Opinion
19-P-108
12-09-2019
Nicholas JAMIESON v. DEPARTMENT OF CORRECTION.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Nicholas Jamieson, appeals from an order of a judge of the Superior Court that dismissed his appeal as untimely. We affirm.
Procedural background. In 2015, Jamieson, a correction officer discharged by the defendant, the Department of Correction (department), obtained a judgment that reinstated his employment and awarded him back pay and benefits. A panel of this court, in an unpublished memorandum and order, affirmed, but remanded the case for calculation of prejudgment interest. On January 31, 2018, a second amended judgment on rescript (second amended judgment) entered, that awarded Jamieson prejudgment interest in the amount of $2,156. Thereafter, Jamieson filed a multitude of motions. On February 12, 2018, no action was taken on his motion for outstanding retirement benefits as he failed in filing the motion to comply with Rule 9A of the Rules of the Superior Court (2018) (rule 9A ). On February 26, 2018, Jamieson filed a second motion seeking an order requiring "the Department of Correction to submit Mr. Jamieson's outstanding retirement for buyback." He argued that the department asserted that it contacted the State Retirement Board (SRB) and the SRB informed the department that Jamieson was not entitled to buy back retirement because he was collecting workers' compensation for the period of time in question. This motion was denied on March 9, 2018, because Jamieson "ha[d] not exhausted his remedies before the [SRB]."
See Jamieson v. Department of Correction, 91 Mass. App. Ct. 1108 (2017) (Jamieson I ).
Jamieson appears to have sought an order compelling a nonparty, the State Retirement Board, to buy back the retirement he would have received had he not been terminated.
See G. L. c. 30A, § 14, and G. L. c. 32, § 16. See also Massachusetts Teachers' Retirement Sys. v. Contributory Retirement Appeal Bd., 466 Mass 292, 293-294 (2013).
Jamieson filed a third motion seeking entry of a final judgment; the motion was denied on March 30, 2018, for failure to comply with rule 9A. On May 18, 2018, Jamieson filed a fourth motion, seeking the same relief. On August 6, 2018, the motion was denied; a note on the docket read, "[n]o action necessary. Second Amended Final Judgment entered 1/31/18." On August 10, 2018, Jamieson filed a notice of appeal from the August 6, 2018 denial. On September 18, 2018, the department moved to dismiss Jamieson's appeal, arguing that the appeal of the January 31, 2018 second amended judgment was untimely; the motion was allowed on December 10, 2018. Jamieson timely appealed from that order.
We note that both parties have briefed the issue as if Jamieson has appealed from the second amended judgment. However, in his notice, Jamieson specified that he was appealing from "the Superior Court[ ] [e]ndorsement on [m]otion for [f]inal [j]udgment, dated [August 6, 2018]." We exercise our discretion, overlooking the underlying deficiencies, to construe Jamieson's August 10, 2018 notice of appeal as being from the dismissal of his appeal from the second amended judgment, and the August 6, 2018 denial of his motion for final judgment.
Discussion. Pursuant to the remand order, on January 31, 2018, the second amended judgment entered that computed the prejudgment interest owed to Jamieson. He had a right to appeal that judgment only with respect to the calculation of interest. Jamieson argues on appeal that the motions that he filed after the second amended judgment entered tolled the appeal period. Additionally, Jamieson argues that the second amended judgment was interlocutory, as it did not, he claims, resolve all of the issues. We are not persuaded.
1. Finality of second amended judgment. In his original complaint, Jamieson requested damages and equitable relief, contending that he was unlawfully terminated. He sought, as relevant here, "[r]einstatement to [his] previous position without loss of pay, grade, rank, benefits, vacation time, sick time, and seniority." Following cross motions for summary judgment, the judge ordered Jamieson reinstated and left open the issue of monetary damages and other relief. After further briefing, the judge entered an order concluding that Jamieson was "entitled to all statutory benefits and all benefits pursuant to the collective bargaining agreement beginning as of November 24, 2010 and continuing thereafter." On September 2, 2015, judgment entered for Jamieson in the amount of $176,838.90, compensating him for back pay, sick, personal, and vacation time. Thereafter a revised judgment entered that amended the number of hours and benefits to which Jamieson was entitled. Jamieson appealed, and we affirmed in part, and remanded in part. See Jamieson I. Pursuant to the remand order, the second amended judgment entered that calculated and ordered prejudgment and postjudgment interest.
Jamieson's argument here that the second amended judgment did not resolve all of the issues between the parties is not supported by the record. Jamieson I addressed all issues with the exception of prejudgment interest; the second amended judgment, issued after Jamieson I, resolved that issue.
To the extent that Jamieson argues that the second amended judgment was not "entered" in accordance with Mass. R. Civ. P. 58 (a), as amended, 371 Mass. 908 (1977), we discern no error. The judgment entered following remand from this court. In addition, Jamieson did not file a petition for rehearing or an application for further appellate review from Jamieson I, and has thus waived any issues that he believed were unresolved. See Mass. R. A. P. 23, as appearing in 367 Mass. 921 (1975).
We cite to the Massachusetts Rules of Appellate Procedure in effect during the relevant time period. The rules were wholly revised, effective March 1, 2019. See Reporter's Notes to Rule 1, Mass. Ann. Laws Court Rules, Rules of Appellate Procedure, at 446 (LexisNexis 2019). The substantive requirements of rule 23 at issue in this case, are unchanged. See Mass. R. A. P. 23, as amended, 481 Mass. 1653 (2019).
2. Tolling of the time for appeal. "We apply the abuse of discretion standard to determine whether the judge was warranted in dismissing the appeal." Spivey v. Neitlich, 59 Mass. App. Ct. 742, 744 (2003). Jamieson argues that by filing postjudgment motions, the appeal period was tolled until action on those motions. See Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013). And, he argues that his motion for outstanding retirement benefits was akin to a motion to amend filed pursuant to Mass. R. Civ. P. 52 (b), as amended, 423 Mass. 1402 (1996), which tolls the appeal period until the motion is resolved.
We again cite to the Massachusetts Rules of Appellate Procedure in effect during the relevant time period. See note 5, supra. The substantive requirements of rule 4, at issue in this case, are unchanged. See Mass. R. A. P. 4 (a), as amended, 481 Mass. 1606 (2019).
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We agree with the motion judge that Mass. R. Civ. P. 52 (b) was not applicable here, and the appeal was properly dismissed. However, even if the motion tolled the appeal period, Jamieson was required to file a notice of appeal within sixty days of the denial of that motion. See Mass. R. A. P. 4 (a). This he did not do. In addition, to the extent that Jamieson argues that his motion for final judgment further tolled the appeal period, the result is the same. That motion was not filed pursuant to Mass. R. Civ. P. 52 (b), and was properly dismissed.
Order allowing department's motion to dismiss appeal affirmed.