Opinion
No. 11–P–139.
2013-02-25
Donna CROSBY, executrix, v. Pauline A. Baker O'SHEA & others.
By the Court (GRASSO, BERRY & KAFKER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a five-day trial, which included a view, a judge of the Land Court found and ruled that the plaintiff had established record title to some lots and title by adverse possession to other lots, but not the entirety of a 220 lot undeveloped subdivision. On appeal, the plaintiff argues that the judge erred in ruling that she had not established her rights by adverse possession to the entire remainder of the subdivision. To the extent the plaintiff purports to appeal from the judgment, the appeal fails because the plaintiff's appeal from the judgment is untimely. We also affirm the order denying the parties' joint motion to vacate judgment and substitute findings of fact, and amended judgment (joint motion). 1. Background. On April 1, 2010, the Land Court entered judgment, together with a plan delineating the property found to be owned by the plaintiff. The town of Holbrook filed a notice of appeal on April 30, 2010, within the thirty day time period specified by Mass.R.A.P. 4(a), as amended, 430 Mass. 1603 (1999). The plaintiff did not appeal, or cross-appeal, from the judgment as permitted by that rule.
The plaintiff's notice of appeal is not included in the record appendix.
The joint motion is also not part of the record on appeal.
The town was the sole remaining defendant, all others having withdrawn their objection or defaulted. The town has since abandoned its appeal from the judgment.
Six months later, on October 4, 2010, the parties filed the joint motion. The judge, who was also the trial judge, denied that motion on November 18, 2010. The plaintiff appealed from that order, filing a notice of appeal on December 2, 2010.
Together with the notice of appeal from the order denying the joint motion, the plaintiff also filed a motion to extend time for filing an appeal to permit filing appeal late (assented to). The motion to extend time is also not included in the record before us.
2. Discussion. All that is properly before us on this record is the plaintiff's appeal from the order denying the joint motion to vacate the judgment. The merits of the underlying judgment are not before us because the plaintiff failed timely to appeal from that judgment. Although a timely motion to alter or amend the judgment under Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974), would toll the appeal period, here the joint motion, which was served six months after entry of judgment, was not timely for that purpose. Nor did the plaintiff petition the single justice of this court pursuant Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979), for an enlargement of time to file her cross appeal. Accordingly, to the extent that the plaintiff purports to appeal from the underlying judgment, that appeal is dismissed as untimely.
Even were we to consider the merits, the plaintiff would fare no better. The plaintiff has record title to four of the fairly small lots in the 220 lots of the subdivision (lots 88, 89, 90, and 113). On factual findings that are not clearly erroneous, the judge decided the plaintiff had adversely possessed approximately forty of the lots, plus a good portion of several others on which a driveway was constructed. In contrast, the judge found that the plaintiff's actions with regard to the remaining lots of the subdivision were not adverse enough, or sufficiently longstanding, to establish adverse possession. The judge did not err in concluding that the plaintiff only established title through adverse possession to the extent of the judgment.
To the extent the plaintiff's appeal challenges the denial of the joint motion, that appeal is timely, but unavailing. Preliminarily, we note that we may affirm the order denying the joint motion for the reason that the plaintiff failed to include either the joint motion or the notice of appeal from the order denying that motion in the record appendix. Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). See Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007). Moreover, whether characterized as a motion under rule 59(e), or more appropriately as one under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), the joint motion is committed to the sound discretion of the motion judge and reversible on appeal only for abuse of discretion. The judge was well aware of the plaintiff's failure to take a timely appeal from the judgment or timely move to alter or amend the judgment. The judge saw no principled reason for vacating his findings and rulings, arrived at after trial, in favor of posttrial factual stipulations agreed upon by the parties. See Nortek, Inc. v. Liberty Mut. Ins. Co., 65 Mass.App.Ct. 764, 774–775 (2006). On the record before us, we discern no abuse of discretion in that determination. See Berube v. McKesson Wine & Spirits Co., 7 Mass.App.Ct. 426, 433–434 (1979).
The town has not appealed from the denial of the joint motion.
From the docket, we observe that the joint motion is not a timely filed rule 59(e) motion and thus is akin to a motion made rule 60(b). See Piedra v. Mercy Hosp., Inc., 39 Mass.App.Ct. 184, 187 & n. 3 (1995).
Order denying joint motion affirmed.