Small Business Loan Fund Corp. v. Gallant, 2000-380-Appeal.
Decision Date | 03 May 2002 |
Docket Number | No. 2000-380-Appeal.,2000-380-Appeal. |
Citation | 795 A.2d 531 |
Parties | SMALL BUSINESS LOAN FUND CORPORATION v. David M. GALLANT et al. |
Court | Rhode Island Supreme Court |
Present WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
George E. Babcock, Providence, David M. Gallant for Plaintiff.
Kelley A. Nickson for Defendant.
The defendant, David M. Gallant (Gallant), has appealed an order of the Superior Court that dismissed the defendants' appeal from a summary judgment in favor of the plaintiff, the Small Business Loan Fund Corporation.1 The case came before the Supreme Court for oral argument on April 8, 2002, pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be summarily decided. After reviewing the record, the oral arguments, and the memoranda of the parties, we are of the opinion that cause has not been shown, and we summarily affirm the dismissal.
Underlying this appeal was a dispute over the liability of defendants Gallant and Diane Cloutier-Gallant as personal guarantors on a promissory note. The note was executed in connection with a $75,000 loan from plaintiff to CW Acquisition Corporation d/b/a CW Corporation RIBCO Division, which allegedly default ed on the loan. The Superior Court granted plaintiff's motion for summary judgment against both defendants, and final judgment was5/02/02 entered on September 8, 1999. Gallant's motion to vacate the summary judgment was denied, and twenty days after the entry of summary judgment, defendants jointly filed a notice of appeal from the final judgment against them. On May 23, 2000, plaintiff moved to dismiss defendants' appeal for failure to order a transcript within the ten-day period set forth in Article I, Rule 10(b)(1) of the Supreme Court Rules of Appellate Procedure. The motion justice granted the motion, and Gallant has appealed that order.
Under this rule, it is the duty of the appellant "to ensure that the record is complete and ready for transmission." Procopio v. PRM Concrete Corp., 711 A.2d 650, 651 (R.I.1998) (mem.). "[F]ailure to perfect an appeal under Rule 11, which requires transmission of the record within 60 days of filing the notice of appeal, `leaves [a would-be appellant ] in the same position as not having filed notice at all.'" Id. (quoting Town of Lincoln v. Cournoyer, 118 R.I. 644, 648, 375 A.2d 410, 412 (1977)); see also State v. Pineda, 712 A.2d 858, 861 (R.I.1998) ( ). However, an appeal will not be dismissed for failure to perfect if "the inability of the appellant to cause timely5/02/02 transmission of the record is due to causes beyond his control or to circumstances which may be deemed excusable neglect." Daniel, 749 A.2d at 9 (quoting Armstrong v. Armstrong, 115 R.I. 144, 146, 341 A.2d 37, 39 (1975)).
Excusable neglect has been characterized as neglect "occasioned by some extenuating circumstances of sufficient significance to render it excusable," Daniel, 749 A.2d at 9 (quoting Fields v. S. & M. Foods, Inc., 105 R.I. 161, 162, 249 A.2d 892, 893 (1969)); as "a failure to take the proper steps at the proper time, not in consequence of the party's own carelessness, inattention, or willful disregard of the process of the court, but in consequence of some unexpected or unavoidable hindrance or accident, or...
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