Rhode Island Supreme Court Case Law

SENTAS v. SENTAS, 2005-310-Appeal (R.I. 12-14-2006)
NICHOLAS C. SENTAS v. RUTH SENTAS. No. 2005-310-Appeal, (PC
04-2246) Supreme Court of Rhode Island. December 14, 2006.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and
ROBINSON, JJ.

COPINION

Chief Justice WILLIAMS, for the Court.

The defendant, Ruth Sentas (defendant), appeals pro se from
a Superior Court order granting a motion to dismiss an
appeal that was filed by the plaintiff, Nicholas C. Sentas
(plaintiff). This case came before the Supreme Court for
oral argument on November 1, 2006, pursuant to an order
directing the parties to appear and show cause why the
issues raised in this appeal should not summarily be
decided. After hearing the arguments and examining the
memoranda filed by the parties, we are of the opinion that
this appeal may be decided at this time, without further
briefing or argument. For the reasons set forth below, we
affirm the judgment of the Superior Court dismissing this
action.

I

Facts and Travel

Despite the relative simplicity of the factual
circumstances giving rise to this action, the procedural
posture of this case is somewhat complex. This appeal
involves defendant’s liability on a promissory note she
executed on August 6, 2001, for $110,000, plus interest.
The plaintiff commenced this breach of contract action in
the Superior Court on April 28, 2004, seeking to recover
that $110,000, plus interest and costs owed pursuant to the
note’s terms. Service of process was made upon defendant on
May 15, 2004. Having not received an answer from defendant
within the twenty days afforded by Rule 12(a)(1)(A) of the
Superior Court Rules of Civil Procedure, plaintiff moved for
entry of default, which was entered on June 11, 2004. On
June 29, 2004, a default judgment for $122,518.06 entered
in plaintiff’s favor.

On March 10, 2005, over eight months after default judgment
was entered, defendant, who then was represented by
counsel, filed a motion to vacate the default judgment. To
support her motion, defendant argued that the judgment was
void for lack of personal jurisdiction and that there were
extenuating circumstances justifying her lack of response.
After a hearing on March 23 and 29, 2005, the Superior Court
denied defendant’s motion by order dated April 4, 2005. The
defendant filed a timely notice of appeal on April 21,
2005. Although defendant indicated on her notice of appeal
that she would order a transcript of the Superior Court
hearing, she failed to do so.

On June 29, 2005, plaintiff moved to dismiss defendant’s
appeal, citing defendant’s failure to timely order a
transcript, transmit the record on appeal, or file a
mediation statement in accordance with Article I, Rules 10,
11, and Provisional Rule A(4) of the Supreme Court Rules of
Appellate Procedure.[fn1] After a hearing, an order entered
in the Superior Court on July 13, 2005, granting
plaintiff’s motion to dismiss the appeal. On July 27, 2005,
defendant timely appealed this July 13 order, again noting
her intention to order a transcript. However, defendant
never ordered the transcript of the July 13 hearing;
instead, defendant ordered a transcript of an April 23,
2005 hearing.[fn2]

II

Analysis

The defendant raises several arguments on appeal, centering
on her allegation that the motion justice erred when he
denied her motion to vacate the default judgment. However,
none of these arguments are properly before this
Court.[fn3] As plaintiff aptly notes, the only issue
presented by this appeal is the propriety of the Superior
Court’s dismissal of defendant’s initial appeal from the
denial of her motion to vacate the default judgment.

A

Standard of Review

It is well established that “[t]his Court will reverse a
Superior Court dismissal of an appeal only upon a finding
that the motion justice abused his or her discretion.”
Small Business Loan Fund Corp. v. Gallant, 795 A.2d 531,
532 (R.I. 2002); see also Stepp v. Stepp, 898 A.2d 724, 724
(R.I. 2006) (mem.).

B

Failure to Provide Transcript

Article I, Rule 10(b)(1) of the Supreme Court Rules of
Appellate Procedure provides that “[w]ithin twenty (20)
days after filing the notice of appeal the appellant shall
order from the reporter a transcript of such parts of the
proceedings not already on file as the appellant deems
necessary for inclusion in the record.” Rule 11(a) of our
rules elaborates on this requirement:

“The record on appeal, including the transcript necessary
for the determination of the appeal, shall be transmitted
to the Supreme Court within sixty (60) days after the
filing of the notice of appeal unless the time is
shortened or extended by an order entered under
subdivision (c) of this rule. Promptly after filing the
notice of appeal the appellant shall comply with the
provisions of Rule 10(b) or (c) and shall take any other
action necessary to enable the clerk to assemble and
transmit the record.”

Furthermore, Article I, Rule 3(a) of the Supreme Court Rules
of Appellate Procedure impresses upon litigants the
potential consequences of failing to comply with this
requirement:

“Failure of an appellant to take any step other than the
timely filing of a notice of appeal or payment of a filing
fee as prescribed by these rules does not affect the
validity of the appeal, but is ground only for such action
as the Supreme Court or trial court deems appropriate,
which may include dismissal of the appeal.” (Emphasis
added.)

Ultimately, it is the appellant’s duty “to ensure that the
record is complete and ready for transmission.” Small
Business Loan Fund Corp., 795 A.2d at 532 (quoting Procopio
v. PRM Concrete Corp., 711 A.2d 650, 651 (R.I. 1998)
(mem.)). Even if an appellant opts to appeal without a
transcript, it is the appellant’s responsibility to so
inform the Court. Id. at 533 (citing Sup. Ct. R. 10(b)(1)).
This Court has warned that “[t]he deliberate decision to
prosecute an appeal without providing the Court with a
transcript of the proceedings in the trial court is risky
business.” 731 Airport Associates, LP v. H & M Realty
Associates, LLC, 799 A.2d 279, 282 (R.I. 2002). “Unless the
appeal is limited to a challenge to rulings of law that
appear sufficiently on the record and the party accepts the
findings of the trial justice as correct, the appeal must
fail.” Id. (citing DePetrillo v. Coffey, 118 R.I. 519, 521
n. 1, 376 A.2d 317, 318 n. 1 (1977)). Failing to transmit a
record “within [sixty] days of filing the notice of appeal,
‘leaves [a would-be appellant] in the same position as not
having filed notice at all.'” Small Business Loan Fund
Corp., 795 A.2d at 532-33 (quoting Procopio, 711 A.2d at
651).

Although dismissal of the appeal may be appropriate, “an
appeal will not be dismissed for failure to perfect if ‘the
inability of the appellant to cause timely transmission of
the record is due to causes beyond his [or her] control or
to circumstances which may be deemed excusable neglect.'”
Id. at 533 (quoting Daniel v. Cross, 749 A.2d 6, 9 (R.I.
2000)) (emphasis omitted). A litigant asserting excusable
neglect must demonstrate extenuating circumstances
sufficient to excuse his or her noncompliance with the
court rules. Daniel, 749 A.2d at 9. Unexplained neglect
alone is insufficient to excuse a party’s noncompliance.
Iddings v. McBurney, 657 A.2d 550, 553 (R.I. 1995). Rather,
“[e]xcusable neglect that would qualify for relief * * * is
generally that course of conduct that a reasonably prudent
person would take under similar circumstances.” Daniel, 749
A.2d at 9 (quoting Astors’ Beechwood v. People Coal Co.,
659 A.2d 1109, 1115 (R.I. 1995)).

Not only has defendant failed to perfect the present appeal
by providing this Court with the proper transcript, but an
identical error was among the procedural missteps that
prompted the dismissal of defendant’s first appeal. The
defendant’s failure to provide this Court with a transcript
of the July 13 hearing leaves us unable to conduct any
meaningful review of the lower court’s decision. Without a
transcript of the hearing we are unable to determine
whether the motion justice abused his discretion in
dismissing defendant’s appeal from the denial of her motion
to vacate the default judgment.

The record in this case is devoid of any explanation for
defendant’s failure to timely order a transcript of the
July 13 hearing. This Court is aware only that defendant
failed to order the proper transcript, which alone does not
constitute excusable neglect. Rather, it is our opinion
that the reasonably prudent person would ensure that he or
she has ordered the correct transcript to perfect the
appeal. Furthermore, defendant’s election to proceed pro se
in this appeal does not excuse her from compliance with
court processes. “Even if a litigant is acting pro se, he
or she is expected to familiarize himself or herself with
the law as well as the rules of procedure.” Faerber v.
Cavanagh, 568 A.2d 326, 330 (R.I. 1990). Moreover,
notwithstanding defendant’s current pro se status,
defendant was, in fact, represented by counsel when her
original appeal was dismissed. Even if defendant had
perfected this appeal, her only explanation for failing to
timely order a transcript of the March 23 and 29 hearings
was that she was enduring financial difficulties and had
trouble communicating with the court stenographer. These
allegations alone are insufficient to demonstrate excusable
neglect, given that it is the appellant’s responsibility to
timely transmit both the record and the transcript to this
Court.

Without a transcript of the hearing on the plaintiff’s
motion to dismiss the defendant’s appeal, we are unaware of
whether the defendant asserted any explanation for her
neglect to the motion justice. Therefore, we are unable to
determine whether the motion justice abused his discretion
in dismissing the defendant’s appeal from the denial of her
motion to vacate the default judgment.

Conclusion

For the reasons stated herein, we affirm the Superior
Court’s order dismissing the defendant’s appeal, and we
remand the record to the Superior Court.

[fn1] Two days after plaintiff moved to dismiss defendant’s
appeal, defendant’s counsel moved to withdraw their
appearance, which was granted on July 14, 2005.[0]

[fn2] Although defendant ordered a transcript of an April 23
hearing, no record of a hearing on that day can be found.
The transcript for the March 23 and 29 hearing on
defendant’s motion to vacate entry of default was misdated
and reads “April 23, 29, 2005.” Correspondence from
defendant to the Superior Court clerk’s office indicates
that defendant believed she had ordered a transcript for a
March hearing. Nevertheless, the proper transcript of the
July 13, 2005 hearing never was ordered.

[fn3] In her notice of appeal — date-stamped July 27,
2005 — defendant indicated that she was appealing
the Superior Court’s dismissal of her appeal on July 13.[0]
Despite this indication, plaintiff attempts to bootstrap
into her current appeal arguments relating to the motion
justice’s denial of her motion to vacate the default
judgment.[0] These arguments would have been properly
before us only if defendant successfully had appealed the
motion justice’s denial of her motion to vacate the default
judgment. However, defendant sat on any rights she may have
had to prosecute that appeal.[0] We decline now to allow
defendant a second bite at the apple. See Griggs v. Griggs,
845 A.2d 1006, 1011 (R.I. 2004).

Furthermore, Article I, Rule 3(c) of the Supreme Court
Rules of Appellate Procedure expressly requires appealing
parties to designate in their notice of appeal “the
judgment, order or decree or part thereof appealed from.”
We will not consider “an issue on appeal for which a notice
of appeal never was filed.” State v. Hallenbeck, 878 A.2d
992, 1020 (R.I. 2005). Because defendant has filed a notice
of appeal only from the July 13 order, we cannot properly
consider defendant’s belated arguments regarding the motion
justice’s denial of her motion to vacate entry of default
judgment.