RICHARD ZIELINSKI & another [Note 1] vs. CONNECTICUT VALLEY SANITARY WASTE DISPOSAL, INC. [Note 2]

GELINAS, J. We first consider in this case the defendant's argument that the plaintiffs' appeal must be dismissed either because a delay of some seven years in the entry of a judgment pursuant to Mass.R.Civ.P. 58(a), as amended, 371 Mass. 908 (1977), constituted a waiver of the plaintiffs' right to appeal from the allowance of the defendant's motion for summary judgment, or because the filing of the judge's "Rulings and Order" on the motion, and the docket entry indicating that the motion had been allowed, served as a sufficient substitute for the "separate document" requirement of the rule, and thus rendered the plaintiffs' appeal untimely. As we conclude that neither waiver nor substitution should bar the plaintiffs' appeal, we consider the plaintiffs' claims on appeal, and conclude that the defendant is entitled to summary judgment and dismissal of the plaintiffs' claim.

Background. The plaintiffs, Richard and Martin Zielinski, filed an eviction action on April 8, 1997, in Housing Court to recover property leased to the defendant, Connecticut Valley Sanitary Waste Disposal, Inc. (Connecticut Valley or the defendant), for use as a landfill. They alleged that the defendant had "knowingly, intentionally and willfully violated numerous provisions of the Lease, . . . including the critical requirement that [the defendant] operate the . . . Landfill in strict compliance with all applicable laws." These violations, they claimed, resulted in a material breach of the lease, causing the lease to terminate and obliging the defendant to vacate the premises and return possession to the plaintiffs. Specifically, the plaintiffs, in their one-count complaint, asked that the court (1) declare that the defendant had materially breached the lease and order that the defendant immediately vacate the premises; and (2) award the Zielinskis their costs, interest, and other appropriate relief. The Zielinskis demanded a jury trial.

The case was filed in the Housing Court; it was later transferred to the Superior Court, with a Housing Court judge specially assigned to hear it. In October, 1997, the defendant moved for summary judgment. On March 11, 1998, the judge allowed the

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defendant's motion; the judge's "Rulings and Order on Motion of Defendant . . . for Summary Judgment" was filed with the clerk on that day. The docket of the case reflected the filing of the document and the disposition. [Note 3] However, no separate final judgment, as required by rule 58(a), either issued or was entered on the docket.

Some seven years later, in August, 2005, the plaintiffs filed a motion for entry of judgment. The defendant filed an opposition, and after hearing oral argument, the same judge who had heard and allowed the summary judgment motion ordered that a final judgment be issued. [Note 4] It was entered on the docket on November 10, 2005, and the plaintiffs filed their notice of appeal on November 21, 2005. The defendant filed a motion to dismiss the appeal and was given permission by a single justice of this court to raise the issue in its appellee brief. The defendant did not file a cross appeal.

Discussion. 1. Delay in entry of judgment pursuant to rule 58(a). We first address the defendant's claim that the appeal should be dismissed, despite the fact that a separate document of judgment as required by rule 58(a) did not enter until 2005, and the plaintiffs' appeal was filed within the time permitted

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after such entry of judgment. [Note 5] Relying primarily on Fiore v. Washington County Community Mental Health Center, 960 F.2d 229, 236 (1st Cir. 1992), construing the cognate Federal Rule 58(a), Connecticut Valley argues that although no final judgment entered until 2005, and although the plaintiffs timely appealed from that entry, the plaintiffs should be deemed to have waived their appeal because they waited over seven years before moving for entry of judgment on a separate document pursuant to rule 58(a).

The Fiori court recognized that the separate document requirement "should always be interpreted 'to prevent loss of the right to appeal, not to facilitate loss.' " Id. at 237 (citations omitted). Nevertheless, on the theory that a party could always waive technical application of the separate document requirement, the court held that it could infer waiver where a party failed to act within three months of entry of the court's order, absent exceptional circumstances. "When a party allows a case to become dormant for such a prolonged period of time, it is reasonable to presume that it views the case as over. A party wishing to pursue an appeal and awaiting the separate document of judgment from the trial court can, and should, within that period file a motion for entry of judgment. This approach will guard against the loss of review for those actually desiring a timely appeal while preventing resurrection of litigation long treated as dead by the parties." Id. at 236.

The waiver doctrine has not been followed by other Federal circuits. See, e.g., Hammack v. Baroid Corp., 142 F.3d 266, 268-270 (5th Cir. 1998) (expressly rejecting Fiore, and holding that a party's delay in seeking a separate document of judgment cannot constitute waiver of his right to appeal; noting also that, should a court fail to issue a separate document, a party seeking finality remains free to request one). See also Rubin v. Schottenstein, Zox & Dunn, 110 F.3d 1247, 1253 & n.4 (6th Cir. 1997), vacated on other grounds, 120 F.3d 603, reinstated in

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pertinent part, 143 F.3d 263, 270 (6th Cir. 1998) (rejecting Fiori doctrine of waiver as not supported by the rules or the statements of the United States Supreme Court on the issue, and applying rule 58[a] "mechanically"). We decline to follow the waiver theory espoused in Fiori, and conclude that the plaintiffs' failure to apply to the court for formal entry of a separate document of judgment under rule 58 does not constitute a waiver of their right to have such judgment entered.

Nor does Lewis v. Emerson, 391 Mass. 517 (1984), provide the defendant with any ground for relief. In Lewis, notwithstanding failure to comply with rule 58(a), the appeal was allowed to proceed, where the judge's memorandum contained a separate section entitled "Judgment," which recited, "It is hereby ordered and adjudged . . . ." Id. at 519. The Lewis court acknowledged that a literal reading of rule 58 supports the view that a separate document entering judgment is required, but determined that in certain cases, the lack of a separate document should not preclude appellate review. Noting that "the purpose of the 'separate document' and docket entry requirements is to clarify the time from which postjudgment action shall be commenced," and that the "rule's aim is to ascertain the exact judgment date, important for purpose of posttrial motions and appeals," ibid., citing Reporters' Notes to Mass.R.Civ.P. 58, Mass. Ann. Laws, Rules of Civil Procedure, at 550 (1982), the court held that "where . . . 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 appearing in 385 Mass. 1214 (1982). This principle is especially important where the parties have little, if any, control over the manner in which clerks perform their duties." Lewis v. Emerson, supra at 520.

We have found no Massachusetts case where a court, in departing from the requirement of rule 58(a), has foreclosed an

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appellant's right to appeal. Massachusetts courts generally continue to require strict compliance with rule 58(a)'s "separate document" rule. See Department of Rev. v. Mason M., 439 Mass. 665, 673 (2003) (entry on the docket of judge's "memorandum and order," where order on last page dismissed the complaint, was insufficient to trigger running of time for filing appeal under Lewis; separate entry of judgment five weeks later was the triggering event); Zoning Bd. of Appeals of Greenfield v. Housing Appeals Comm., 15 Mass. App. Ct. 553, 555 (1983) (deeming premature an appeal filed before final judgment had entered). In cases where our courts have held that strict compliance with the "separate document" rule is not required, they have done so in circumstances where an appeal, although technically premature, should be allowed to go forward. [Note 6] See, e.g., Lewis v. Emerson, 391 Mass. at 520 ("it is not fair to prevent the parties' exercise of . . . appellate rights on the basis of clerical niceties"). See also Lawrence v. Lawrence Patrolmen's Assoc., 56 Mass. App. Ct. 704, 706 n.4 (2002) (absence of docket entry of final judgment does not deter appellate review). On the Federal side, any softening of the cognate rule's technical harshness has been in favor of promoting rather than foreclosing the right of appeal. See, e.g., Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978), cited in Lewis v. Emerson, supra. We decline to expand the rationale of Lewis to preclude an appeal filed in technical compliance with the rules of civil procedure.

Moreover, in this case, the form of the judge's memorandum is not comparable to the document deemed adequate in Lewis, supra at 519. Unlike in Lewis, where the memorandum contained a separately identifiable "judgment," here, in contrast, there is no " 'judgment' [that] is visually distinct from other parts of the document in which it is contained." Id. at 520. And, notwithstanding the title of the judge's memorandum ("Rulings and

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Order . . .") (emphasis supplied), no part of the memorandum before us is denoted as an "order." Rather, the memorandum simply concludes, "For the foregoing reasons, the motion of the defendant . . . for summary judgment is hereby ALLOWED." We conclude that the judge was correct in entering the final judgment and that the appeal is timely brought. [Note 7]

2. Merits of the appeal. On our conclusion that the appeal is timely, we proceed to consider its merits. We recite the facts generally, reserving some specifics for our discussion of the issues. The Zielinskis own approximately 180 acres in Chicopee used as a landfill. In 1983, Antoinette Zielinski, the Zielinskis' mother and predecessor in interest, leased the landfill to Connecticut Valley, [Note 8] with monthly rental payments set at fifty percent of its net income from the landfill. The lease was for an initial five-year term, which Connecticut Valley could renew at its option five times (for a total lease term, assuming exercise of all options, of thirty years). Paragraph 6 of the lease allows the Zielinskis to terminate the lease under certain conditions for nonpayment of rent [Note 9]; par. 21 requires Connecticut Valley to operate the landfill in "strict compliance" with all applicable laws and regulations and to indemnify the Zielinskis for "all claims for damages, on account of injury or damage by way of any act or omission" by the defendant. [Note 10]

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In 1995, various regulatory bodies began investigating the landfill. In 1996, in a surprise inspection, Massachusetts Department of Environmental Protection (DEP) investigators took six samples from landfill material, [Note 11] discovering that two of the six samples contained asbestos that had not been properly treated. [Note 12] The investigators also charged that Connecticut Valley was accepting more tonnage (both daily and annually) than its license allowed. In February, 1997, Connecticut Valley and the DEP entered into a consent order in which the defendant agreed, inter alia, to pay a $150,000 penalty to settle allegations of environmental violations. Among the alleged violations were claims that Connecticut Valley had caused asbestos to be placed illegally in the landfill, and that it had accepted greater quantities of waste material than the amounts for which it had permits. The Zielinskis contend that these acts constituted a material breach of the lease, and that they therefore may terminate the

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lease, oust the defendant from possession, and take over the landfill's operation. As far as the record shows, Connecticut Valley complied with the consent order in all respects, and has been in compliance with the order and the lease in this regard since that time.

We conclude that the motion judge was correct in granting summary judgment to the defendant. "Summary judgment is appropriate where there is no genuine issue of material fact, and when, viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law." Gray v. Giroux, 49 Mass. App. Ct. 436, 438 (2000). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). "[A] party moving for summary judgment in a case in which the opposing party [has] the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in [rule] 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Our review is de novo, see Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n.1 (1997); we consider the record and the legal principles involved without deference to the motion judge's reasoning. See Clean Harbors, Inc. v. John Hancock Life Ins. Co., 64 Mass. App. Ct. 347, 357 n.9 (2005).

a. Breach of par. 21 of the lease. Upon our review of the summary judgment materials here, we conclude, as did the motion judge, that the lease did not allow termination for breach of par. 21 (violation of landfill regulations or other similar laws). The only remedy specified in the relevant lease paragraphs (21 and 24) is indemnification. By contrast, par. 6 of the lease specifically provides that the lease may be terminated for nonpayment of rent. Failure to include a termination remedy in par. 21 was therefore, as concluded by the motion judge, intentional. See Judkins v. Charette, 255 Mass. 76, 82 (1926) ("right to re-enter being restricted to a breach of specific covenants of the lease, impliedly excludes the right of the lessor to re-enter for a breach of other covenants"). Cf. Chatham Pharmaceuticals, Inc. v. Angier Chem. Co., 347 Mass. 208, 211 (1964) ("when there is an omission of any provision for one party to assign

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obligations and in the same sentence there is a provision that in certain circumstances the other party may assign rights or obligations, we conclude that the omission was intentional").

We reject the Zielinskis' assertion that because par. 21 does not specifically prohibit termination, termination is in fact an available remedy for breach of that paragraph. Their reliance on DiBella v. Fiumara, 63 Mass. App. Ct. 640 (2005), is misplaced. While that decision does note that a lease may be terminated for material breach if it contains no default clause, see id. at 643-644, the lease at issue here does contain several default clauses. See, e.g., note 9, supra. We agree with the motion judge's construction of the lease that, viewing the lease as a whole, it specifically precludes termination for breaches of lease provisions concerning operational matters, the breaches at issue here. See id. at 645, citing Restatement (Second) of Property (Landlord & Tenant) § 13.1 comment j (1977) ("parties can agree that landlord's remedies for a breach by the tenant will be greater or less than what the remedies would be in the absence of such agreement").

b. Breach of par. 6 of the lease. Finally, the Zielinskis argue that, as termination for nonpayment of rent is a remedy made available under par. 6 of the lease, remand is required to determine whether Connecticut Valley's alleged diversion of profits constitutes nonpayment of rent. [Note 13] This claim was not part of the plaintiffs' second amended complaint (nor of either of their prior complaints), and the argument was not made below, apparently because the matter whether there was an attempt to avoid rental payments had been submitted to arbitration. [Note 14] We decline to consider the question. The issue, not having been raised in the

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plaintiffs' complaint nor presented for adjudication to the judge by the parties, will be deemed waived. See Wynn & Wynn, P.C. v. Massachusetts Commn. Against Discrimination, 431 Mass. 655, 674 (2000) ("claims -- however meritorious -- that have not been raised in the trial court are deemed to have been waived on appeal").

Judgment affirmed.