MARK KINCHLA & Others v. HILDRED PENNOYER & Others.

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-622

MARK KINCHLA & others1

vs.

HILDRED PENNOYER & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Plaintiff Mark Kinchla appeals from the dismissal of

certain of his claims in the Superior Court and from an order

denying his petition to vacate an arbitration award regarding

certain other claims of his. We are unable to determine whether

1Peter Kinchla; Joanne Kinchla; Paul J. Kinchla, Jr.; and
Maryanne (Kinchla) Sorge. Because the Kinchlas "share the same
last name, we will refer to them by their first names." Passero
v. Fitzsimmons, 92 Mass. App. Ct. 76, 78 n.3 (2017). Joanne,
Paul, and Maryanne, through counsel, filed a notice that they
did not intend to file a brief or pursue this appeal. Peter
failed to file a brief or to respond to our request that he
inform us whether he intended to file a brief.

2Michael Kinchla, individually and as trustee of the Paul
J. Kinchla Trust, as trustee of the Marjorie G. Kinchla Trust,
and as trustee of the PJK Nominee Trust; Disola Development,
LLC; and O'Connor & Drew, P.C.
summary judgment was properly granted because the record we have

been provided is inadequate to make that determination.

Concluding that Mark's other claims lack merit, we affirm.

1. Appellate jurisdiction. The resolution of this case in

the Superior Court has proceeded in four stages. First, in

December 2014, a Superior Court judge denied the motion of

O'Connor & Drew, P.C. (O'Connor & Drew), to dismiss the

complaint against it but granted its motion for a more

definitive statement. The plaintiffs' motions to file a second

amended complaint with a more definitive statement were denied

in May and August 2015, effectively dismissing the complaint as

to O'Connor & Drew.

Second, in July 2017, a different Superior Court judge

(second judge) granted summary judgment to the remaining

defendants on the plaintiffs' claims relating to transfers of

interest in Disola Development, LLC (Disola claims).

Third, in August 2021, the parties agreed to submit the

claims regarding the three trusts to binding arbitration. In

September 2023, the arbitrator issued an award favorable to

Michael Kinchla. The plaintiffs filed a petition to modify,

correct, or vacate the award, and a third Superior Court judge

(third judge) denied that petition in January 2024. On February

1, 2024, the plaintiffs filed a notice of appeal.

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Fourth, in August 2024, the third judge issued an order

stating that the defendants would be allowed attorney's fees

related to the Disola claims pursuant to G. L. c. 231, § 6F, and

Mass. R. Civ. P. 11, as amended, 456 Mass. 1401 (2010).

Litigation regarding the amount of those fees remains ongoing.

The first jurisdictional wrinkle facing us is the fact that

the Superior Court never entered a judgment dismissing the

Disola claims or the claims against O'Connor & Drew. Normally,

the absence of a final judgment would deprive us of appellate

jurisdiction. See Linder v. Pollak, 102 Mass. App. Ct. 386, 390

(2023). Here, however, the case is final (putting aside, only

for a moment, the attorney's fees litigation). With the

confirmation of the arbitration award, the summary judgment

order, and the denial of the plaintiffs' motions to file a

second amended complaint, all counts in the complaint have been

resolved. Although the court should have issued a separate

document judgment pursuant to Mass. R. Civ. P. 58 (a), as

amended, 371 Mass. 908 (1977), the absence of such a separate

document judgment does not preclude appellate review where the

case is otherwise final. See Zielinski v. Connecticut Valley

Sanitary Waste Disposal, Inc., 70 Mass. App. Ct. 326, 330 (2007)

("it is not fair to prevent the parties' exercise of their

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posttrial and appellate rights on the basis of clerical

niceties").

The second jurisdictional wrinkle, as foretold, is the

continued litigation regarding attorney's fees. Here, the

existence of "matters collateral to the judgment, such as

attorney's fees," does not deprive the judgment of its finality.

Tryon v. Massachusetts Bay Transp. Auth., 98 Mass. App. Ct. 673,

688 n.16 (2020). Accordingly, the existence of this collateral

litigation does not deprive us of appellate jurisdiction.

2. Summary judgment. Most of the plaintiff's brief

challenges the order granting summary judgment to the defendants

on the Disola claims. "We review a grant of summary judgment de

novo to determine 'whether, viewing the evidence in the light

most favorable to the nonmoving party, all material facts have

been established and the moving party is entitled to judgment as

a matter of law." Jeune v. UMass Memorial Health Care Sys., 106

Mass. App. Ct. 95, 98 (2025), quoting Cottrell v. Laidley, 103

Mass. App. Ct. 483, 489 (2023).3

Regarding the Disola claims, the complaint was filed well

outside the relevant statutes of limitations. The plaintiffs

3 Because we review the grant of summary judgment de novo,
it is irrelevant whether the second Superior Court judge
misplaced the burden of persuasion, as the plaintiff contends.

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advanced two factual arguments against the statute of

limitations: fraudulent concealment and lack of mental capacity

on the part of Paul Kinchla, Sr. After reviewing the summary

judgment record, the second judge found that the summary

judgment record establishes that Paul Sr. had actual knowledge

of the share assignments and "that mentally, [Paul Kinchla, Sr.]

was functioning at a high level."

The record presented to us is woefully inadequate to

determine whether these rulings were correct. The summary

judgment record consisted of "99 numbered exhibits -- consisting

of thousands of pages." The plaintiff has provided us with

thirty-eight pages from the summary judgment record. None of

these pages, by themselves or together, establish that a genuine

issue of material fact exists regarding either fraudulent

concealment or lack of capacity. "The burden is on the

appellant to ensure that an adequate record exists for an

appellate court to evaluate." Openshaw v. Openshaw, 493 Mass.

599, 611 n.21 (2024), quoting Commonwealth v. Woods, 419 Mass.

366, 371 (1995). "Generally, his failure to do so is fatal to

his appeal." Roby v. Superintendent, Mass. Correctional Inst.,

Concord, 94 Mass. App. Ct. 410, 412 (2018). This is not some

technical requirement; it is impossible for us to determine

whether there was error on the record before us.

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3. Other arguments. We discern no abuse of discretion in

the second judge's declining plaintiffs' counsel's offer to

submit citations to the summary judgment record after the

hearing on the summary judgment motion. Although the judge

would have been well within his discretion to disregard the

plaintiffs' submission altogether, see Nickerson v. Flynn-

Morris, 103 Mass. App. Ct. 703, 708 (2024), the judge instead

"reviewed the exhibits for information relevant to the statute

of limitations defense being raised by the defendants in this

motion." The judge acted within his discretion. See Dziamba v.

Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 401 (2002).

The plaintiff also purports to appeal from the order

denying his petition to vacate the arbitration award and the

dismissal of his claims against O'Connor & Drew. He provides no

explanation why either of those decisions was in error.

Accordingly, review of these orders is waived. See Cubberley v.

Commerce Ins. Co., 495 Mass. 289, 294 n.8 (2025); Geezil v.

Whites Cliffs Condo. Four Ass'n, 105 Mass. App. Ct. 103, 112 n.8

(2024).

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4. Conclusion. The order entered January 2, 2024, denying

the plaintiffs' motion to modify, correct, or vacate the

arbitration award is affirmed. Insofar as the orders entered

May 22, 2015, August 18, 2015, and July 19, 2017, effectively

dismissed the other claims in the complaint, those orders are

affirmed.

So ordered.

By the Court (Meade,
Ditkoff & Toone, JJ.4),

Clerk

Entered: December 15, 2025.

4 The panelists are listed in order of seniority.

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