Opinion
14-P-823
03-05-2015
BERNARD D. BRAHM & another v. HISTORIC DISTRICT COMMISSION OF PROVINCETOWN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this cross appeal, plaintiffs appeal from a judgment of the Superior Court entered on December 17, 2013, and defendant appeals from an order denying its motion to strike plaintiffs' notice of appeal from that judgment. Plaintiffs filed their notice of appeal on March 13, 2014, well over sixty days after the entry of the judgment. Plaintiffs acted under the mistaken belief that the time for filing their notice of appeal had been tolled by service on December 30, 2013, of their motion for reconsideration and to alter or amend the judgment under Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974).
Indeed, if "a timely motion" under rule 59 is filed, "the time for appeal for all parties shall run from the entry of the order" disposing of the motion. Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013). (The order denying the plaintiffs' rule 59 motion was entered February 12, 2014.) To be timely, however, a motion under rule 59 must be served "within ten days after entry of judgment" (emphasis supplied). Ibid. See Mass.R.Civ.P. 59(e) ("A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment"). "Entry" means "that date on which notation of the judgment or order was actually entered on the docket, whether by hand or by input of data into a computer." Commonwealth v. Mullen, 72 Mass. App. Ct. 136, 138 (2008). The docket clearly reflects entry of the judgment on December 17, 2013. Although the notice of entry of the judgment was not mailed until the next day, December 18, and plaintiffs' counsel received copies of both the judgment (dated December 17) and notice (dated December 18) on December 19, the entry date controls. Accordingly, the rule 59 motion had to be served no later than Friday, December 27, 2013, to be timely. It was not. See Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184, 187 (1995) (untimely motion to reconsider does not toll period for filing notice of appeal).
Defendant raised this issue in a motion to strike plaintiffs' notice of appeal. A judge of the Superior Court denied the defendant's motion to strike on April 16, 2014, and in the same order purported to enlarge the plaintiffs' time for filing their notice of appeal, citing Mass.R.A.P. 4(c), as amended, 378 Mass. 928 (1979). The defendant timely appealed from that order. At the time of the trial judge's order, nearly four months after entry of the judgment, the judge lacked the power to enlarge the plaintiffs' time for filing their notice of appeal. See Commonwealth v. Boutwell, 21 Mass. App. Ct. 201, 205 (1985) ("[I]t is clear that a trial judge does not have the power to permit a defendant to file a notice of appeal beyond the sixty-day period"). See also Mass.R.A.P. 4(c).
As a timely filed notice of appeal is jurisdictional, Pierce v. Board of Appeals of Carver, 369 Mass. 804, 811 (1976), the plaintiffs' appeal is dismissed.
The order denying defendant's motion to strike plaintiffs' notice of appeal is reversed.
So ordered.
By the Court (Fecteau, Wolohojian & Massing, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: March 5, 2015.