Opinion
10-P-2040
04-09-2012
MYSTIC LANDING, LLC v. OMLC, 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
The tenant, OMLC, LLC (OMLC), appeals from two decisions of the Appellate Division of the District Court Department affirming the dismissal of its appeal from a summary process judgment and the allowance of a motion to correct a clerical error in the judgment.
The underlying summary process case concerns an agreement by OMLC to purchase the property at issue from Mystic Landing, LLC (Mystic Landing). The parties also entered into a 'Use and Occupancy Agreement,' which permitted OMLC to use a portion of the land rent free pending completion of the sale. The sale was not consummated. The agreement provided that if the closing did not take place, or if Mystic Valley requested that OMLC vacate, OMLC was to vacate the property. OMLC did not do so, and Mystic Valley commenced the summary process action.
The court, on the parties' cross-filed dispositive motions, ruled that the purchase and sale agreement was clear and unambiguous and, in accordance with its terms, OMLC must vacate the property. Unfortunately, the ensuing judgment replicated a misidentification of the property contained in the complaint. OMLC filed a timely notice of appeal to the Appellate Division, requested a tape of the summary judgment hearing for transcription and notified the court that it was ordering the transcript. However, OMLC failed to file a designation that it was proceeding under rule 8A, 8B, or 8C of the District/Municipal Courts Rules for Appellate Division Appeal, which provide alternative procedures for identifying the appellate record. Each rule requires that a document identifying under which rule the appeal is to proceed be filed and served within a specified period. It is undisputed that OMLC failed to file any such document, nor did it seek leave to do so late pursuant to rule 14. On this basis Mystic Valley moved to dismiss the appeal, which was allowed despite the fact that by that point, the transcript had been completed and filed with the District Court and the parties understood that OMLC was proceeding under rule 8C.
The agreement provided that OMLC could occupy the property until the closing or until Mystic Valley ordered it to vacate. In addition, if the sale did not close as scheduled, OMLC lost its right to occupy the property and must immediately vacate.
OMLC appealed to the Appellate Division, which affirmed, ruling that, because the matter was decided on dispositive motions, OMLC should have elected the expedited appeal process of rule 8A. To the extent the decision could be read to require a party to opt for the rule 8A expedited appeal option, it would appear to be error as nothing in the rule so requires.
However, the remaining reasons given by the Appellate Division are appropriate. Relying on prior Appellate Division case law, it ruled that the failure to file a timely rule 8C designation is a 'serious misstep' for which the 'presumptive penalty' is dismissal of the appeal. It noted that 'absent an appellant's demonstration of extraordinary circumstances, there is generally no abuse of discretion.' This approach seems to be settled law in the Appellate Division, and is consonant with our analogous appellate rules. See Dorrance v. Zoning Bd. of Appeal of N. Attleborough, 7 Mass. App. Ct. 932 (1979). In addition, while the application of the rule appears harsh in light of the efforts of OMLC to obtain the transcript, the point that OMLC failed to cure its error by filing a rule 14(b) motion to enlarge is well taken. Indeed, having failed to file a rule 14(b) motion, the issues of 'good cause' and whether the appeal presents meritorious issues are not before us.
The Appellate Division is also on solid ground in its affirmance of the use of Mass.R.Civ.P. 60(a), 365 Mass. 828 (1974), to correct the judgment. Here, OMLC's place of business was 85-87 Boston Street in Everett. Mystic Valley's property which OMLC sought to buy was described as 'land off Route 99, on Horizon Way f/k/a Chemical Lane, Everett.' The notice to quit properly described the property. However, the summary process complaint mistakenly described the premises as 85-87 Boston Street, although the attachments to the complaint (notice to quit and occupancy agreement) correctly identified the property. When judgment entered it replicated the mistake in the complaint and ordered OMLC to vacate 85-87 Boston Street, property not owned by Mystic Valley and not subject to the summary process action. Approximately seven months later, while OMLC's appeal was pending in the Appellate Division, Mystic Valley filed a motion to correct a clerical error in the judgment pursuant to rule 60(a). The motion was allowed by the District Court judge and the judgment was so amended. OMLC appealed. While that appeal was pending, the Appellate Division's decision affirming the dismissal of OMLC's appeal entered on the District Court docket.
In its latter decision, the Appellate Division first indicated that its affirmance of the dismissal of OMLC's appeal from the judgment rendered the corrected summary process judgment final. We consider the propriety of the use of rule 60(a) to change the description of the property in the summary process judgment.
Under rule 60(a), the court may correct '[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission.' 'Rule 60(a) covers mistakes or errors of the , the court, the jury, or a party.' Reporters' Notes to Mass.R.Civ.P. 60. In resolving a rule 60(a) issue, the court applies two interrelated analyses. It considers 'whether the judgment reflects the intent of the court at the time it was entered; and . . . whether the relief requested is essentially 'clerical' in nature rather than 'substantive' in nature.' Gagnon v. Fontaine, 36 Mass. App. Ct. 393, 396 (1994). Relief was warranted under both analyses.
OMLC concedes in its brief that '[h]ad the summary process complaint correctly identified the premises to be recovered, and had the only error been the recitation in the judgment of an incorrect address, then a Rule 60(a) correction was available.' It seems to argue, citing Gagnon, supra, that a clerical error in a complaint that is later incorporated in a judgment cannot be remedied. However, in Gagnon, the description of the property would have worked a substantive change in the property division judgment. Here, there can be no doubt that the property intended by the court, and as indicated in the attachments to the complaint, to be included in the judgment was the property owned by Mystic Valley, not a property in which it held no interest.
We note also a case, not cited by the parties, permitting correction of a clerical error initiated in a complaint and replicated in the judgment. In Labor v. Sun Hill Indus., Inc., 48 Mass. App. Ct. 369 (1999), the plaintiff misidentified itself in the complaint as a corporation. A default judgment entered for the misidentified plaintiff. Almost two years later, the plaintiff filed a 60(b) motion to amend the judgment, which was allowed. On the defendant's appeal, we held that relief under 60(b) was unavailable as more than one year had expired, but we treated the motion as filed under rule 60(a) and affirmed, holding that rule 60(a) was 'a proper vehicle for correcting the misnomer.' Id. at 372.
Mystic Valley seeks attorney's fees and costs in its brief, based upon a contract provision. Within fourteen days of receipt of the rescript, counsel for Mystic Valley shall submit a verified itemization of its appellate fees and costs -- in this appeal -- supported, wherever possible, by time sheets or summaries of time sheets (specifying the working attorney, the service rendered, its date and duration, and the hourly rate) and by invoices or receipts of disbursements. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Within fourteen days thereafter OMLC may file any opposition to the requested amounts.
The decisions and orders of the Appellate Division dated June 29 and September 23, 2010, are affirmed.
So ordered.
By the Court (Cypher, Mills & Katzmann, JJ.), Clerk