Troy Indus. Inc v. Samson Mfg. Corp. & Another

• Decision Date: 12 April 2010
• Docket Number: No. 08-P-1420.,08-P-1420.
• Citation: 924 N.E.2d 325,76 Mass.App.Ct. 575
• Parties: TROY INDUSTRIES, INC.v.SAMSON MANUFACTURING CORPORATION & another.
• Court: Appeals Court of Massachusetts

76 Mass.App.Ct. 575

924 N.E.2d 325

TROY INDUSTRIES, INC.v.SAMSON MANUFACTURING CORPORATION & another.¹

No. 08-P-1420.

Appeals Court of Massachusetts,

Suffolk.

Argued May 1, 2009.

Decided April 12, 2010.

Laura L. Carroll, Boston (Robert J. O'Regan with her) for the defendants.

Patricia B. Gary, Boston, for the plaintiff.

Present: KANTROWITZ, McHUGH, & MEADE, JJ.

McHUGH, J.

After a judge of the Superior Court dismissed a complaint for contempt brought by Troy Industries, Inc. (Troy), against Samson Manufacturing Corporation and its principal, Scott A. Samson (collectively Samson), the judge ordered entry of a judgment on the merits that also awarded Samson substantial costs and attorney's fees pursuant to G.L. c. 231, § 6F, the statute dealing with frivolous actions. Troy's appeal from the judgment followed a tortuous path, detailed below, but ultimately was saved from extinction by an order of a single justice of this court that extended a critical filing deadline. From that order, and from a subsequent order denying Samson's motion for reconsideration, Samson now appeals. We affirm in part and reverse in part.

Background. Troy and Samson manufacture firearm accessories, including hand guards that fit over the barrels of M-16, AR-15, or AK-47 assault rifles. On June 21, 2007, a Superior Court jury in a separate action found that Samson breached a confidentiality agreement with Troy by using Troy's trade secrets to manufacture a modular rail forend (MRF), which is a particular kind of hand guard for the M16 rifle. The resulting judgment awarded damages and also contained a permanent injunction barring Samson from manufacturing or selling the MRF or any other substantially similar device Samson derived from information it received from Troy under the confidentiality agreement.

On July 18, less than one month later, Troy filed this contempt action against Samson, claiming that Samson had violated the injunction by selling two products that were similar to Troy's MRF and were derived from information covered by the confidentiality agreement. The contempt issues were tried, jury-waived, before the judge who had presided at the earlier jury trial. When the trial ended on December 10, 2007, the judge dismissed the complaint with a brief oral statement of his findings and reasons. Later, on December 20, he supplemented his oral remarks with written findings and conclusions in which he stated that, for reasons not material here, the challenged Samson products were not substantially similar to Troy's MRF. The judge also found that Samson had not derived the design of either product from information Troy had provided under the confidentiality agreement. Finally, he modified somewhat the scope of the original injunction.

When the judge orally dismissed the contempt complaint on December 10, Samson orally moved for attorney's fees and costs pursuant to G.L. c. 231, § 6F. ² The judge orally denied the motion. Samson then filed a motion for reconsideration. In response, the judge held a hearing and, in an order dated January 9, 2008, found that the material portions of Troy's complaint were “wholly insubstantial, frivolous and not advanced in good faith.” Those findings triggered Samson's entitlement to an award under § 6F, so the judge vacated his earlier, oral denial of Samson's motion, ruled that Troy was required to reimburse Samson for the fees and costs it had incurred in resisting the contempt action, and scheduled a hearing to determine the appropriate amount of the reimbursement.

The judge held the hearing on March 10 and the following day entered a written order awarding $84,995.07 in fees and costs. However, during the hearing the judge suggested that counsel for Samson and Troy agree on a draft judgment addressing in one place dismissal of the complaint, modification of the injunction, and the award of fees and costs. Counsel agreed and submitted the draft judgment on March 28, 2008. Judgment entered on April 3, and the Superior Court docket suggests that notice of it was sent to all counsel of record pursuant to Mass.R.Civ.P. 77(d), as appearing in 423 Mass. 1411 (1996).

On May 13, Troy's counsel electronically mailed (e-mailed) Samson's counsel to ask if she had received notice of entry of judgment. Samson's counsel immediately replied with an e-mail saying that she had and that the judgment had entered on April 3. The next day, May 14, Troy filed a notice of appeal from the April 3 judgment “and all [o]rders referenced therein.” Simultaneously, Troy moved nunc pro tunc under Mass.R.A.P. 4(c), as amended, 378 Mass. 928 (1979),³ for an eleven-day extension of time to file a notice of appeal in order to make timely its May 14 filing. ⁴ The motion was accompanied by affidavits from three of Troy's four attorneys saying that the e-mail of April 13 from Samson's counsel was their first notice that judgment had entered.

The judge nevertheless denied Troy's motion on June 5, stating that “[s]ince Troy's counsel knew that an agreed-upon draft judgment had been filed with the Court on March 28, 2008, it was not excusable neglect to wait until May 13, 2008 to learn whether a judgment had issued.” He also allowed Samson's motion to dismiss Troy's appeal.

Troy did not appeal either order. Instead, on June 13, 2008, it filed a motion with a single justice of this court seeking an extension of time pursuant to Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979). ⁵ On July 2, the single justice denied the motion, observing that the trial judge already had denied Troy's similar motion. The single justice also noted that G.L. c. 231, § 6G,⁶ which governs appeals from orders entered pursuant to § 6F, contains a ten-day time limit and that he was “without jurisdiction under [ rule] 14(b) to enlarge a time limit set by statute.”

Troy successfully moved for reconsideration. On July 25, 2008, the single justice vacated his July 2 order and entered a superceding order allowing Troy's motion as to “all elements of judgment entered ... on April 3, 2008 ... so as to make [Troy's May 14] filing timely nunc pro tunc.” He reasoned that the April 3 judgment had three parts: (1) amendment of the original injunction; (2) dismissal of the contempt complaint; and (3) the award of fees and costs under § 6F. As to the first two, he applied the “good cause” standard of rule 14(b), see note 5 supra, and extended the time to appeal to May 14, nunc pro tunc,⁷ stating in part that the trial judge's reasoning would lead

“to the impractical requirement that counsel routinely check the clerk's office for entries at risk of the imputation of neglect, rather than rely upon a presumably competent

process of notification. Counsel for Troy were reasonably entitled to trust that process for the forty days between April 3 and May 13. The backlog in busy sessions may cause delays of that interim. They did not remain unconcerned for an unreasonable duration.”

Insofar as the appeal from the fee and cost award was concerned, the single justice noted that the ten-day period for taking an appeal pursuant to § 6G began when a party received notice of the decision awarding fees and costs. Relying on what he found to be credible affidavits from counsel for Troy, he found that counsel for Troy had not received notice of the judgment until their e-mail exchange with counsel for Samson on May 13. That being the case, the single justice reasoned, Troy's May 14 notice of appeal was timely.

Samson then moved for reconsideration, arguing that Troy had filed only one notice of appeal, not the two notices required when a party seeks to appeal both from a judgment on the merits and from an included award pursuant to § 6F, see Bailey v. Shriberg, 31 Mass.App.Ct. 277, 284, 576 N.E.2d 1377 (1991), and also that Troy had in fact received notice of the § 6F “decision” long before May 13. The single justice denied Samson's motion on August 29, 2008, and this consolidated appeal from both orders of the single justice followed.

Discussion. Here, Samson claims that the single justice's order allowing Troy's motion to extend the time for taking an appeal was wrong for three separate reasons, namely, that the single justice (1) failed to apply an “excusable neglect” standard to Troy's rule 14(b) motion; (2) allowed Troy to proceed under rule 14(b) after it failed to appeal the trial judge's denial of its rule 4(c) motion; and (3) allowed Troy to appeal both the § 6F award and the substantive judgment without filing separate notices of appeal.⁸ Resolution of claims (1) and (2) affects Troy's right to proceed with the appeal on the merits. Claim (3) affects only Troy's right to appeal from the § 6F award. We discuss the claims in that order.

a Application of the rule 14(b) standard. At the outset, it is important to keep in mind that we review the action of the single justice for errors of law and, if none appear, for abuse of discretion. See Lawrence Sav. Bank v. Garabedian, 49 Mass.App.Ct. 157, 161, 727 N.E.2d 97 (2000); Commonwealth v. Kegler, 65 Mass.App.Ct. 907, 907, 841 N.E.2d 730 (2006); Stephens v. Global NAPs, 70 Mass.App.Ct. 676, 683-684, 876 N.E.2d 452 (2007). To determine whether there was an abuse of discretion, we look to see whether the single justice's exercise of discretion was “characterized by arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice.” New England Allbank for Sav. v. Rouleau, 28 Mass.App.Ct. 135, 144, 547 N.E.2d 61 (1989), quoting from Greenleaf v. Massachusetts Bay Transp. Authy., 22 Mass.App.Ct. 426, 429, 494 N.E.2d 402 (1986). We make our own judgments on both issues, recognizing that the burden of showing an abuse of discretion is a difficult one to carry.

Substantively, the Massachusetts Rules of Appellate Procedure contain two separate provisions for seeking extensions of time to file a notice of appeal. Under rule 4(c), a trial court judge may “extend the filing period for up to thirty additional days,...