Opinion
11-P-1676
05-16-2012
EDWARD B. TOBIN & another v. VITO A. MEOLA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was one of multiple guarantors of a $100,000 loan made by the plaintiffs. No portion of the note was repaid by the appointed date, but the plaintiffs eventually received partial repayments from all of the guarantors except the defendant. As a result of the defendant's failure to make any payments on the note, the plaintiffs sued the defendant due to the default of the original promissors. The defendant filed a third-party complaint against the other guarantors, seeking contribution.
The plaintiffs moved for summary judgment, an assessment of damages, and a separate and final judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), on the original complaint. The defendant did not file a timely opposition to any of these motions. The motion judge granted summary judgment for the plaintiffs and assessed damages in the amount of $41,638, interest of $12,387, attorney's fees in the amount of $26,950, and costs. Judgment did not enter, and the defendant, therefore, did not appeal from these decisions. At that time, the motion judge denied the plaintiffs' motion for separate and final judgment, noting that '[s]eparate and final judgment is the exception, not the rule, because of the specter of piecemeal appeals.' After the third-party defendants moved to transfer and consolidate the case, the plaintiffs once again moved for separate and final judgment pursuant to rule 54(b). The motion judge granted the plaintiffs' renewed motion. The defendant now appeals from the entry of separate and final judgment for the plaintiffs.
The defendant did file a motion for leave to file late opposition to the plaintiffs' motion for summary judgment and plaintiffs' motion for separate and final judgment. The judge denied this motion and the defendant has not appealed from that denial.
In her order, the motion judge explained that, '[h]aving been persuaded now by the further arguments in the plaintiffs' cross-motion the court reconsiders its earlier ruling and now ALLOWS the plaintiffs' cross-motion for separate and final judgment, especially in view of the fact that the defendant did not oppose the entry of Summary Judgment in favor of the plaintiffs.'
Discussion. Rule 54(b) states, in relevant part:
'When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or 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 direction for the entry of judgment.''[A] valid rule 54(b) certification requires the confluence of four factors: (1) the action must involve multiple claims or multiple parties; (2) there must be a final adjudication as to at least one, but fewer than all, of the claims or parties; (3) there must be an express finding that there is no just reason for delaying the appeal until the remainder of the case is resolved; and (4) there must be an express direction of the entry of judgment.' Long v. Wickett, 50 Mass. App. Ct. 380, 385-386 (2000). The defendant argues that the third prong was not met here because the amount of contribution due from the third-party defendants has not yet been determined. We disagree.
The defendant admitted to the motion judge that he was liable to the plaintiffs under the note, and was unable to point to anything that might change the amount of damages to which the plaintiffs are entitled. Although the defendant argues that the motion judge erred in determining that the defendant failed to oppose the plaintiffs' motion for summary judgment, it is clear that any efforts to oppose the motion were untimely. Furthermore, it appears from the defendant's appellate argument that any opposition would have focused on arguments that the defendant was entitled to contribution from the other guarantors, instead of arguments disputing the liability to the plaintiffs. Whether the defendant is entitled to contribution from the third-party defendants is a separate issue subject to ongoing litigation that does not require the plaintiffs' participation. Thus, based on the materials in the record appendix, the motion judge did not abuse her discretion by granting the plaintiffs' motion for separate and final judgment pursuant to rule 54(b). O. Ahlborg & Sons, Inc. v. Massachusetts Heavy Indus., Inc., 65 Mass. App. Ct. 385, 392 (2006).
The plaintiffs have requested costs and attorney's fees, presumably under G. L. c. 211A, § 15, and Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). As to costs, we see no reason why they should not be taxed against the defendant pursuant to Mass.R.A.P. 26(a), as amended, 378 Mass. 925 (1979). As to fees and double costs, the request is conclusory and fails to demonstrate either that the appeal was frivolous, in the sense of having no reasonable expectation of success, or brought in bad faith, in the sense of being motivated by malice, an intent to delay, or another improper purpose. Although the defendant's efforts to disturb the decision below are without merit, they were not so egregiously improper, nor so clearly foredoomed to defeat, as to merit an award of damages, i.e., legal fees or double costs.
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Judgment affirmed.
By the Court (Katzmann, Rubin & Fecteau, JJ.),