O'Connor v. City Manager of Medford

• Court: Appeals Court of Massachusetts
• Writing for the Court: DREBEN
• Citation: 389 N.E.2d 440,7 Mass.App.Ct. 615
• Decision Date: 22 May 1979
• Parties: Francis A. O'CONNOR v. CITY MANAGER OF MEDFORD.

Page 440

389 N.E.2d 440 7 Mass.App.Ct. 615 Francis A. O'CONNOR
v.
CITY MANAGER OF MEDFORD. Appeals Court of Massachusetts,
Middlesex. Submitted Feb. 14, 1979.
Decided May 22, 1979.

Page 441

[7 Mass.App.Ct. 616] David Berman, Medford, for plaintiff.

Daniel F. Riley, Medford, for defendant.

Before [7 Mass.App.Ct. 615] GRANT, ROSE and DREBEN, JJ.

[7 Mass.App.Ct. 616] DREBEN, Justice.

In this action brought under G.L. c. 31, § 46A (as in effect prior to St.1978, c. 393, § 11), the trial judge, upon a statement of agreed facts, ruled that the defendant, the city manager of Medford, had acted in violation of G.L. c. 31, § 43, as then in effect, in abolishing the plaintiff's position as head of the redevelopment division of the city's department of community affairs. The judge also ruled that the city council of Medford, by enacting an ordinance denying civil service benefits to the plaintiff and others, had exceeded its authority. A judgment remanding the matter to the defendant to conduct proceedings in conformity with G.L. c. 31, § 43, was entered on May 9, 1977. The plaintiff moved under Mass.R.Civ.P. 59(e), 365 Mass. 828 (1974), for amendment of the judgment so as to reinstate the plaintiff to his former position with back pay, and to delete the requirement of further proceedings. The motion to amend was denied on May 20, 1977, and the plaintiff appeals from that denial.

The plaintiff argues that our review is limited to the denial of his motion to amend the judgment, and that in the absence of a cross appeal, we cannot review the judgment of May 9, or modify it, even if erroneous. We disagree and remand the case for dismissal of the action.

1. The denial of a motion under rule 59 is normally reviewable only in conjunction

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with an appeal of the judgment to which it relates, Forte v. Muzi Motors, Inc., 5 Mass.App. ---, --- n.4 ^A, 369 N.E.2d 1030 (1977), and cases cited. 6A Moore's Federal Practice § 59.15(1) and (4) (2d ed. 1974). 11 Wright & Miller, Federal Practice and Procedure § 2818 (1973). It is clear that had the plaintiff wanted us to review the judgment, he could have achieved that [7 Mass.App.Ct. 617] result even if he had technically only appealed from the denial of the rule 59 motion. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Livergood v. S. J. Groves & Sons Co., 361 F.2d 269 (3d Cir. 1966). Peabody Coal Co. v. Local Union Nos. 1734, 1508 and 1548, UMW, 484 F.2d 78 (6th Cir. 1973).

The plaintiff obviously does not wish us to review the favorable rulings of the lower court, and argues that a party who fails to appeal is not entitled, as of right, to more favorable treatment than was given in the court below. M. L. Shalloo, Inc. v. Ricciardi & Sons Constr., Inc., 348 Mass. 682, 684, 205 N.E.2d 239 (1965). He claims that we are without jurisdiction to modify the judgment, that the Federal courts uniformly hold that, in the absence of a cross appeal, the judgment of a lower court even if erroneous will not be disturbed, and urges, citing Rollins Environmental Services, Inc. v. Superior Court, 368 Mass. 174, 179-180, 330 N.E.2d 814 (1975), that we are bound by the Federal precedents.

However, the rule cited is a rule of practice and not a limitation on the powers of appellate courts. Langnes v. Green, 282 U.S. 531, 538, 51 S.Ct. 243, 75 L.Ed. 520 (1931). In appropriate circumstances, the rule will not be followed. This is true in the Federal courts. Tug Raven v. Trexler, 419 F.2d 536, 548 (4th Cir. 1969), cert. denied sub nom. Crown Central Petroleum Corp. v. Trexler, 398 U.S. 938, 90 S.Ct. 1843, 26 L.Ed.2d 271 (1970). Arnold's Hofbrau, Inc. v. George Hyman Const. Co., Inc., 156 U.S.App.D.C. 253, 258, 480 F.2d 1145, 1150 (1973). United States v. United States Steel Corp., 520 F.2d 1043, 1052 (5th Cir. 1975), cert. denied sub nom. United States Steel Corp. v. United Steelworkers of America, AFL-CIO and sub nom. United Steelworkers of America, AFL-CIO v. Ford, 429 U.S. 817, 97 S.Ct. 61, 50 L.Ed.2d 77 (1976). Hysell v. Iowa Pub. Serv. Co., 559 F.2d 468, 476 (8th Cir. 1977). See In Re Barnett, 124 F.2d 1005 (2d Cir. 1942); 9 Moore's Federal Practice § 204.11(5) (2d ed. 1975); 15 Wright, Miller, & Cooper, Federal Practice and Procedure § 3904 (1976). ¹ And, it is [7 Mass.App.Ct. 618] equally true in Massachusetts. C. J. Hogan, Inc. v. Atlantic Corp., 332 Mass. 322, 327-328, 124 N.E.2d 905 (1955). See also Beacon Oil Co. v. Maniatis, 284 Mass. 574, 577-578, 188 N.E. 386 (1933); Royal Indem. Co. v. Perry, 296 Mass. 149, 154, 4 N.E.2d 809 (1936); Cooperstein v. Bogas, 317 Mass. 341, 345, 58 N.E.2d 131 (1944); Schneider v. Armour & Co., 323 Mass. 28, 31, 80 N.E.2d 34 (1948).

We believe this case presents the compelling circumstances in which an appellate court can and should correct an erroneous judgment in the absence of a cross appeal. We therefore do not reach the question whether a denial of the rule 59(e) motion can be appealed alone and treat the plaintiff's appeal as bringing with it the May 9 judgment. Carter v. Empire Mut. Ins. Co., 6 Mass.App. ---, --- n.3 ^B, 374 N.E.2d 585 (1978). Maryland Tuna Corp. v. MS Benares, 429 F.2d 307, 317-318 (2d Cir. 1970).

In this action the...