Opinion
No. 12–P–543.
2013-09-3
Anthony ORLOFSKI & another v. Walter BORDEN & others.
By the Court (KANTROWITZ, MEADE & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The question presented in this case is whether the entry of judgments against all of the defendants on October 28, 2010, constituted an appealable final judgment within the meaning of Mass.R.Civ.P. 58(a), as amended, 371 Mass. 908 (1977), and triggered the thirty-day appeal period established by Mass.R.App.P. 4(a), as amended, 430 Mass. 1603 (1999). The plaintiffs did not file a notice of appeal within thirty days of October 28, but they contend that they were not required to do so in the circumstances of this case because the judgments entered on that date were not “final.” For the reasons that follow, we affirm the order striking the plaintiffs' notice of appeal.
Because we decide the case on this basis, we do not address the defendants' alternate argument—that the appeal from the order allowing the motion to strike the notice of appeal was untimely.
Procedural background. This dispute arises out of an action for defamation filed by the plaintiffs against the defendants in 2008. It is unnecessary to recite the allegations of the complaint or the procedural history of the case prior to the disposition of motions in October, 2010. The record indicates that a judgment of dismissal as to each of the defendants entered on October 28, 2010, when an assistant clerk of the Superior Court endorsed a series of documents and made corresponding docket entries indicating that the plaintiffs' complaint against each of the five defendants was dismissed. These judgments were faxed to all parties on October 28, 2010. Nearly eight months later, on June 16, 2011, the plaintiffs filed a motion entitled “request for Entry of Final Judgment as to the Remaining Defendants for Purposes of Appeal.” After hearing, this motion was denied on November 7, 2011.
The judge's endorsement denying the plaintiffs' motion stated that motions for summary judgment on behalf of defendants Aon Risk Services, Inc., and Sowa, Borden, and Zinkus, were allowed on October 27, 2010, and in each case the motion bears an endorsement by the judge stating that the motion was allowed and, briefly, the reasons for the allowance. On that same day, the judge allowed a motion by defendant Kimberly Davis Crear for entry of separate and final judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974). The following day, October 28, 2010, judgments were entered for all of the defendants. The judgment for the defendant Crear is captioned “Final Judgment pursuant to Rule 54(b),” while the judgments for the other defendants are captioned “Summary Judgment M.R.C.P. 56.” The judge stated that the effect of the judgments entered on October 28, 2010, as to each defendant was that final judgment as to all defendants entered on October 28, 2010. The judge regarded the plaintiffs' June 16, 2011, motion as simply a device to obtain a “duplicate” judgment solely to extend the time within which the plaintiffs could appeal from the underlying judgments entered on October 28, 2010.
The next step taken by the plaintiffs was to file a notice of appeal from the October 28, 2010, judgments and the November 7, 2011, order denying the motion for entry of final judgment, on November 16, 2011. On motion by defendant Zinkus, the judge struck this notice of appeal on the grounds that it was untimely and simply an attempt to revive an expired appeal period that was beyond the power of the court under rule 4. After an unsuccessful attempt to obtain interlocutory relief from a single justice of this court, the plaintiffs filed another notice of appeal on or about February 23, 2012, seeking review of the order allowing the motion to strike the notice of appeal dated November 14, 2011.
Discussion.Rule 54(a)(2) provides in part that a “judgment” or a “final judgment” includes “a decision by the court that ... all relief shall be denied ....“ Rule 54(b) provides in part that “when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”
Defendant Crear's motion for summary judgment was allowed on September 17, 2010. A rule 54(b) separate and final judgment entered on October 28, 2010. As to all the remaining defendants, orders having previously entered on their motions for summary judgment, the clerk entered judgments for each of them on October 28, 2010, by endorsing and docketing a series of separate documents entitled “Summary Judgment.” By examining the docket and the materials faxed to plaintiffs' counsel's office, it should have been apparent to the plaintiffs' counsel that, as of October 28, 2010, in keeping with rule 54(a) and (b), the judge had adjudicated the rights of all the parties, and thus final judgments had entered against the plaintiffs on all the claims and as to all the parties.
In view of the disposition of all the claims on October 28, the entry of the separate judgment under rule 54(b) was superfluous.
The primary case on which the plaintiffs rely does not hold to the contrary. In Jones v. Boykan, 74 Mass.App.Ct. 213 (2009), this court observed that no judgment is final in the sense contemplated by rules 54(b) and 4(a) until and unless all claims against all parties have been disposed of. Id. at 217–218. What led the court in Jones to conclude that the plaintiff's notice of appeal had been filed in a timely manner was the “confusion” the court noted had been caused by a series of separate judgments entered on August 15, 2006, “each addressing discrete claims involving only certain parties.” Id. at 218 n. 9. The court added that “[p]rior to the entry of the April 12, 2007, amended judgment, the only document indicating that the city had been dismissed as a party was the judge's order appended to her memorandum of decision that preceded the entry of the two ‘judgments' on August 15, 2006.” Id. at 217–218. In other words, unlike the situation in this case where all claims against all parties had been adjudicated, in Jones v. Boykan, all the claims against all the parties had not been addressed. In the circumstances of Jones, it followed that the notice of appeal filed by the plaintiff on May 7, 2007, within thirty days of the entry of an amended judgment which dismissed the city, was timely under rule 4(a).
The present case is quite different. As of October 28, 2010, the docket entries made it clear that the rights of all the parties had been adjudicated, and thus a final judgment (or judgments) in the sense contemplated by rule 54(b) and rule 4(a) had entered.
As this court also noted in Jones v. Boykan, 74 Mass.App.Ct. 213, 218 n. 9 (2009), the “better practice” is “to have a single final judgment enter as to all claims and parties.” See RCS Group, Inc. v. Lamonica Constr. Co., 75 Mass.App.Ct. 613, 618 n. 8 (2009).
Order striking notice of appeal affirmed.