Opinion
No. 11–P–1283.
2012-06-20
Thomas J. FREEMAN, trustee, v. Clara A. GREEN & others.
By the Court (KANTROWITZ, KAFKER & GREEN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In a memorandum and order entered May 21, 2012, we dismissed the cross appeal of defendant Donna Marie Kittle (Kittle) as untimely. The docket indicated that Kittle's notice of appeal was filed on October 21, 2010, and we noted that her appeal would have been timely only if her notice was filed by October 19, 2010. She has moved to reinstate her appeal, including a certified copy of her notice of appeal with a stamped date of receipt of October 19, 2010. Based on this document, we conclude that Kittle did in fact file a timely notice of appeal, and that the date shown on the docket is erroneous. Cf. Samuels v. SUFA Corp., 38 Mass.App.Ct. 922, 922–923 (1995). We therefore allow her motion to reinstate her appeal, and consider her appeal on the merits. Kittle claims that the probate judge failed to include an award of attorney's fees and costs (which were requested in Kittle's counterclaim and cross claim and by a separate motion) and certain other relief in the judgment dated July 15, 2010.
Subsequent to the entry of that judgment, the judge held a hearing on Kittle's motion for attorney's fees and costs and issued an order awarding her attorney's fees and costs. However, a final judgment was not entered after this order, nor was the prior judgment amended to include the award.
We encourage the use of a motion under Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974), or Mass.R.Civ.P. 60(a), 365 Mass. 828 (1974), as appropriate, to bring these omissions to the attention of the probate judge rather than addressing them in this court in the first instance.
It is apparent that an amended judgment should enter reflecting the full relief to which the probate judge found Kittle to be entitled. See Mass.R.Civ.P. 54(c), 365 Mass. 820 (1974) (“[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled”); G.L. c. 215, § 39B (“The sums awarded [for attorney's fees and costs] shall be specified in the judgment ...”). It is the judgment and not the underlying decision and order that determines the rights of the parties. See Peter v. Sacker, 271 Mass. 383, 386 (1930). See also Mass.R.Civ .P. 54(a), 365 Mass. 820 (1974) (defining judgment as “the act of the trial court finally adjudicating the rights of the parties”). The intention of the judge to grant Kittle the relief she now seeks is clear from his decisions and orders. No party has appeared in this court to contest Kittle's right to an amended judgment.
Therefore, the judgment dated July 15, 2010, shall be modified to specify that Clara A. Green shall pay her proportionate share of the estate taxes assessed on Helen I. Doherty's estate, and that Clara A. Green shall pay to Donna Marie Kittle the sums of $35,567.50 in counsel fees and $2,240.67 in expenses. As so modified, the judgment is affirmed.
So ordered.