Ben v. Schultz

• Decision Date: 24 September 1999
• Docket Number: No. 98-P-132,98-P-132
• Citation: 716 N.E.2d 681,47 Mass.App.Ct. 808
• Court: Appeals Court of Massachusetts
• Parties: Sheri BEN v. Gordon N. SCHULTZ.

Page 681

716 N.E.2d 681

47 Mass.App.Ct. 808

Sheri BEN v. Gordon N. SCHULTZ.

No. 98-P-132.

Appeals Court of Massachusetts,

Suffolk.

Argued May 19, 1999.

Decided Sept. 24, 1999.

Gordon N. Schultz, pro se.

Richard D. Vetstein, Boston, for the plaintiff.

Present: KASS, PORADA, & LENK, JJ.

LENK, J.

Gordon Schultz appeals from decisions of a single justice of this court dismissing as untimely an appeal brought by Schultz pursuant to G.L. c. 231, § 6G, and denying Schultz's subsequent motions for reconsideration and enlargement of time. Schultz contends in essence that the § 6G appeal was timely because the ten-day appeal period triggered by receipt of the trial court's decision on a motion brought under G.L. c. 231, § 6F, was stayed by virtue of Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974), during the pendency of a motion for reconsideration of the § 6F decision which Schultz brought in the trial court. We affirm the decisions of the single justice.

Background. Schultz's appeal is the latest episode of a long-simmering controversy involving a series of lawsuits among various parties over a period of sixteen years concerning the right, title, and interest to a certain condominium unit in Boston. A Land Court judge granted Schultz's summary judgment motion in plaintiff-appellee Sheri Ben's suit to clear title to the unit. The trial judge concluded that the issues Ben raised were compulsory counterclaims not brought in a previous suit and were therefore precluded by principles of res judicata. Judgment entered on that decision on February 6, 1997.

Eight months later, on October 24, 1997, well after the period when Ben could have brought an appeal, Schultz, an attorney appearing pro se, filed a postjudgment motion for attorney's fees and sanctions under G.L. c. 231, § 6F, and Mass.R.Civ.P. 11, 365 Mass. 753 (1974). The trial judge denied the motion on November 10, 1997, concluding that he did not find Ben's action to have been "wholly insubstantial, frivolous and not advanced in good faith." On November 17, 1997, Schultz filed a motion to reconsider that order. Reconsideration was denied on December 5, 1997.

Schultz received notice of denial of his motion to reconsider by mail on December 8, 1997. He filed a notice of appeal pursuant to G.L. c. 231, § 6G, on December 16, 1997. That appeal was dismissed as untimely by the single justice on December 31, 1997. On January 5, 1998, Schultz filed two motions, one captioned a "Motion to Reconsider and Vacate Order Dismissing Appeal and to Reinstate Appeal," the other a "Motion to Enlarge Time to File Notice of Appeal Pursuant to Mass.R.App.P. 14(b)." Each was denied by the single justice on January 7, 1998. On January 9, 1998, Schultz timely filed his appeal from those three orders.

Discussion. Schultz filed in the trial court a postjudgment motion under G.L. c. 231, § 6F, ¹ which provides, in part for an award of counsel fees, costs and expenses upon "a separate and distinct finding" that a claim or defense on which a judicial determination has been made is "wholly insubstantial, frivolous and not advanced in good faith." Appeal from a decision concerning a § 6F motion is pursuant to § 6G, ² which prescribes an expedited process requiring notice of appeal to be filed within ten days after receiving notice of that decision.

Schultz did not file an appeal from the trial judge's denial of his § 6F motion within ten days after receiving notice of that decision. Instead, within ten days of receiving the denial of his § 6F motion, Schultz filed in the trial court a motion to reconsider that decision. He received notice that the motion for reconsideration was denied on December 8, 1997, and filed a notice of appeal to the single justice of this court pursuant to § 6G eight days later on December 16, 1997. Only if the ten-day period set forth in § 6G were stayed by virtue of the pendency of the motion for reconsideration in the trial court would Schultz's appeal be timely.

Schultz contends that his motion to reconsider was a timely motion to alter or amend the judgment under Mass.R.Civ.P. 59(e) and, therefore, stayed the appeal period pursuant to Mass.R.A.P. 4(a), as amended, 395 Mass. 1110 (1985). In order for Schultz's motion to reconsider the denial of his § 6F motion to be a rule 59(e) motion, and to stay the statutory appeal period of § 6G, that denial must be a judgment within the scope of rule 59(e). Rule 54(a) of the Massachusetts Rules of Civil Procedure, 365 Mass. 820 (1974), defines "judgment" as "the act of the trial court finally adjudicating the rights of the parties affected by the judgment." Osborne v. Biotti, 404 Mass. 112, 114, 533 N.E.2d 1341 (1989). The question we must resolve on appeal implicates whether the trial judge's denial of the § 6F motion was such an act.

Schultz argues that Manzaro v. McCann, 401 Mass. 880, 519 N.E.2d 1337 (1988), is controlling. In Manzaro, the defendant-tenant in a summary process action brought pursuant to G.L. c. 239 counterclaimed under both G.L. c. 186, §§ 14 and 18, and G.L. c. 93A, and was awarded attorney's fees based on findings of violations of those statutes. The landlord did not file a notice of appeal within the ten-day period prescribed by G.L. c. 239, § 5, but instead timely filed a rule 59(e) motion to alter or amend the judgment, apparently as to those aspects of the judgment that awarded the tenant relief on her counterclaims. The rule 59(e) motion was denied and, within ten days of entry of that decision, the landlord filed a notice of appeal from the judgment awarding damages on the counterclaims. The Supreme Judicial Court held that the landlord's motion to alter or amend the judgment stayed the statutory appeal period and that the landlord's appeal was timely. ³ Id. at 882, 519 N.E.2d 1337.

Manzaro does not control the result here for several reasons. First, unlike Manzaro, where the landlord filed a motion to alter or amend a judgment which itself included an award of counsel fees, Schultz's motion to reconsider the denial of his G.L. c. 231, § 6F, motion was not a motion to alter or amend any part of the judgment in the underlying case. The § 6F motion had not been asserted in the underlying action either as an affirmative defense or as a counterclaim but was filed eight months after final judgment had entered, well outside the ten-day period set forth in rule 59(e), and well after the appeal period had run.

Second and more importantly, in Manzaro, the judgment itself contained an award of damages, including counsel fees, expressly allowed in the same statutes (G.L. c. 186, §§ 14, 18, and G.L. c. 93A) that establish the proscribed acts giving rise to liability. Appeal was from the entirety of the judgment and was to a panel of the appellate court. Schultz, in contrast, moved for attorney's fees under G.L. c. 231, § 6F. Appeal from the allowance or denial of such a motion is governed by the provisions of G.L. c. 231, § 6G, which states that, "if the matter arises in the superior, land, housing or probate court, the appeal shall be to the single justice of the appeals court." The mechanism devised by the Legislature for appeals from actions on § 6F motions (which can be asserted either during the course of litigation or following entry of judgment) is one that is separate and apart from the appeal of the judgment in the underlying litigation. "The appeal from the judgment, which comes before a panel, affords no review of an award of attorney's fees under § 6F." Bailey v. Shriberg, 31 Mass.App.Ct. 277, 283, 576 N.E.2d 1377 (1991). While an award of counsel fees under § 6F may be entered as part of the judgment (not the case here), the appeal as to the findings and fee award made under § 6F is not to the full panel of the appellate court which will consider the remainder of the judgment but rather to a single justice. See id. at 283-284, 576 N.E.2d 1377; Graves v. Hutchinson, 39 Mass.App.Ct. 634, 645, 659 N.E.2d 1212 (1996). The period in which the appeal of the remainder of the judgment may be taken is set forth in Mass.R.A.P. 4(a) and is not restricted to the shorter period set forth in G.L. c. 231, § 6G.

The language of Mass.R.Civ.P. 59(e) is substantially the same as that of Fed.R.Civ.P. 59(e). "Where there is an identity of the language and no compelling reason to do otherwise, our practice is to adhere to judicial constructions of the Federal rule in construing our similar State rule." Attorney Gen. v. Brockton Agric. Soc., 390 Mass. 431, 434 n. 3, 456 N.E.2d 1130 (1983), citing Rollins Envtl. Servs., Inc. v. Superior Court, 368 Mass. 174, 179-180, 330 N.E.2d 814 (1975). We do well in this context to examine how Fed.R.Civ.P. 59(e) has been applied to motions for attorney's fees under Federal law.

The Supreme Court has held that, "as a general matter, at least, we think it indisputable that a claim for attorney's fees is not part of the merits of the action to which the fees pertain." Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988). The Court affirmed and expanded the application of its previous holding that " 'a request for attorney's fees under [42 U.S.C.] § 1988 raises legal issues collateral to' and 'separate from' the decision on the merits." Id. at 200, 108 S.Ct. 1717, quoting from White v. New Hampshire Dept. of Employment Sec., 455 U.S. 445, 451-452, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982).

In reaching that decision, the White Court observed that § 1988 provides for awards of attorney's fees only to prevailing parties, and, regardless of when they are requested, the inquiry into such an award may not commence until the decision on the merits has been made. Similarly, a motion for fees under G.L. c. 231, § 6F, may not commence until there has been "a finding, verdict, decision, award, order or judgment" on the disputed claim or defense, presumably in favor of the party against whom it was made. The Court also noted that "the...