Global Naps Inc v. Others
| Decision Date | 09 August 2010 |
| Docket Number | SJC-10586. |
| Parties | GLOBAL NAPs, INC.v.Martha AWISZUS & others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John J. Barter, Boston, (Evan M. Fray-Witzer with him), for the plaintiff.
Andrew J. Goodman, of New York (James Freeman, of New York, & David J. Kerman, Boston, with him), for Jackson Lewis, LLP, & another.
Katherine H. Marques, for Martha Awiszus & others.
The following submitted briefs for amici curiae:
Beverly I. Ward, Boston, for Massachusetts Commission Against Discrimination.
Ben Robbins & Martin J. Newhouse, Boston, for New England Legal Foundation & another.
Nina Joan Kimball, Boston, for Massachusetts Employment Lawyers Association & others.
Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.
In the present action, Global NAPs, Inc. (Global), a telecommunications company, seeks to recover damages from its former attorneys, Martha Awiszus and David Kerman, and their respective law firms, Winokur, Serkey & Rosenberg, P.C. (Winokur), and Jackson Lewis, LLP (Jackson Lewis) (collectively, the defendants),2 for negligence, breach of contract, and loss of chance. The claims set forth in Global's three-count complaint arose from the defendants' failure to file a timely appeal from a jury verdict in excess of $1 million against Global in an underlying employment discrimination case (the Stephens litigation). The defendants asserted counterclaims against Global for breach of contract and quantum meruit, and they asserted cross claims against each other for indemnification and contribution. Global then filed a motion for partial summary judgment, 3 and the defendants filed a cross motion for summary judgment. On April 1, 2009, a judge in the Superior Court allowed the defendants' motion and dismissed Global's complaint. In response to the defendants' subsequent motion for relief from judgment pursuant to Mass. R. Civ. P. 60, 365 Mass. 828 (1974), pertaining to the defendants' asserted counterclaims, the judge allowed the motion, vacated the April 1, 2009, judgment, and directed entry of a separate and final judgment on May 7, 2009, pursuant to Mass. R. Civ. P. 54(b), 365 Mass. 820 (1974), dismissing Global's complaint and preserving the defendants' counterclaims. Global appealed, and we granted its application for direct appellate review. We now reverse and remand for further proceedings in accordance with this opinion.4
1. Background. The procedural history of the Stephens litigation is extensive, particularly with respect to the postjudgment period. For simplicity's sake, we relate only so much as necessary to understand the specific issues raised.
Beginning in May, 1999, Global employed Sandy Stephens as a housekeeper for its president, Frank Tiberius Gangi. Late that same year, Stephens informed Gangi that she was pregnant. Around June 30, 2000, Stephens told Gangi and her supervisor, Janet Lima, that her last day of work before maternity leave would be July 14, 2000. According to Stephens, Lima told her that if she gave birth by cesarean section, then she could extend her leave until October 2, 2000. Lima also told Stephens that her maternity leave would be unpaid. Stephens gave birth on August 2, 2000, by cesarean section, and she so informed Lima. In anticipation of her return to work, Stephens called Lima on September 27, 2000, and learned that she had been fired from her job.
Stephens commenced an action in the Superior Court against Global and Gangi, alleging that they had violated the Massachusetts Maternity Leave Act (MMLA), G.L. c. 149, § 105D, by terminating her from employment while she was on maternity leave.5 Martha Awiszus of Winokur represented Global and Gangi in the Stephens litigation. The case proceeded to trial on July 19, 2004. At the close of Stephens's case, and again at the conclusion of all of the evidence, Global and Gangi moved for a directed verdict, arguing that Stephens was not entitled to the protections afforded by the MMLA because her maternity leave had exceeded eight weeks. The motions were denied. On July 23, 2004, a jury returned special verdicts against Global for compensatory damages in the amount of $1,366,165 and punitive damages in the amount of $1 million, and against Gangi, for aiding and abetting Global, in the amount of $136,000. Global and Gangi advised Awiszus that they wanted to appeal from the jury verdicts.
Global and Gangi filed a timely motion for judgment notwithstanding the verdict (judgment n.o.v.) or, in the alternative, for a new trial or remittitur. According to Awiszus, shortly after filing that motion, she received a telephone call from Global's general counsel informing her that Global had hired appellate counsel, Kerman of Jackson Lewis, and that she was to assist him in any way that Kerman requested. In a detailed memorandum of decision and order dated February 17, 2005, the judge in the Stephens case denied the motion for judgment n.o.v., with the exception of the claim brought against Gangi for aiding and abetting Global, which was allowed.6 The judge also denied the motion for a new trial as to liability, but allowed the motion as to the issue of damages unless Stephens accepted a remittitur within thirty days. On March 11, 2005, Stephens filed a notice of acceptance of remittitur of compensatory damages in the amount of $1,012,305.12, and of zero punitive damages. Global then filed a motion for partial reconsideration of the court's order with respect to the determination of Stephens's damages for front pay and emotional distress, which the judge denied on April 6, 2005.
On April 19, 2005, Global and Gangi filed a notice of appeal. They also filed a motion for an extension of time, pursuant to Mass. R.A.P. 4(c), as appearing in 378 Mass. 928 (1979), “to the extent such motion [was] deemed necessary.” 7 Stephens filed a motion to strike the appeal as untimely. In a memorandum of decision and order dated July 28, 2005, the judge determined that the notice of appeal was untimely, denied the motion to extend the filing deadline, and stated that Global and Gangi had not demonstrated excusable neglect for the late filing in light of well-known case law holding that the filing of a motion for reconsideration does not toll the time period for filing a notice of appeal. See Curly Customs, Inc. v. Pioneer Fin., 62 Mass.App.Ct. 92, 96-97, 814 N.E.2d 1176 (2004); Selby Assocs. v. Boston Redevelopment Auth., 27 Mass.App.Ct. 1188, 1189-1190, 543 N.E.2d 28 (1989). The judge allowed Stephens's motion to strike the appeal. On October 25, 2005, a corrected judgment in the amount of $1,322,071.78 entered for Stephens pursuant to Mass. R. Civ. P. 58(a), as amended, 371 Mass. 908 (1977).
Global filed timely notices of appeal from the judge's July 28, 2005, order denying its motion for an extension of time pursuant to Mass. R.A.P. 4(c), and from the October 25, 2005, corrected judgment. The Appeals Court dismissed Global's appeal from the judgment in Stephens's favor on the ground that it was untimely, but considered arguments pertaining to certain damages issues that had been raised in postjudgment motions, and remanded the case for recomputation of the front pay award to reflect present value and for correction of the remittitur amount. See Stephens v. Global NAPs, 70 Mass.App.Ct. 676, 680-687, 876 N.E.2d 452 (2007). This court denied Global's application for further appellate review. See Stephens v. Global NAPS, 450 Mass. 1106, 878 N.E.2d 567 (2007). After remand, a revised judgment entered in the Superior Court on June 6, 2008, against Global and in favor of Stephens, and on September 15, 2008, execution on the judgment issued in the amount of $1,157,839.91.
2. Substantive merits of the Stephens litigation. The basis of Global's professional negligence action against the defendants is Global's contention that it would have prevailed in the Stephens litigation if the defendants had filed Global's appeal in a timely manner. Accordingly, we begin by considering the merits of that appeal.8 Global argues that Stephens was not entitled to the protections afforded by the MMLA because she was absent from work for longer than eight weeks. We agree.
The MMLA provides that a female employee who has completed her employer's initial probationary period, or, if there is no such probationary period has been employed full time by the same employer for at least three consecutive months, and “who is absent from such employment for a period not exceeding eight weeks for the purpose of giving birth ..., and who shall give at least two weeks' notice to her employer of her anticipated date of departure and intention to return, shall be restored to her previous, or a similar, position with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of her leave” (emphasis added). G.L. c. 149, § 105D. Such eight-week period, statutorily referred to as “maternity leave,” may be with or without pay at the discretion of the employer. Id. The MMLA further provides that nothing in § 105D “shall be construed to affect any bargaining agreement or company policy which provides for greater or additional benefits than those required under this section.” Id. The Massachusetts Commission Against Discrimination (MCAD) is responsible for enforcing the MMLA because the Legislature has determined that it shall be an “unlawful practice” for an employer “to refuse to restore certain female employees to employment following their absence by reason of a maternity leave taken in accordance with [ G.L. c. 149, § 105D,] or to otherwise fail to comply with the provisions of said section” (emphasis added). G.L. c. 151B, § 4(11A). See G.L. c. 151B, § 3(6) ().
Pursuant to G.L. c. 151B, § 3(5),9 the Legislature has empowered MCAD to promulgate rules and...
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