Opinion
21-P-1142
11-21-2022
SIDDHARTH SIDDHARTH v. RAHUL CHATURVEDI.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
This is an appeal from an order of a Superior Court judge striking the defendant's notice of appeal as premature under Mass. R. A. P. 4 (a) (3), as appearing in 481 Mass. 1606 (2019). The plaintiff filed the underlying action in April 2017, seeking to enforce a promissory note executed by the defendant. After the defendant conceded liability and a trial was held on damages only, judgment for the plaintiff entered on June 2, 2021.
Within ten days of the judgment, the defendant served a motion for a new trial. On July 1, 2021, while the motion was still pending, the defendant filed a notice of appeal from the judgment. The trial judge denied the motion for a new trial on August 10, 2021, and the defendant did not thereafter file a new notice of appeal.
In October 2021, the plaintiff moved to dismiss the defendant's appeal "for failing to comply with [Mass. R. A. P.] 9(d) and 10(a)." On November 8, 2021, a second judge allowed the plaintiff's motion but on the ground (apparently raised sua sponte) that the defendant's motion for a new trial rendered his notice of appeal premature and of no effect. On November 9, 2021, the defendant filed a timely appeal from the second judge's order.
Rule 4 (a) (3) provides that "[a] notice of appeal filed before the disposition of any timely motion listed in Rule 4 (a) (2)" -- including a timely motion for a new trial --"shall have no effect" and "[a] new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the last such remaining motion." The defendant's July 1, 2021, notice of appeal was premature and of no effect under the plain language of this rule. In Roch v. Mollica, 481 Mass. 164, 165 n.2 (2019), however, the Supreme Judicial Court excused the appellant's noncompliance with the rule and reached the merits of her appeal, explaining that "the concerns underlying rule 4 (a) are not implicated" where "no action on the appeal had yet been taken before the motion for reconsideration was decided." A few years later, in Tocci Building Corp. v. Iriv Partners, LLC, 101 Mass.App.Ct. 133, 136 n.5 (2022), we interpreted Roch to have "held that [premature] notices of appeal . . . will bring the merits of an appeal before the appellate court where . . . 'no action on the appeal had yet been taken before the motion for reconsideration was decided.'"
Here, when the trial judge denied the defendant's motion for a new trial, no action had been taken on the defendant's July 1, 2021, appeal. In these circumstances, while we are sympathetic to the plaintiff's wanting to see an end to this protracted litigation, we are constrained by Roch and Tocci Building Corp. to reinstate the appeal. We do not preclude the plaintiff on remand from asserting other grounds for dismissing the appeal, including the grounds raised in his original motion.
We note that the second judge did not have the benefit of Tocci Building Corp., supra, when he issued his decision.
The order striking the defendant's notice of appeal is reversed, and the case is remanded for further proceedings consistent with this decision.
So ordered.
The panelists are listed in order of seniority.