Opinion
No. 11–P–723.
2012-05-18
Lori Ann BLANEY, administratrix, v. Linda COWAN & others.
By the Court (KATZMANN, VUONO & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Lori Ann Blaney (in her capacity as administratrix of the estates of Alice A. LeBoeuf and George H. LeBoeuf), appeals from an order of a Superior Court judge allowing the defendants' postjudgment motion for the release of a medical malpractice tribunal bond. We affirm.
Only a brief discussion of the facts and procedural history is necessary. In January, 1998, Alice LeBoeuf (LeBoeuf), the plaintiff's mother, escaped from Lowell General Hospital (the hospital), where she had been admitted involuntarily, and was struck by a motor vehicle on a nearby highway. Three years later, the plaintiff brought a medical malpractice case against the hospital. In 2006, the plaintiff was granted leave to amend the complaint to add the defendants, five nurses who worked at the hospital at the time of the incident. A medical malpractice tribunal found insufficient evidence against the defendants and the plaintiff filed a bond in the amount of $6,000. The defendants then filed a motion for judgment on the pleadings, contending that the statute of repose prevented their addition to the case. That motion was allowed, and we subsequently affirmed the separate and final judgment dismissing the plaintiff's case against the defendants. See Blaney v. Lowell Gen. Hosp., 76 Mass.App.Ct. 910 (2010). After the rescript issued, the defendants filed a motion for release of the medical malpractice bond, which was allowed. The plaintiff appealed.General Laws c. 231, § 60B, as amended by St.1986, c. 351, § 21, states that the bond is “payable to the defendant or defendants in the case for costs assessed ... if the plaintiff does not prevail in the final judgment.” The plaintiff claims that even though she did not prevail, the dismissal of the case was not a judgment on the merits that would trigger the bond's release. Apart from the fact that the phrase “judgment on the merits” does not appear in the statute, a judgment based on a statute of limitations defense, similar to the case here, constitutes a final judgment “on the merits.” See, e.g., TLT Constr. Corp. v. A. Anthony Tappe & Assocs., Inc., 48 Mass.App.Ct. 1, 10 n. 8 (1999). Furthermore, although some decisions have conflated the “judgment on the merits” and “final judgment” concepts, no cases dealing with § 60B have been decided on such a fine distinction. In any event, as we stated in Hamilton v. Dawson, 55 Mass.App.Ct. 437, 438–439 (2002), a “final judgment” within the meaning of § 60B
LeBoeuf subsequently died of unrelated causes.
The case eventually proceeded to trial against the hospital and a jury returned a verdict in its favor.
The defendants argue that the plaintiff's appeal is not timely, because she failed to file a notice of appeal within thirty days of the entry of the judgment after rescript. The plaintiff, however, is not appealing from the judgment; the plaintiff has appealed from the order releasing the bond. As to that order, the appeal is timely.
The plaintiff's alternative argument, that if her motion to add the defendants had not been erroneously allowed, the defendants would not be entitled to the funds, lacks merit and does not require discussion.
“means that judgment has been entered for the defendant and the plaintiff has failed or chosen not to appeal, or that the plaintiff exhausted his right to appeal and was unsuccessful.”
The judgment here certainly qualifies within that description such that it triggered the defendants' right to the release of the § 60B bond.
There is no dispute that the legal costs that the defendants have incurred exceed the amount of the bond.
Accordingly, we affirm the order allowing the defendants' motion for release of the tribunal bond. The defendants' request for appellate attorney's fees and costs is denied.
So ordered.