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Franchi Management Co., Inc. v. Flaherty

Appeals Court of Massachusetts, Middlesex

June 21, 2018

PAUL F. FLAHERTY, JR., trustee, & another; PASQUALE FRANCHI, trustee, & others, third-party defendants.

          Heard: January 11, 2018.

          Civil action commenced in the Superior Court Department on August 13, 2009. The case was heard by Kathe M. Tuttman, J., on motions for summary judgment; entry of separate and final judgment was ordered by Bruce R. Henry, J.; and a motion for amendment of the amended judgment was heard by Maynard M. Kirpalani, J.

          Christopher J. Marino (Kenneth J. Mickiewicz also present) for Paul F. Flaherty, Jr.

          John J. Gushue for Franchi Management Company, Inc., & others.

          Present: Rubin, Sacks, & Wendlandt, JJ.

          WENDLANDT, J.

         In this case, we address the timeliness of a notice of appeal from a final judgment that was corrected twice: first, sua sponte to fix a clerical error in the calculation of prejudgment interest, and second, on a motion pursuant to Mass.R.Civ.P. 60(a), 365 Mass. 828 (1974), to correct an additional error in that same calculation. Because neither the sua sponte correction of a clerical error nor the filing (as here) of a rule 60(a) motion beyond ten days from entry of the original judgment has the effect of restarting the time for appeal from that judgment under Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013), we dismiss defendant Paul F. Flaherty, Jr.'s appeal from the original judgment as untimely.[6]


         We briefly set forth the undisputed facts as agreed by the parties in their cross motions for summary judgment, leaving some procedural details for our discussion below. This dispute stems from the failure of the defendants, as trustees of the Patricia Franchi Flaherty 1999 Revocable Trust (trust), to pay plaintiff Michael Franchi (Michael) on a promissory note (note) pursuant to which Michael loaned $750, 000 to his sister Patricia Franchi Flaherty (Patricia).[7] Under the terms of the note, Michael and Patricia agreed that Michael's sole recourse for payment would be from Patricia's ownership and beneficial interests in certain assets, which she had previously transferred to the trust. Patricia died before the initial payment became due, and the trust did not make payments to Michael. The present action, which Michael and the other plaintiffs commenced in Superior Court, [8] followed.

         After a period of discovery, Michael moved for partial summary judgment on count 2 of the second amended complaint, asserting that the court should reach and apply trust assets to satisfy a $750, 000 debt owed to him by Patricia.[9] In their opposition, the defendants conceded liability under the note; they disputed only the amount due to Michael and whether Michael had complied with the notice provisions.[10] The motion judge allowed Michael's motion and ordered the trust to pay the principal balance of the note together with interest, [11] remarking that the defendants did not appear to dispute that Michael's claim was a direct contractual claim against the trust (as opposed to a claim against Patricia's estate) . Pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), Michael moved for entry of final judgment on his claim. The unopposed motion was allowed. The clerk of the Superior Court entered a final judgment on Michael's claim on December 22, 2014 (original judgment). Defendant Paul F. Flaherty, Jr., now appeals.


         Rule 4(a) of the Massachusetts Rules of Appellate Procedure requires an appellant in a civil case to file a notice of appeal "within thirty days of the date of the entry of the judgment appealed from." Mass.R.A.P. 4(a), first par. Here, the defendant purports to appeal from the original judgment, which entered as a final judgment on December 22, 2014.[12] Specifically, on January 11, 2017 -- more than 750 days after the original judgment entered, and nearly two years after the thirty-day deadline for appeal from the original judgment had lapsed on January 21, 2015 -- the defendant filed a notice of appeal from the original judgment. Accordingly, unless an exception applies, the defendant's appeal is not timely.

         Rule 4(a) provides that certain postjudgment motions will alter the time period for the filing of a notice of appeal, such that the thirty-day period will not commence until the entry of the order disposing of the postjudgment motion. Relevant to the present case, rule 4(a) was amended in 2013 to provide as follows:

"If a timely motion under the Massachusetts Rules of Civil Procedure is filed in the lower court by any party ... to alter or amend a judgment under Rule 59 or for relief from judgment under Rule 60, however titled, if either motion is served within ten days after entry of judgment . . . the time for appeal for all parties shall run from the entry ...

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