Opinion
16-P-411
03-28-2017
John RIFE v. ALLIED HOME MORTGAGE CAPITAL CORPORATION & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff John Rife is appealing from the denial of his second motion for reconsideration of a judgment confirming the order of an arbitrator dismissing his claims. We affirm.
The judgment confirming the arbitrator's award entered on June 5, 2012. On July 25, 2012, Rife filed a motion to reconsider pursuant to Mass.R.Civ.P. 60(b)(1) and/or 60(b)(6), 365 Mass. 828 (1974). It is unclear whether this motion served to toll the appeal period pursuant to Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013), as the record does not reflect when the motion was served. See Arthur D. Little, Inc . v. East Cambridge Sav. Bank , 35 Mass. App. Ct. 734, 742-743 (1994) (postjudgment motion need not be filed within the ten-day period, it merely need be served on the opposing side within ten days). That motion was denied, nearly two years later by an order entered on April 8, 2014. Rife filed a timely notice of appeal from that order on May 1, 2014, and the record was assembled on June 26, 2014. Rife failed to enter that appeal with our court within the ten-day period prescribed by Mass.R.A.P. 10(a)(1), as amended, 435 Mass. 1601 (2001). Instead, he filed a second motion to reconsider in the trial court on July 8, 2014. The second motion was denied by an order entered on July 16, 2014, by the trial court judge "for the same reasons as the ruling" made in April, 2014. On July 25, 2014, Rife filed a timely notice of appeal specifically referencing only the July 16, 2014, denial of his second motion to reconsider. See West Springfield v. Olympic Lounge, Inc ., 45 Mass. App. Ct. 923, 924 (1988) (notice of appeal that expressly designated it was from postjudgment motion could not be treated as an appeal from the judgment); Robinson v. Boston , 71 Mass. App. Ct. 765, 771 (2008) (notice of appeal referenced judgment, but not postjudgment motion to reconsider or motion to amend; validity of those rulings not properly before appellate court).
Although the second motion to reconsider is the only matter properly before us, Rife's brief does not address it. Instead, he addresses only the propriety of the judgment confirming the arbitrator's award, which is not properly before us. Accordingly, any issue as to the propriety of the denial of the second motion to reconsider is waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See also Mole v. University of Mass ., 58 Mass. App. Ct. 29, 31 n.4 (2003), S .C ., 442 Mass. 582 (2004) (issue raised in notice of appeal is nonetheless waived if the brief does not argue the point).
Indeed, it is not even clear whether Rife has included a copy of the motion in the appendix. It is unclear whether the motion to reconsider included in the appendix is the first or second such motion. To the extent it is the first motion, which it appears to be, that motion is not properly before us, as the appeal from that order was never entered. If the motion to reconsider included in the appendix is not the second motion, the failure to provide us with a copy of that motion, which is the only motion properly before us, prevents our consideration of the appeal on the merits. See Chokel v. Genzyme Corp ., 449 Mass. 272, 279-280 (2007) (failure to include motion to amend in appendix; court declined to consider whether a judge abused his discretion in denying the motion).
--------
We note in closing that to permit a party to file successive motions to reconsider an order to avoid the consequences of that party's failure to perfect a prior appeal is not in the interests of judicial economy, nor is it consonant with the favored principle of the finality of judgments. Cf. Manousos v. Sarkis , 382 Mass. 317, 322 (1981) (filing of a motion to modify or dissolve an order does not revive defective appeal from original order in the absence of changed circumstances); Gutierrez v. Massachusetts Bay Transp. Authy ., 442 Mass. 1041, 1042-1043 (2004) (issues not raised in first appeal may not be raised in second appeal); Blake v. Springfield St. Ry. Co ., 9 Mass. App. Ct. 912, 913 (1980) (appellant foreclosed from raising issue in second appeal that "could have been raised in the first appeal").
Accordingly, the order entered on July 16, 2014, denying Rife's motion to reconsider is affirmed. Allied Home Mortgage Capital Corporation's request for double costs, fees, and expenses is denied.
So ordered .
Affirmed.