DAN BROCK & Others, Trustees v. PAUL R. PINET & Another.

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

24-P-787

DAN BROCK & others,1 trustees,2

vs.

PAUL R. PINET & another.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant condominium unit owners appeal from a

Superior Court judge's order dated March 28, 2024 (March 28

order), which (1) denied their request to enlarge the time for

complying with a prior procedural order and, (2) struck their

notices of appeal from earlier orders and from a separate and

final judgment entered against them on count one of the

plaintiff condominium trustees' complaint. Seeing no abuse of

discretion, we affirm the March 28 order.

1Sally Harty, Martha Slaight, Chris Conway, Jim Feeney, and
Pam Sibbald.

2 Of the Westport Point Condominium Trust.

3 Marita Hyman.
Background. In 2018, the trustees filed a two-count

complaint seeking to recover unpaid common expenses (count one)

and to establish and enforce a lien for those expenses (count

two). The defendants, representing themselves, answered and

filed counterclaims. There followed several years of

procedurally tangled litigation in which the defendants filed

numerous notices of appeal. In particular, in late 2020,

separate and final judgment entered against the defendants on

count one, and the defendants filed a timely notice of appeal.4

Three years later, in 2023, the defendants moved for an

order compelling assembly of the record. The trustees opposed,

and sought to strike the defendants' notices of appeal, on the

ground that the defendants had failed to comply with their

obligations under Mass. R. A. P. 9 (d) (2), as appearing in 481

Mass. 1615 (2019), regarding transcripts. The judge heard the

motion and request to strike on January 30, 2024.

In an order dated February 21, 2024 (February 21 order),

the judge concluded that striking the defendants' notices of

appeal was too drastic a sanction for their rule 9 (d) (2)

noncompliance, particularly where, "[g]iven the nature of the

4 On count two of the complaint, separate and final judgment
ultimately entered in the defendants' favor. Proceedings on the
defendants' counterclaim were stayed pending the disposition of
any appeal related to the trustees' claims.

2
proceedings being appealed from, no transcript is necessary,"

and "the only step the defendants have failed to take is that of

producing a signed statement that they do not intend to order

any portions of the transcript." Accordingly, the judge allowed

the defendants' motion to compel assembly of the record, but on

the conditions that, within twenty-one days after February 21,

the defendants file and serve (1) "a signed statement that they

have not and do not intend to order a copy of any transcript of

the proceedings," and (2) "a signed statement of all orders from

which they are appealing in this case, including the dates of

all such order(s)."

The twenty-one day deadline came and went on March 13,

2024, with no action by the defendants. Nearly two weeks later,

on March 25, 2024, the defendants filed a "request for emergency

extension of time to submit some record of transcript requests

and [n]otices of [a]ppeal that have already been docketed in

this case." The defendants asserted that one of them had been

in a medical procedure on February 22, 2024, and had been

required to organize the other's medical procedures set for

March 22, 2024. The defendants stated that they did "not need

any further transcripts other than those already ordered and

[had] no need to further burden the [court] with [notices of

appeal] other than those on the docket ([s]ee [d]ocket)." The

3
defendants nevertheless requested an extension to April 10,

2024, so that "all [n]otices and [t]ranscript requests are

resubmitted as the [c]ourt has ordered."

The judge then issued the March 28 order at issue in this

appeal. The order denied the request for extension of time,

reconsidered the denial of the trustees' request to strike the

notices of appeal, and ordered the notices struck. The judge

reasoned that the defendants' refusal to comply with the two

simple conditions of the February 21 order, together with their

belated request for an enlargement of time to comply with it,

demonstrated that "the defendants either cannot or will not

comply with the rules of litigation, and that the protracted

nature of this litigation has been due, in great part, to that

inability or unwillingness to comply." This appeal followed.5

Discussion. Although the defendants' brief on appeal

challenges the merits of numerous orders issued throughout the

course of the litigation, the sole order before us is the March

28 order denying their request for an extension of time and

5 The defendants also filed, on April 29, 2024, a motion for
reconsideration directed to the March 28 order and arguably to
the February 21 order. The judge denied that motion on May 3,
2024, and the defendants filed a notice of appeal from the
denial on August 8, 2024. Because that notice was filed well
after the thirty-day deadline established by Mass. R. A. P.
4 (a) (1), as appearing in 481 Mass. 1606 (2019), no appeal of
the May 3 order denying reconsideration is before us.

4
striking all of their prior notices of appeal. We discuss in

turn the two parts of that order.

1. Extension of time. In general, "[d]ecisions on requests

for extension of time are reviewed for an abuse of discretion."

Lawrence Sav. Bank v. Garabedian, 49 Mass. App. Ct. 157, 161

(2000). An abuse of discretion is a "clear error of judgment in

weighing the factors relevant to the decision such that the

decision falls outside the range of reasonable alternatives"

(quotation and citation omitted). L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).

Here, the judge denied the defendants' request for an

extension on the grounds that (1) it was filed well after

(rather than within) the deadline previously set for their

compliance; (2) the tasks that were to have been completed by

that deadline were "simple, requiring mere minutes to perform";

and (3) the defendants' noncompliance was part of a history of

"inability or unwillingness to comply" with procedural rules,

which had already resulted in "protracted" litigation.6 These

were all legitimate factors to be considered when deciding

whether to grant an extension that would further prolong the

litigation.

6 The judge also noted that the request had been improperly
filed by facsimile transmission.

5
The judge could also consider that the two reasons the

defendants offered for the extension request carried little

weight. First, the defendants cited a medical procedure on

February 22, 2024, and a series of medical procedures on March

22, 2024. But the judge's February 21 order had given the

defendants three full weeks to comply, i.e., until March 13,

2024. A medical procedure on the first day of the twenty-one-

day compliance period did not explain the failure to comply on

the remaining twenty days, nor did medical procedures occurring

after the compliance period expired explain that failure.7

Second, as the judge stated, the defendants were

inexplicably asking for more time to perform "tasks that the

February 21 [o]rder does not require them to perform, such as

gathering the record of transcript requests that have been

docketed in this case." The February 21 order had required them

to file merely "a signed statement that they have not and do not

intend to order a copy of any transcript of the proceedings." A

one-sentence statement would have sufficed. Nothing required

them to take the time (let alone extra time) to list any

previous transcript requests.

7 Moreover, the letter that the defendants attached to their
extension request listed dates for medical appointments that did
not correspond to the February 22 and March 22 dates listed in
the request itself.

6
To be sure, the judge may have overlooked that on March 9,

2021 (three years earlier), the defendants had requested certain

transcripts of non-evidentiary hearings, and that those

transcripts had already been filed with the clerk on October 6,

2021. Such an oversight would have been understandable, given

that the docket then consisted of thirty-one pages, spanning

more than six years, and involving rulings by three judges other

than the judge here, whose first involvement was not until

January 2024. Although the trustees, in opposing the motion to

compel assembly of the record, had mentioned the defendants'

earlier transcript request, they did not add that the

transcripts had already been filed; it appears, at least on the

record before us, that the judge may have been unaware of that

fact.

The reasonable response by the defendants to any such

oversight would have been at least for them simply to include,

in their signed statement about not ordering transcripts, a

qualifying phrase such as, "other than those transcripts already

ordered, which were filed with the clerk on October 6, 2021."

Instead, the defendants' extension request included the

incomplete and therefore confusing statements that they did "not

need any further transcripts than those already ordered," and

that they needed more time so that the "[t]ranscript requests

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[could be] resubmitted." This gave the judge no information

about what transcripts the defendants had requested and how much

longer the clerk and the parties might need to wait for those

transcripts to be filed before an appeal could proceed.8

For these reasons, we see no abuse of discretion in the

judge's denial of the defendants' extension request.

2. Striking notices of appeal. "If any appellant in a

civil case shall fail 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). Here,

the defendants' noncompliance with rule 9 (d) (2) is undisputed.

The trustees accordingly requested that the notices of appeal be

struck (the equivalent of dismissing the appeals). The judge

initially denied that request as too drastic a remedy but gave

the defendants an additional three weeks to cure their

noncompliance; the defendants failed, without adequate excuse,

8 The defendants' approach was further exemplified by the
assertion in their April 2024 motion to reconsider that the
February 21 order was "impossible" and "can not be met in any
time frame." We have not the slightest doubt that the timely
filing of a signed statement including the qualifying phrase we
have set forth above would have been treated as complying with
the February 21 order. When the judge denied the motion to
reconsider, she noted that at the hearing on January 30, 2024,
when the order to file the rule 9 (d) (2) statement was
discussed, "[t]he defendant[s] did not mention that it would be
impossible to comply, which of course it was not."

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to comply within that time. We treat the judge's March 28 order

denying the defendants' extension request as an implicit finding

of inexcusable neglect. We review the judge's determination for

abuse of discretion. See Neuwirth v. Neuwirth, 85 Mass. App.

Ct. 248, 257 (2014). For essentially the same reasons as

discussed above regarding the denial of the extension request,

the judge did not abuse her discretion in striking the

defendants' notices of appeal.9

3. Attorney's fees. The trustees request an award of

their appellate attorney's fees, based both on article VI,

section 4, of the Westport Condominium Trust, and on the

assertedly frivolous nature of this appeal. We consider those

two grounds in turn.

The cited condominium bylaw provision states in pertinent

part as follows:

"In the event of a default by any Unit Owner in the payment
of his or her share of the common charges, the Trustees may
seek to recover such common charges, interest, and expenses
[1] by an action to recover the same brought against such
unit Owner, or [2] by foreclosure of the lien on such unit

9 We are also authorized to exercise independent judgment
regarding whether striking the notices of appeal was appropriate
in these circumstances. See Mailer v. Mailer, 387 Mass. 401,
407 (1982). Taking into account the history of this litigation
and the defendants' role in prolonging it, we conclude that
striking the notices was appropriate. "[U]nder the
circumstances presented here, we see no reason not to hold [the
defendants] to the same standards as litigants who are
represented by counsel" (quotation and citation omitted).
Neuwirth, 85 Mass. App. Ct. at 257.

9
as provided in Section 6 of Chapter 183A of the General
Laws of Massachusetts or in any other manner permitted by
law. In any action brought by the Trustees to foreclose a
lien on a Unit because of unpaid common charges, the Unit
Owner shall, to the extent permitted by law, be required to
pay the costs and expenses of such proceedings and
reasonable attorneys' fees . . . ." (Emphases added.)

This provision identifies two specific methods for the trustees

to recover unpaid common charges: by an action against the unit

owner, or by foreclosure of the lien on the unit. But it is

only in an action to foreclose a lien that the unit owner is

required to pay attorney's fees.

We think it implicit in the bylaw provision that fees are

due only if the trustees prevail on their claim to foreclose the

lien. Here, the trustees did not do so; although they initially

obtained judgment on count two, which sought such foreclosure,

that judgment was vacated and a new judgment entered for the

defendants on that count. The trustees prevailed only on count

one, seeking to recover the unpaid common charges in an action

directly against the defendants as unit owners. Thus, the bylaw

provision does not support an award of attorney's fees.

Nor do we think the defendants' appeal was frivolous.

Although the defendants certainly misperceived the scope of the

appeal, and although the arguments in their brief and reply

brief that the judge abused her discretion in the March 28 order

were unsuccessful, those arguments were not completely

10
meritless. See U.S. Bank Trust, N.A. v. Johnson, 96 Mass. App.

Ct. 291, 297 (2019) (frivolousness goes beyond "simply lacking

merit" and denotes "futility, not a prayer of a chance"

[citation omitted]). We therefore deny the trustees' request

for appellate attorney's fees.

Order dated March 28, 2024,
affirmed.

By the Court (Sacks, Smyth &
Wood, JJ.10),

Clerk

Entered: November 4, 2025.

10 The panelists are listed in order of seniority.

11