9 Mass. App. Ct. 829

January 14, 1980

The defendant Saetz (seller) appeals from a judgment of the Superior Court which orders her to convey her real estate to the plaintiff buyer pursuant to a "proposal to purchase" signed by the buyer and to which the seller's daughter affixed her initials and the seller's signature. The judge found that the daughter had acted as the seller's agent in accepting the buyer's offer. Because no action has been taken on the severed cross claim filed against the seller by the defendant broker with whom the seller had been directly dealing, we dismiss the appeal. Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974). Although the judge did state that "judgment is to hereby enter forthwith," he neither made an express reference to rule 54(b) nor did he make "an express determination that there [was] no just reason for delay" in entering judgment for the plaintiff. Rule 54(b). New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671 , 677-678 (1977). We are unable to conclude that this determination is implicit in the order for the immediate entry of judgment because there is nothing in the record before us which pertains to the cross claim. Hence, this matter is not ripe for review.

Because of the particular circumstances of this case and for the reasons set out in Levy v. Bendetson, 6 Mass. App. Ct. 558 , 561-562 (1978), we express our view that the findings made by the judge pursuant to Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974), are insufficient and require supplementation prior to an appeal after entry of a judgment on the cross claim. This is especially so on the issue whether the seller's daughter had authority, actual, implied or apparent, to deal with the buyer and a prior broker in this real estate transaction. See, e.g., Restatement (Second) of Agency Sections 27, 37, 43, 52, 55 (1958).

Appeal dismissed.


9 Mass. App. Ct. 829

January 18, 1980

This case began as a petition for relief in the nature of certiorari in the Supreme Judicial Court against the Appeals Court, the Superior Court, the Probate Court for the county of Middlesex, the clerk of the Appeals Court in his capacity as such, and the register of probate for Middlesex County. The petition appears to seek injunctive relief against implementation of an order of the Superior Court releasing certain funds from escrow to Donnelly's former wife. The petition was transferred to this court and denied by a single justice. Behind the petition lies Donnelly's objection to a decree of divorce entered May 25, 1973, and a custody order entered February 14, 1974. These actions have long since become final. Although the Supreme Judicial Court offered the appellant an

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avenue of relief on May 16, 1974, he chose not to follow it and took an unsuccessful excursion to the United States District Court. In the meantime, the orders of the Probate Court became final and immune from collateral attack. No valid appeal could be entered. Ullian v. Ullian, 3 Mass. App. Ct. 729 (1975). The appellant has, thus, ignored the Massachusetts Rules of Civil Procedure, the Massachusetts Rules of Appellate Procedure, and orders of several courts. The petitioner cannot reopen matters fully litigated and beyond appeal and his efforts so to do are nothing more than an "effort to evade in an irregular manner" final decrees. Bay State Cafe, Inc. v. Cohen, 336 Mass. 758 (1957).

This case has long been over, and the petition was rightly dismissed.

Judgment affirmed.