the right of cross appeal, are implicated.
It appears from the record that this letter was not docketed, although a date stamped copy of it is in the record, and both parties agree that it bears the date stamp of the court. The appeal then languished for twenty months. Lacking a transcript, and apparently unaware of the letter to the Probate Court, on December 9, 2010, the register of probate sent the executor a 'Notice of Intent to Dismiss Appeal,' pursuant to rule 30 of the General Rules of the Probate Court (2000), 'Dismissal of Abandoned Appeals.' On December 14 the executor filed a motion to enlarge time for appeal until March 1, 2011. Letourneau filed an opposition.
The executor offered no reason by way of affidavit for failing to serve the letter concerning the designation of the transcript on counsel for Letourneau, or for letting the appeal languish for twenty months without inquiry. He pointed out that it was the court's duty under Mass.R.A.P. 3(d) to serve the notice of appeal. He also argued that because the hearing on the motion to reopen was nonevidentiary, he had no obligation to order the transcript. Letourneau maintained that the transcript was necessary to understand the judge's implied findings and ruling on the underlying motion, and that that key issues had been narrowed or resolved by way of representations of counsel at the hearing, necessitating the transcript. The executor declined to order a transcript and did not designate any issues on appeal. There was a hearing in late December on the motion to enlarge, at which the executor was given additional time to respond. The motion was denied without a statement of reasons.
The executor was represented below by other counsel.
After this appeal was filed the executor served a letter on Letourneau stating he would not order the transcript, and Letourneau ultimately ordered the transcript for this appeal. See Mass.R.A.P. 8(b)(3)(iii), as appearing in 388 Mass. 1106 (1983) (outlining appellee's obligation to order transcript).
The executor filed a timely notice of appeal from the denial of the motion to enlarge time in which to appeal. He also filed a motion pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), to vacate the dismissal. It is these appeals that are currently before us.
Discussion. We review the denial of a motion to enlarge time for an abuse of discretion. Scheuer v. Mahoney, 80 Mass. App. Ct. 704, 708 (2011). Dorrance v. Zoning Bd. of Appeal of N. Attleborough, 7 Mass. App. Ct. 932 (1979).
'Courts have the inherent power to dismiss an action which the plaintiff has not prosecuted diligently. Anderson v. Sport Lounge, Inc., 27 Mass. App. Ct. 1208, 1209 (1989). That power is derived from the 'right and duty to keep the judicial system in efficient operation.' State Realty Co. of Boston , Inc. v. MacNeil Bros. Co., 358 Mass. 374, 379 (1970). . . . Against this background, rule 30 may be seen as a necessary and reasonable exercise of the power of the court to dismiss an appeal that may be regarded as having been abandoned.' Maciuca v. Papit, 31 Mass. App. Ct. 540, 544 (1991). 'It is . . . an appellant's duty to expedite an appeal.' Robinson v. Planning Bd. of Wayland, 23 Mass. App. Ct. 920, 921 (1986), and cases cited. This basic tenet is codified throughout the appellate rules, and is clearly set forth in Mass.R.A.P. 8(b)(3) and 9(c)(1), 378 Mass. 936 (1979), as well as Probate Court rule 30.
Probate Court rule 30 incorporates by reference rules 8(b)(3) and 9(c) of the Rules of Appellate Procedure. However, Mass.R.A.P. 9(c)(2), applicable to civil cases such as this, was amended in 1994 to exclude electronically recorded proceedings under rule 8(b)(3); the rationale for this change is that the timetables under the two rules 'for obtaining a transcript . . . do not mesh perfectly.' See Reporter's Notes to Mass.R.A.P 9(c)(2) - 1994, 47 Mass. Gen. Laws Ann., at 1077 (West 2006). The amendment settled the conflict in the rules that led to Hawkins v. Hawkins, 397 Mass. 401 (1986), and Russell v. McOwen-Hanelt, 413 Mass. 106 (1992). In 2002, rule 9(c)(2) was again amended to provide that an appellant who declines to order a transcript must so certify to the clerk within ten days. 437 Mass. 1602 (2002). Although the rationale underlying the exception for electronically recorded proceedings built into rule 9(c)(2) in 1994 does not appear to apply to the 2002 amendment, we have nonetheless confined our consideration of this appeal to Mass.R.A.P. 8(b)(3)and 9(c)(1), as incorporated in Probate Court rule 30, and the inherent powers of the court.
The executor argues that he committed no wrong, because it was the duty of the court to serve the notice of appeal, he did file the letter with the court, and he does not need the transcript in order to present his arguments on appeal. See Maurice Callahan & Sons, Inc. v. Outdoor Advertising Bd., 376 Mass. 135 (1978).
The argument is misinformed in three respects. First, it fails to account for the failure to prosecute the appeal for twenty months. See Scheuer v. Mahoney, supra (failure to prosecute appeal for four years). The executor was in fact the only person capable of prosecuting the appeal. He knew that he had filed the appeal and that he had not served it, leaving the appellee with no notice. He also knew that he had not received a notice of the filing of his appeal from the register of probate. True, this was an error by the register, but the register's error does not excuse the executor's failure to prosecute the appeal for a year and eight months. The 'responsibility for expediting appeals is ' squarely on the appellant,' and . . . excusable neglect calls for 'unique or extraordinary circumstances." Hawkins v. Hawkins, 397 Mass. 401, 408 (1986), quoting from Mailer v. Mailer, 387 Mass. 401, 406, 407 (1982). The executor's brief to the trial judge and on appeal 'provide[s] no compelling facts or arguments' to explain his failure to prosecute the appeal. Stephens v. Global NAPs, 70 Mass. App. Ct. 676, 683 (2007); Robinson v. Planning Bd. of Wayland, supra ('Although the judge made no finding of inexcusable neglect. . . we think such a finding implicit in the judge's ruling on the motions' [internal quotations omitted]). Second, the executor also knew that since he did not order a transcript, the only step left was the assembly of the record. Yet there is no evidence in the record that he made inquiry as to the status of that process.
Third, the executor confuses his argument on the merits with his obligation to cooperate with the opposing party in designation of the content of the record. One of the duties of the appellant is to assist the in assembling the record, and to give the appellee an opportunity to participate. This includes those acts which 'are necessary to move the appeal along and which the appellant is capable of performing, irrespective of an express mandate or a request by the clerk.' Robinson, supra. 'Even if we assume that the [executor] believed that his appeal raised no issues requiring a transcript of the evidence, he was required to state as much to [Letourneau].' Doten v. Doten, 395 Mass. 135, 139 (1985). [FN6] Letourneau clearly viewed the transcript as relevant to the appeal, and was entitled to participate in the process of preparing the record.
Doten v. Doten was decided under an earlier, and analogous, version of Mass.R.A.P. 8(b)(1), as in effect prior to the 2002 amendment to Mass.R.A.P. 9(c)(2) which expressly required a litigant who was not ordering a transcript to so certify to the court. See 378 Mass. 924 (1979).
Citing Mass.R.A.P. 3(a) and Tammaro v. Colarusso, 11 Mass. App. Ct. 44 (1980), the executor also argues that we should overlook the failure to prosecute the appeal, as no prejudice to the appellee has been shown. We disagree. Letourneau sold the Titanic artifacts in reliance on the finality of the final accounting and judgment. For nearly two years, she had every reason to believe that disposition was final. See generally Points East, Inc. v. City Council of Gloucester, 15 Mass. App. Ct. 722, 725-726 (1983). 'Appellees, particularly, are entitled to the progress of appeals with reasonable dispatch.' Id. at 726. See Brown v. Quinn, 406 Mass. 641, 645 (1990).
The judge had the discretion under the court's inherent powers to evaluate the culpability of the conduct, the delay, and the 'nature of the underlying action and the merits of the appeal.' Points East, supra at 726. There appears to be little likelihood of the executor's success on appeal. The executor has a formidable burden in urging reversal of the denial of a motion for relief from judgment; he must show that there has been an error of law or an abuse of discretion. Freitas v. Freitas, 26 Mass. App. Ct. 196, 198 (1988). Rezendes v. Rezendes, 46 Mass. App. Ct. 438, 441 (1999). Old Colony Trust Co. v. Hale, 302 Mass. 68 (1938), is binding precedent as to what constitutes the 'contents' of a house. The Titanic artifacts are 'contents,' analogous to Old Colony's jewelry in a safe, which passed to Letourneau under the terms of the will. They are not 'choses in action,' i.e., certain financial instruments which might pass to others. We agree with the probate judge's initial observation at the hearing on the motion to reopen the final accounting, since it matters not whether the appraisal was complete or accurate if the artifacts were 'contents' and therefore Letourneau's regardless of their value.
The only issue raised in the motion, and therefore the only issue which would be presented on appeal, is whether the Old Colony case should be overruled. Even if we were persuaded by the authorities from other jurisdictions cited by the executor, which we are not, this intermediate appellate court does not have the authority to overrule a decision of the Supreme Judicial Court. Commonwealth v. Healey, 26 Mass. App. Ct. 990, 991 (1988).
Order dated January 7, 2011, denying 'Motion to Enlarge Time for Appeal' affirmed.
Order dated March 30, 2011, denying motion to vacate judgment of dismissal affirmed.
By the Court (Grasso, Fecteau & Sullivan, JJ.), Clerk