Opinion
No. 12–P–157.
2013-03-19
Richard B.X. ENGLISH v. SAM'S EAST INC.
By the Court (CYPHER, GREEN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff filed a complaint in the District Court in 2008 for personal injuries allegedly suffered after a slip and fall on the defendant's property on January 16, 2007. The case was dismissed on June 22, 2010, as the damages sought by the plaintiff exceeded the jurisdictional limit of the District Court. See G.L. c. 218, § 19A. At that point, the three-year statute of limitations had run, and the plaintiff had thirty days to refile the action in a different court. See G.L. c. 218, § 19A( d ).
“Notwithstanding chapter 260 or any other applicable statutes of limitation, in a civil action under this section in which a plaintiff's case has been dismissed as provided in this section, the plaintiff shall be given 30 days after the date of receipt of the notice of dismissal ... to file the case in the appropriate court.... The 30–day time limit in this section shall apply only when the time permitted under the applicable statute of limitations would have expired at any time from the original commencement of the action to the end of the 30–day period.” G.L. c. 218, § 19A( d ), as appearing in St.2004, c. 252, § 6.
Approximately six months later, the plaintiff refiled the same action in the Superior Court. That complaint was dismissed, and judgment entered, on March 7, 2011, “for essentially the reasons presented in [the defendants'] motion [to dismiss] and memorandum.” On a date no earlier than April 5, 2011, the plaintiff served on the defendant a motion for reconsideration of the judgment of dismissal. Because the plaintiff, as conceded, did not timely serve the motion under Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974) (“not later than 10 days after entry of the judgment”),
the motion did not toll the otherwise applicable thirty-day period provided by Mass.R.A.P. 4(a), as amended, 430 Mass. 1603 (1999), for appeal from the judgment. The motion to reconsider was denied on May 16, 2011, with the notation, “See G.L. c. 218 [,][§ ] 19A( d ).” On May 31, 2011, the plaintiff filed a notice claiming appeal both from the order denying his motion for reconsideration and from the judgment of dismissal. The defendant moved on June 7, 2011, to dismiss the appeal, asserting that the appeal was not timely filed.
The reconsideration motion therefore sounded as a motion for relief from judgment under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). See Stephens v. Global NAPs, 70 Mass.App.Ct. 676, 682 (2007).
After a hearing, a different judge dismissed the plaintiff's appeal on October 22, 2011. The docket entry reads, “After hearing, careful review of the submission of the parties and review of the prior orders of this court as requested by plaintiff, the defendant's motion to dismiss appeal is ALLOWED for essentially the reasons set forth in defendant's memorandum. I do not find that Superior Court Rule 9D set[s] forth new enlarged periods in which a motion for reconsideration may be filed as plaintiff contends.” The plaintiff timely filed a notice of appeal from the order dismissing his appeal, which is the focus of the instant appeal.
The defendant filed a second motion to dismiss on July 11, 2011, asserting that the plaintiff's appeal should be dismissed based on the fact that the plaintiff had failed to docket the appeal within ten days of the record assembly as required by Mass.R.A.P. 4; it appears from the record before us that this motion was not acted upon.
In sum, the only matter the plaintiff has properly put before us is the order dismissing his appeal. That appeal, in turn, was timely as to the order denying the plaintiff's motion for reconsideration, notice having been filed within thirty days of the order's entry. The second judge therefore erred in dismissing the appeal from that order. However, as to the claimed appeal from the underlying judgment, the order of dismissal was correct, the plaintiff having failed to file a timely notice of appeal from that judgment.
We therefore reverse so much of the order of October 22, 2011, as dismisses the plaintiff's appeal from the order denying his motion for reconsideration, and we reinstate that appeal. The balance of the order of October 22, 2011, is affirmed. Furthermore, we now exercise our discretion to consider the merits of the reinstated appeal on the present record appendix and briefing, and we conclude that the first motion judge did not abuse his discretion by denying the plaintiff's motion for reconsideration. See Harris v. Sannella, 400 Mass. 392, 394–395 (1987) (a motion for relief from judgment is not a substitute for an appeal); Stephens v. Global NAPs, 70 Mass.App.Ct. 676, 684–685 (2007) (denial of motion for relief from judgment reviewed for abuse of discretion). See also Lopes v. Commonwealth, 442 Mass. 170, 181 (2004) (“We may affirm ... on ‘any ground apparent on the record that supports the result reached in the [trial] court’ ”), quoting from Gabbidon v. King, 414 Mass. 685, 686 (1993). The order denying the motion for reconsideration therefore is affirmed.
So ordered.