Heard: January 11, 2018.
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.
Christopher J. Marino (Kenneth J. Mickiewicz also present)
for Paul F. Flaherty, Jr.
J. Gushue for Franchi Management Company, Inc., & others.
Present: Rubin, Sacks, & Wendlandt, JJ.
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
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). 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,  followed.
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. 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. The motion judge allowed Michael's
motion and ordered the trust to pay the principal balance of
the note together with interest,  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
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. 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.
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
"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 ...