Abbott v. John Hancock Mut. Life Ins. Co.

• Decision Date: 02 November 1984
• Citation: 468 N.E.2d 632,18 Mass.App.Ct. 508
• Parties: David R. ABBOTT et al. v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY et al.
• Court: Appeals Court of Massachusetts

Page 632

468 N.E.2d 632

18 Mass.App.Ct. 508

David R. ABBOTT et al. v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY et al.

Appeals Court of Massachusetts Suffolk.

Argued June 7, 1983.

Decided Sept. 7, 1984.

Further Appellate Review Denied Nov. 2, 1984.

[18 Mass.App.Ct. 509] Edward S. Rooney, Jr., Boston, for John Hancock Mut. Life Ins. co.

Robert N. Goldstein, Boston, for Leo P. Cavanaugh.

Bernard A. Dwork, Boston (David P. Dwork, Boston, with him), for plaintiffs.

Before GREANEY, C.J., and ARMSTRONG and DREBEN, JJ.

ARMSTRONG, Justice.

The plaintiffs, former employees of Buck Printing Company and potential beneficiaries of the Buck Printing Company Pension Plan and Trust, won a judgment in the Superior Court against Louis P. Mirando and Leo P. Cavanaugh, who were the cotrustees of the pension trust; ¹ Mr. Eugene J. Moran, a New York attorney; and the John Hancock Mutual Life Insurance Company (John Hancock), for a diversion of the assets of the trust to International Scanning Devices, Inc., a corporation through which Mirando, in 1972, acquired the stock of Buck Printing Company. The case is before us on the appeals of John Hancock and Cavanaugh. ²

TIMELINESS OF THE APPEALS

At the threshold lies a procedural problem. The judgment was entered April 14, 1981. On April 24 John Hancock and Cavanaugh filed motions for a new trial under Mass.R.Civ.P. 59, 365 Mass. 827 (1974). ³ The trial judge heard the motions May 6, 1981, and indicated he would take the motions under advisement. Repeated checks of the docket entries during May, June, and July revealed no action on the motions. On July 17 one of the appellants searched through the papers and discovered that each motion bore an inscription that the motion was denied, with the judge's signature and the date May 6, 1981. The denials had not then been docketed, and no notices of denial had been sent to counsel. ⁴

On July 23 and 24, 1981, John Hancock and Cavanaugh each filed a motion for relief from judgment under rule 60(b), 365 Mass. 828 (1974), asking that, in view of the circumstances previously described, the court revise the date of denial on the new trial motions, so as to allow an appeal to be claimed. (Under Mass.R.A.P. 4[a], 378 Mass. 928 [1979], the full time for appeal, in this case thirty days, starts to run from the date of denial of a timely new trial motion.) At some time after July 24 but before August 18, 1981, the denials of the new trial motions were entered on the docket. ⁵ We cannot identify the date more precisely because the date assigned to them was May 6, 1981, the date that the judge denied the motions. ⁶

John Hancock's and Cavanaugh's motions for relief from judgment were forwarded to the trial judge; but he was a District Court judge who had sat on the cases by assignment, and questions apparently arose as to his then authority to act on the motions. Like motions were filed in November, indicating that the trial judge had approved the concept of the motions, and they were allowed on November 19, 1981, by a judge of the Superior Court. The orders specified that date as the date of denial of the new trial motions. The appeals were filed within thirty days thereafter.

The plaintiffs contend that the judge of the Superior Court was without power to redate (in essence) the denial of the motions for new trial so as to revive appellate rights. The contention is founded on Mass.R.A.P. 4(c), as amended, 378 Mass. 929 (1979), which expressly limits the authority of the trial court to "extend the time for filing the notice of appeal by any party" to "a period not to exceed thirty days from the expiration of the time otherwise prescribed by this rule." The time so prescribed was thirty days from the order denying the motion for a new trial. Mass.R.A.P 4(a)(4). As the rule is presently worded, the thirty days runs from the date the order is made rather than from the date of its entry. Feltch v. General Rental Co., 383 Mass. 603, 612-613, 421 N.E.2d 67 (1981). ⁷ Thus, the time for filing the notice of appeal as of right expired June 5, 1981, and the period in which the trial judge might have authorized a late appeal under rule 4(c) expired July 6, 1981 (July 5 being a Sunday). The parties, of course, had not learned of the order and would not learn of it for another two weeks.

The Feltch case holds that appellate rule 4(c) is to be read in accord with Federal precedents. Federal cases have long held that, as a general rule, a motion for relief from judgment under rule 60(b) may not be used to revive appellate rights after the expiration of the extended time limit specified in appellate rule 4(a). Many of these cases, cited in the margin, ⁸ have dealt with neglect to file a timely notice of appeal due to the clerk's failure to notify the parties of the entry of judgment. In this situation the general rule seems plainly mandated by Mass.R.Civ.P. 77(d), 365 Mass. 838 (1974), which, like its Federal counterpart, says that "[l]ack of notice of the entry [of a judgment and other order] by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4 of the ... Rules of Appellate Procedure." ⁹ Thus, if this were a simple case of reliance by the parties on the clerk's duty to send notice of orders, neglecting their obligation to check the docket entries periodically, we would in accordance with the clear mandate of the rules and the great weight of Federal precedent conclude that the trial court erred in allowing the defendants' motions for relief from judgment.

There is, however, an exception to the general rule recognized in the Federal cases: namely, where the appellant has in fact consulted the docket entries but has nevertheless failed to learn of the judgment or other order appealed from due to clerical mishap. Thus, in Rodgers v. Watt, 722 F.2d 456 (9th Cir.1983), the attorney's secretary checked the docket periodically to determine whether an order had been entered after hearing. The last docket entry was that of the hearing itself, with the notation that the matter had been taken under advisement by the judge. In fact, the judge had entered an order two days after the hearing, but (1) no notice had been sent to counsel, and (2) the order was docketed out of sequence, prior to the docket entry showing the matter to be under advisement. In Fidelity & Deposit Co. v. USAFORM Hail Pool, Inc., 523 F.2d 744 (5th Cir.1975), the attorney over a six-month period telephoned the clerk periodically to ascertain whether, although notice had not been received, judgment might have entered. "The court, through a member of its staff, informed him that no further inquiry should be made--because the clerk would notify the parties of the judgment when it was entered." 523 F.2d at 748. Shortly afterward the judgment was entered, and the clerk neglected to inform the parties. In both cases the parties did not actually learn of the entry of the judgment or other order until after the period afforded for extensions under appellate rule 4(a) had expired. In Smith v. Jackson Tool & Die, Inc., 426 F.2d 5 (5th Cir.1970), both parties agreed to a delay in the entry of judgment until after the appellant's counsel had returned from an extended trip abroad. They so informed the judge. Before the attorney's return, the judge approved judgment in a form which had been proposed by the opposing attorney. The clerk docketed the judgment but failed to send notice to the parties. After his return, counsel for the appellant, unaware of the entry of judgment, sent the judge objections and suggestions with respect to the form of judgment proposed by the opponent. The opponent, also unaware of the earlier entry of judgment, replied to the objections. The court did not respond to the letters, and the attorneys, as a result, did not learn of the entry of judgment until after the expiration of the additional thirty-day period within which the judge might have authorized a late appeal under appellate rule 4(a). In each of these three cases it was held that the mistakes by the court, going beyond a mere failure by the clerk to notify the attorneys of the entry of judgment (or other order), justified the court's vacating the entry of the judgment or order on a motion under rule 60(b)(1) or (6) and reentering it so as to revive appellate rights. Emphasis was given to the facts that the appellant had acted promptly on discovering the error and that the opponent had not been prejudiced (typically having known that an appeal would be claimed and having shared the misapprehension that judgment was not yet entered). See generally 6A Moore, Federal Practice Par. 60.03 (1983); Calkins, The Emerging Due Diligence Standard for Filing Delayed Notice of Appeal in Federal Courts, 19 Willamette L.J. 609, 614 (1983).

Motions under rule 60(b) are typically addressed to the discretion of the judge, Berube v. McKesson Wine & Spirits Co., 7 Mass.App. 426, 435, 388 N.E.2d 309 (1979), and it may seem anomalous, in light of the jurisdictional character of a timely appeal, Browder v. Director, Dept. of Corrections of Ill. 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978), that the trial judge is held to have a discretionary power to extend the deadline indirectly after the time when he is expressly made powerless (by appellate rule 4[c] ) to do so directly. The cases so holding may stem in part from the comparative rigidity of the Federal rules on the subject of late appeals. Federal Rule of Appellate Procedure 26(b) forecloses a circuit court of appeals from enlarging the time for filing a notice of appeal, Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 403, n. 3, 74 L.Ed.2d 225 (1983), while the corresponding Massachusetts rule, Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979), authorizes a single justice of an appellate court to enlarge the time...