Lewis v. Emerson

• Decision Date: 22 March 1984
• Citation: 391 Mass. 517,462 N.E.2d 295
• Parties: Marvin C. LEWIS et al. 1 v. Michael W.C. EMERSON et al., trustees 2 (and a consolidated case 3 .
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 295

462 N.E.2d 295

391 Mass. 517

Marvin C. LEWIS et al. ¹ v. Michael W.C. EMERSON et al., trustees ² (and a consolidated case ³.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Dec. 7, 1983.

Decided March 22, 1984.

Irene Dwyer Emerson, Winthrop, for Michael W.C. Emerson & another.

Edmund E. Fleming, Boston (Karen R. Galat, Boston, with him), for Marvin C. Lewis & another.

John L. Murphy, III, Winthrop, for Louise I. Shaw.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

NOLAN, Justice.

These cases, consolidated below, are before us following allowance of the Emersons' application for further appellate review. Shaw v. Emerson, 15 Mass.App.Ct. 1104, 451 N.E.2d 1166 (1983).

The principal reason for our granting further appellate review in these cases is that the Appeals Court dismissed the appeal in the Lewis case because no final judgment had been entered by the clerk pursuant to Mass.R.Civ.P. 58(a), as amended, 371 Mass. 908 (1977), ⁴ and affirmed the judgment in the other case because of the absence of argument as that is required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). As we have not previously had an opportunity to discuss at length the "separate document" requirement of rule 58(a), we take this occasion to do so.

The record before us indicates that on June 25, 1981, the clerk entered on the docket of the Lewis case the judge's findings of fact, rulings of law, and judgment, pursuant to Mass.R.Civ.P. 58(a), and sent notice to the parties pursuant to Mass.R.Civ.P. 77(d), as amended, --- Mass. --- (1983). The judge's findings of fact, rulings of law, and judgment is an eight page document which has subheadings delineating the topics. The section pertaining to "Judgment" recites that "[i]t is hereby ordered and adjudged" and goes on to set forth the disposition of the action in three numbered paragraphs.

Apparently the Appeals Court was of the view that this document's format was insufficient to meet the "separate document" requirement of rule 58(a) because the "judgment" itself was not presented on a separate piece of paper. ⁵ A literal reading of the rule supports this technical view. However, the purpose of the "separate document" and docket entry requirements is to clarify the time from which post-judgment action shall be commenced. See Reporters' Notes to Mass.R.Civ.P. 58, Mass.Ann.Laws, Rules of Civil Procedure at 550 (Law Co-op. 1982) (rule's aim is to ascertain the exact judgment date, important for purpose of post-trial motions and appeals). Inasmuch as clarity and certainty are the goals, some commentators have noted, in another context, that "[s]o long as the judgment is visually distinct ... (that is, so long as the heading and typography clearly show the reader the separate nature of the judgment)," the rule's purpose has been met. J.W. Smith and H.B. Zobel, Rules Practice 432 (1977).

Although not binding on this court, it is useful to note that the United States Supreme Court has retreated from its view that rule 58(1) of the Federal Rules of Civil Procedure "must be mechanically applied in order to avoid new uncertainties as to the date on which a judgment is entered." United States v. Indrelunas, 411 U.S. 216, 222, 93 S.Ct. 1562, 1565, 36 L.Ed.2d 202 (1973). The Court now posits that "it could not have been intended that the separate-document requirement of Rule 58 be ... a categorical imperative ...." Bankers Trust Co. v. Mallis, 435 U.S. 381, 384, 98 S.Ct. 1117, 1119, 55 L.Ed.2d 357 (1978). In Bankers Trust Co., the Court said that the "separate-document requirement was ... intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment ... only to have the appellate court announce later that an earlier document ... had been the judgment and dismiss the appeal as untimely." Id. at 385, 98 S.Ct. at 1120. The Court criticized the procedural circularity which would ensue if an appellate court were required, in the absence of a separate document, to dismiss the appeal, whereupon a lower court clerk would enter a separate judgment, thus paving the way for commencing the appellate process in a "timely" manner. This rigid view, the Court noted, would mean "[w]heels would spin for no practical purpose." Id.

The posture of the present case illustrates a waste of effort which our courts, as well as the Federal courts, cannot condone. We hold today that where, as in this case, a "judgment" is visually distinct from other parts of the document in which it is contained, such that no confusion can exist concerning its import, and the "judgment" is noted on the court's docket, the requirements of rule 58(a) will be considered met. Although the better practice calls for the preparation of a separate document of judgment, it is not fair to prevent the parties' exercise of their posttrial and appellate rights on the basis of clerical niceties, for to do so would erode the principle that procedural rules "be construed to secure the just, speedy, and inexpensive determination of every action." Mass.R.Civ.P. 1, as amended, --- Mass. --- (1982). This principle is especially important where the parties have little, if any, control over the manner in which clerks perform their duties.

Additionally, the Appeals Court affirmed the judgment in the Shaw case because of the Emersons' failure to present "argument" within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). We disagree with this determination. It should be noted that the two cases (Lewis v. Emerson and Shaw v. Emerson ) were consolidated for trial and for appeal. The Emersons were required to file only one brief (in fact, they also filed a reply brief in the Appeals Court). The Emersons' brief contained arguments, with appropriate citations to authority, in support of their appeal on all the issues. That an appellate court might find them unpersuasive does not mean that there has been neglect of the duty to assist the court in its determination of the merits. See Commonwealth v. LeBlanc, 373 Mass. 478, 493, 367 N.E.2d 846 (1977). We turn now to the issues presented.

This litigation was commenced by the Lewises to compel conveyance of property located at One Goodwin Place, Boston, held in trust by the Emersons, and by Shaw to recover a brokerage fee in connection with the sale of the One Goodwin Place property. We briefly summarize the findings of fact made by the trial judge, which findings will stand unless clearly erroneous. Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974).

Michael W.C. Emerson and Irene Dwyer Emerson, surviving trustees and sole beneficiaries of One Goodwin Place Realty Trust, entered into a written agreement with Louise Shaw in July, 1980, granting Shaw an exclusive right to sell the One Goodwin Place property. The agreement with Shaw was signed by Irene Emerson on behalf of the trust on the instruction of Michael Emerson. Michael Emerson thus delegated all necessary power to bind the trust to Irene Emerson concerning the brokerage agreement, and he intended to be bound thereby.

Shaw produced the Lewises, who were acting as joint venturers, as buyers for the property. The Lewises and Emersons met on August 16, 1980. At that time the Emersons accepted the Lewises' offer to purchase One Goodwin Place. In the presence of all the parties, Michael Emerson stated that Irene Emerson could sign any agreement for the trust, and that his signature was not necessary. The Lewises relied on this statement.

Subsequently, there were several meetings between Irene Emerson and the Lewises' attorney to negotiate financing. The Emersons, the Lewises, and the Lewises' counsel met on September 18, 1980, for a final discussion of their agreement. Michael Emerson announced that he would be out of town for the next few days, but that Irene Emerson could sign the purchase and sale agreement on behalf of the trust. She did so on the following day, thereafter informing Kenneth P. Lewis that they had an agreement.

After several delays, the parties met on October 28, 1980, at which time Michael Emerson stated he had a brokerage agreement with Shaw Associates, although he had not signed the contract. On October 29, 1980, Michael Emerson offered to consummate the sale if the Lewises would pay an additional ten thousand dollars. This suggestion was acceptable to the Lewises. The Lewises and Shaw appeared at the designated time for closing on October 30, 1980, but the Emersons did not appear.

Based on the foregoing, the trial judge concluded that the interests under the trust had merged and the property was held by the Emersons individually; that Michael Emerson designated Irene Emerson his agent, thereby binding himself by her signature on the brokerage and purchase and sale agreements; that the September 19, 1980, purchase and sale agreement was valid and binding upon the Lewises and Emersons; that Michael Emerson had wilfully and without justification misled the Lewises to their detriment; and that Shaw had produced buyers who were at all times ready, willing, and able to perform, and would have performed but for the default of the defendants, thereby depriving Shaw of her commission.

The trial judge ordered specific performance of the purchase and sale agreement, ordered payment of Shaw's brokerage fee by the Emersons, and awarded the Lewises attorneys' fees as damages.

The Emersons assert that there exists error in the trial judge's finding concerning merger of the interests of the trust, in adopting the plaintiffs' requests for findings and conclusions, in ordering specific performance where only one trustee had signed the agreement, in ordering payment of the broker's commission, and in awarding attorneys' fees. We perceive error only as to the award of attorneys' fees, and affirm the remainder of the judgments.

1. Merger of the interests of the trust. The Emersons argue at length...