Opinion
14-P-848
03-13-2015
HINGHAM INSTITUTION FOR SAVINGS v. STANLEY E. BUDRYK & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants, Stanley E. Budryk and Joanne M. Budryk (the Budryks), appeal from a decision and order entered by the Appellate Division affirming the denial of their motion to stay execution of a judgment for possession entered against them in a summary process action brought by Hingham Institution for Savings (Hingham). We affirm.
On December 8, 2011, Hingham commenced a summary process action against the Budryks. A District Court jury returned a verdict in favor of Hingham and, following the denial of various posttrial motions, a judgment for possession was entered on April 16, 2013. The Budryks filed a number of appeals to the Appellate Division, but these appeals were either dismissed or the orders of the judge were affirmed. Thereafter, on Hingham's motion for an issuance of execution, an execution issued on March 11, 2014. The docket also reflects the entry of judgment on that same day in favor of Hingham for possession and rent. However, no judgment actually entered on that day. As we have previously noted, a final judgment was entered on April 16, 2013. Despite this, on March 12, 2014, the Budryks filed an emergency ex-parte motion to stay execution pending appeal. The denial of that motion was affirmed by the Appellate Division on the ground that no stay was warranted because "final judgment in this case entered on April 16, 2013."
On appeal, the Budryks claim, incorrectly, that the docket entry dated March 11, 2014, triggered a ten-day period of stay before execution could lawfully issue. See G. L. c. 239, § 5(a) (providing for a ten-day stay of execution following entry of judgment). See also Mass.R.Civ.P. 62(d), 365 Mass. 829 (1974) (staying execution pending appeal). The Budryks have ignored the fact that judgment for possession and rent was granted in favor of Hingham nearly eleven months prior to the docket entry in question. The only motion before the court in March, 2014, was Hingham's request for an issuance of the execution. The allowance of that motion did not itself constitute a "final judgment" triggering a ten-day period of stay. That order merely allowed execution on the "final judgment" rendered on April 16, 2013. Nor did the court take any additional action on March 11, 2014, that would give rise to a new period of stay.
The Budryks argue that the docket entry is alone sufficient to trigger a new period of stay. Their reliance on Commonwealth v. MacDonald, 435 Mass. 1005 (2001), in making this argument is inapposite. While noting that "docket entries are prima facie evidence of the facts recorded therein," the MacDonald decision makes clear that "other evidence . . . may rebut the prima facie effect of the docket," including additional documents and events in the procedural history. See id. at 1006-1007. Furthermore, as Hingham points out, a docket entry can have no effect without an underlying judgment. Levy v. Bendetson, 6 Mass. App. Ct. 558, 561 (1978).
Decision and order of the Appellate Division affirmed.
By the Court (Trainor, Brown & Vuono, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 13, 2015.