Opinion
No. 12–P–1522.
2013-05-14
Eugene GUERRERA v. Robert K. SAMIA.
By the Court (RUBIN, FECTEAU & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from an order of a judge of the Superior Court that struck a notice of appeal (NOA) and dismissed the defendant's appeal on the ground that the NOA misidentified the ruling from which the defendant appealed, in violation of Mass.R.A.P. 3(c), as appearing in 430 Mass. 1602 (1999). As we deem the sanction to have been unduly harsh under the circumstances, we reverse.
In August, 2003, plaintiff Eugene Guerrera brought a collection action in Connecticut, based on a contract, against defendant Robert K. Samia. In December, 2003, Samia recorded a homestead declaration for his home in Worcester. In June, 2006, by an agreement for judgment, Guerrera obtained a Connecticut judgment against Samia in the amount of $120,000. To enforce the Connecticut judgment in Massachusetts, Guerrera filed suit here in September, 2010. He filed a motion for summary judgment, without opposition which, on May 4, 2011, a Superior Court judge allowed. On May 10, 2011, Samia filed a timely NOA. This notice stated that he was appealing “from the finding on Motion (P# 7) dated May 3, 2011, to wit, the denial of the Defendant's Motion To Dismiss and Motion to Vacate Attachment.” On June 20, 2011, Guerrera moved to strike or dismiss Samia's NOA. On September 15, 2011, after hearing, another Superior Court judge allowed Guerrera's motion to strike or dismiss “for the reasons stated therein.”
The order allowing summary judgment stated: “There being no opposition filed and the order of the Connecticut Court being entitled to full faith and credit, summary judgment shall enter for plaintiff against defendant in the amount of $120,000, plus statutory interest and costs. The court orders that plaintiff's claim being prior in time to the recording of the Homestead Declaration, said claim is NOT subject to the Homestead recorded for real estate located at 8 Valley Hill Drive, Worcester MA[.]”
The notice of action on the motion sent by the clerk's office was dated May 3, 2011.
Those reasons were: “[Samia's] Motion to Dismiss and Motion to Vacate Attachment was not denied on May 3, 2011. [Samia] cannot file an Appeal on something that has not been decided by the court. The court did not enter a decision on [Samia's] Motion to Dismiss and Motion to Vacate Attachment, as the Court entered Judgment in [Guerrera's] favor on [Guerrera's] Motion for Summary Judgment, rendering the Motion to Dismiss and Motion to Vacate Attachment moot. [Samia's] Notice of Appeal does not indicate that [Samia] is appealing the decision concerning [Guerrera's] Motion for Summary Judgment. Although the pleading no. listed by [Samia] in the Notice of Appeal relates to [Guerrera's] Motion for Summary Judgment, the language of the Appeal clearly indicates [Samia] is appealing the denial of [Guerrera's] Motion to Dismiss and Motion to Vacate Attachment. Rule 3(c) of Massachusetts Appellate Procedure states that the appeal shall specify the party taking the appeal and shall designate the judgment, decree, adjudication, order or part thereof appealed from. [Samia] has failed to comply with Rule 3(c). Therefore, the Appeal must be stricken/dismissed.”
In this appeal, the only real issue is whether Samia's NOA, despite its facial inconsistency, was sufficient to serve as an appeal from the allowance of summary judgment. The judge, however, did not reference this inconsistency: in his NOA, the defendant identified docket paper no. 7, but his written description, set forth in the NOA, was to his motion to dismiss and vacate attachment, docket paper no. 6, which at the time had not been acted upon. Moreover, even if the defendant's motion to dismiss and vacate attachment could have been considered as implicitly denied by the allowance of summary judgment, the denial of a motion to dismiss is interlocutory in nature and therefore, not ordinarily an appealable final order. Fabre v. Walton, 436 Mass. 517, 521 (2002), S. C., 441 Mass. 9 (2004). Furthermore, even if this denial had been appealed, jurisdiction would have been limited to the single justice, who is not authorized to reverse the denial of a dispositive motion. See Mass.R.A.P. 15(c), 365 Mass. 859 (1974). Last, the NOA refers to a ruling of May 3, 2011; the only action reflected in this record that appears over the date of May 3, 2011, was the clerk's mailing of notice to the parties of the judge's endorsement of the allowance of the plaintiff's motion for summary judgment.
To interpret the NOA as an appeal from the denial of the defendant's motion to dismiss was overly narrow; in our view of these circumstances, the NOA could be fairly read as an appeal from the allowance of summary judgment, the only dispositive ruling that was ripe for appeal. “We decline to avoid a decision on the merits of the appeal on the basis of that technicality.” Morgan v. Evans, 39 Mass.App.Ct. 465, 467 n. 4 (1995), citing Swampscott Educ. Assn. v. Swampscott, 391 Mass. 864, 865–866 (1984), and Johnson v. Chateau De Ville, Inc., 20 Mass.App.Ct. 933, 933 n. 1 (1985). The order striking the defendant's NOA and dismissing the appeal must be reversed.
We intend no suggestion by our decision on whether the defendant's appeal from the summary judgment has any merit.
So ordered.