Opinion
11-P-179
12-29-2011
DAVID L. KISH v. VISION PAYMENT SOLUTIONS, LLC.
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
Vision Payment Solutions, LLC (Vision), appeals from a judgment in favor of David Kish and an order denying its posttrial motions for judgment notwithstanding the verdict, to alter or amend the judgment, and for a new trial. We affirm the denial of Vision's posttrial motions as they were not timely and dismiss its appeal from the judgment for the same reason.
We express no opinion whether the issue of prejudgment interest contested in the parties' briefs is a clerical mistake in the judgment, or one arising from oversight or omission, subject to correction under Mass.R.Civ.P. 60(a), 365 Mass. 828 (1974). Such issues are best resolved below. At oral argument, the parties advised the panel that such a motion is currently pending in the Superior Court.
Under the Massachusetts Rules of Civil Procedure, posttrial motions under rules 50 and 59 must be served '[n]ot later than 10 days after entry of judgment.' Mass.R.Civ.P. 50(b), as amended, 428 Mass. 1402 (1998). See Mass.R.Civ.P. 59(b) and (e), 365 Mass. 827 (1974). Under the Rules of Appellate Procedure, in a civil case, an appeal 'shall be taken by filing a notice of appeal with the
of the lower court within the time allowed by Rule 4.' Mass.R.A.P. 3(a), as amended, 378 Mass. 927 (1979). In turn, Mass.R.A.P. 4 provides that a notice of appeal 'shall be filed . . . within thirty days of the date of the entry of the judgment appealed from,' but 'a timely motion under the Massachusetts Rules of Civil Procedure . . . filed in the lower court' under rule 50(b) or 59 extends the time for appeal, which 'shall run from the entry of the order' disposing of the motion (emphasis supplied). Mass.R.A.P. 4(a), as amended, 430 Mass. 1603 (1999). See Stephens v. Global NAPs, 70 Mass. App. Ct. 676, 680 (2007).
In this case, the untimeliness of Vision's posttrial motions is fatal to its appeal from the judgment because the untimely motions could not serve to extend the time for filing a notice of appeal from the judgment. That the judgment entered on June 25, 2010, and notice of entry of the judgment was mailed to counsel on June 28, 2010, is not open to serious question. See Mass.R.Civ.P. 58(a), as amended, 371 Mass. 908 (1977); Mass.R.Civ.P. 79(a), 365 Mass. 839 (1974). The docket reflects that judgment entered on June 25 and certified copies were mailed to counsel on June 28. See Abbott v. John Hancock Mut. Life Ins. Co., 18 Mass App. Ct. 508, 511 n.6 (1984) (entry of judgment occurs when clerk performs ministerial act of noting the substance of the judgment on the docket). Also present in the record are separate documents, denominated 'Judgment on Jury Verdict' dated June 25, 2010, and 'Notice of Judgment Entry' dated June 28, 2010, each attested by the clerk of court. See Lindor v. McDonald's Restaurants of Mass., Inc., 80 Mass. App. Ct. 909, 910 (2011) ('[J]udgment only exists when written on a separate paper and entered on the docket').
The docket reads: '6/25/2010 [paper No.] 30 Judgment on jury verdict for plaintiff, David Kish vs. defendant, Vision Payments Solutions LLC in amount of $273,000.00 plus interest from 02/19/2008. . . . Certified copies mailed 6/28/2010 . . . .'
Vision served its posttrial motions on July 7, 2010, twelve days after the June 25 entry of judgment. , The motions were late by one day. Thereafter, on September 3, 2010, Vision filed its appeal from the underlying judgment. Because Vision's posttrial motions were themselves untimely, there was no basis for extending Vision's time to appeal from the judgment, and Vision's September 3 notice of appeal was therefore untimely as to the judgment. See Muir v. Hall, 37 Mass. App. Ct. 38, 40-41 (1994). Although Vision's comprehensive notice of appeal was timely insofar as it challenged the August 6 order denying its posttrial motions, we affirm the order for the reason, if no other, that the motions themselves were untimely.
The tenth day after entry of the judgment fell on a legal holiday, Monday, July 5. To be timely, the motions had to be served by the following day, July 6. Mass.R.Civ.P. 6, 365 Mass. 747 (1974).
The posttrial motions were denied on August 6, 2010.
The parties subsequently submitted the posttrial motions pursuant to Rule 9A of the Rules of the Superior Court (2009). Kish's opposition, dated July 16, 2010, included a challenge to the untimeliness of Vision's posttrial motions. At that juncture, if not sooner, Vision should have been alerted to, and could have forestalled, any problem of timeliness in its appeal from the judgment. Indeed, had Vision filed a notice of appeal from the June 25 judgment at that time, its appeal would have been within the thirty-day appeal period.
At worst, as a precautionary matter, Vision might later have been required to file another notice of appeal of the judgment subsequent to the order disposing of its posttrial motions. See Mass.R.A.P. 4(a) (notice of appeal filed before disposition of timely posttrial motion shall have no effect; new notice of appeal must be filed and no additional filing fees shall be required).
Nothing in the record suggests that Vision sought an extension of time for filing its notice of appeal under Mass.R.A.P. 4©, as amended, 378 Mass. 928 (1979), for excusable neglect, or with this court under Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979).
Despite Kish's argument that Vision's motions were not timely, the Superior Court judge concluded, incorrectly and without explanation, that the posttrial motions were timely. He then proceeded to consider, and deny, Vision's motions on their merits. As Kish prevailed below, he may present on appeal any ground previously asserted below in support of the judgment (as this plainly was). He did not need to file a cross appeal because he is not seeking a judgment more favorable than that entered below. See Brear v. Fagan, 447 Mass. 68, 76 n.7 (2006).
In any event, we discern no abuse of discretion or other error in the judge's substantive rulings. We also note that Vision's appellate brief seeks to raise for the first time arguments regarding the divisible nature of the contracts and closing argument that could have been, and were not, properly raised at the trial level or made the subject of its posttrial motions. See Palmer v. Murphy, 42 Mass. App. Ct. 334, 338 (1997); Green v. Brookline, 53 Mass. App. Ct. 120, 128 (2001) (objections, issues, or claims not raised below are waived on appeal).
We reject Vision's contention that the date of entry of judgment set forth in the docket is ambiguous because the same docket entry also reflects that certified copies were mailed to counsel on June 28. There is no ambiguity or discrepancy. The separate documents ('Judgment on Jury Verdict') and ('Notice of Judgment Entry') and the docket establish that judgment entered on June 25 and that certified copies of the Judgment on Jury Verdict and Notice of Judgment Entry were mailed to counsel on June 28. Rule 79 requires only that 'entries shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court' and that '[t]he entry of an order or judgment shall show the date the entry is made.' Mass.R.Civ.P. 79(a). The docket and entries do just that: judgment entered on June 25. There was no need for the clerk to set forth on the docket as a separate entry (paper number) the documents that were mailed to counsel on June 28.
Nothing in Standard Register Co. v. Bolton-Emerson, Inc., 35 Mass. App. Ct. 570, 572 (1993), is to the contrary. There, judgment was rendered on New Year's Eve and the clerk entered judgment on a later date without properly noting the date of entry on the docket. See ibid. Here, the judgment itself bears the date June 25, 2010, the docket reflects that the judgment was entered on June 25, 2010, and there is no reason to believe that the judgment was not entered on that day. We discern no 'procedural tangle' having its origin in any failure of the clerk of court or 'promiscuous use of the [word] 'Judgment" such as was present in Standard Register. See id. at 574.
Order denying posttrial motions affirmed.
Appeal from judgment dismissed.
By the Court (Grasso, Smith & Meade, JJ.), Clerk