HERMIS YANIS, JR. vs. KEITH PAQUIN & another [Note 1]; VINCENT MASTERSON, third-party defendant.

VUONO, J. In this appeal we consider the propriety of the certification and entry of a separate and final judgment under Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974), following the settlement by the plaintiff of his claims against one of the defendants in a personal injury action.

The following background emerges from the record materials before us, consisting mostly of the pleadings. The plaintiff, Hermis Yanis, Jr., was a tenant in an apartment building that was owned and managed by the defendant, Keith Paquin. When Yanis moved into his apartment, Paquin informed him that the natural

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gas stove did not work and that he should select a new one from defendant Sclamo's Appliance & Furniture, Inc. (Sclamo's). Once Paquin ascertained the cost of removing and disposing of the old stove, however, he decided to have it repaired rather than replace it. At Paquin's request, an employee of Sclamo's, allegedly the third-party defendant Vincent Masterson, went to Yanis's apartment on three separate occasions to make the repairs. It is disputed whether the employee was acting on his own behalf or as an employee of Sclamo's when he worked on the stove. After the final visit, the employee told Yanis that the stove had been fixed and was operational. One morning shortly thereafter, Yanis discovered that the stove's pilot light had gone out, he attempted to relight it, there was an explosion, and Yanis severely burned his right hand.

On November 15, 2013, Yanis filed a complaint in the Superior Court against both Paquin and Sclamo's. With regard to Paquin, Yanis asserted claims of negligence, vicarious liability for Sclamo's negligence, breach of the implied warranty of habitability, and breach of the covenant of quiet enjoyment. Against Sclamo's, Yanis asserted claims of negligence, breach of contract as a third-party beneficiary, violation of G. L. c. 93A, and strict liability. Paquin filed an answer to Yanis's complaint in which he neither admitted nor denied that he had entered into a contract with Sclamo's to repair the stove. Paquin also asserted a cross claim against Sclamo's for contribution (as a joint tortfeasor) and for indemnification (based on vicarious liability). Sclamo's, in turn, filed an answer to Paquin's cross claim as well as its own cross claim against Paquin for contribution and for indemnification. [Note 2]

Yanis and Sclamo's subsequently reached a settlement whereby Yanis received a payment of $15,000, and he executed a release of any and all claims he may have had against Sclamo's. [Note 3] With

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Yanis's assent, Sclamo's filed a motion for entry of a separate and final judgment pursuant to Mass. R. Civ. P. 54 (b). [Note 4] Relying on Long v. Wickett, 50 Mass. App. Ct. 380 (2000), Paquin opposed the motion on the grounds that there were no exceptional and compelling circumstances warranting relief under rule 54 (b), that his cross claim against Sclamo's for indemnification substantially overlapped the settled claims, and that an indemnification claim, unlike a contribution claim, was not extinguished by the settlement pursuant to G. L. c. 231B, § 4 (b). [Note 5]

Following a hearing, a judge approved the settlement and ordered the entry of a separate and final judgment that dismissed Yanis's complaint against Sclamo's but did not on its face address the cross claims. [Note 6] In her memorandum of decision on Sclamo's motion, the judge properly acknowledged that G. L. c. 231B, § 4 (b), which discharges the tortfeasor to whom a good faith release is given from all liability for contribution to any other tortfeasor, does not "impair any right of indemnity under existing law." G. L. c. 231B, § 1 (e). Nonetheless, the judge stated that Paquin was not entitled to indemnification from Sclamo's because, as she put it, Paquin was "not without fault" for Yanis's injuries. [Note 7]

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The present appeal by Paquin ensued. [Note 8] Paquin contends that the judge erred in certifying the entry of the separate and final judgment for Sclamo's. He asserts that such relief was not appropriate where his cross claim overlapped factually and legally with Yanis's dismissed claims against Sclamo's, and where the judge did not make an express finding that there was no just reason for delay. Because we agree with Paquin's arguments, we vacate the certification and entry of the separate and final judgment pursuant to rule 54 (b), and remand the case for further proceedings consistent with this opinion. [Note 9]

Discussion. "[A] valid rule 54(b) certification requires the confluence of four factors: (1) the action must involve multiple claims or multiple parties; (2) there must be a final adjudication as to at least one, but fewer than all, of the claims or parties; (3) there must be an express finding that there is no just reason for delaying the appeal until the remainder of the case is resolved; and (4) there must be an express direction of the entry of judgment" (footnote omitted). Long, 50 Mass. App. Ct. at 385-386. [Note 10] See note 4, supra. Rule 54 (b) is designed "to avoid the possible

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injustice of a delay in entering judgment on a distinctly separate claim or as to fewer than all the parties until the final adjudication of the entire case by making an immediate appeal available." Long, supra at 383 n.5, quoting 10 C.A. Wright, A.R. Miller, & M.K. Kane, Federal Practice and Procedure § 2654, at 33 (1998). The rule tries to balance the longstanding bedrock policy in Massachusetts against premature and piecemeal appeals with the need for prompt appellate review to avoid delay and any resulting injustice or hardship. See Long, supra at 387-388. See also Morrissey v. New England Deaconess Ass'n -- Abundant Life Communities, Inc., 458 Mass. 580, 594-595 (2010).

"Whether there are multiple claims in an action and whether those claims have been finally adjudicated are matters of law subject to plenary review by an appellate court." Long, 50 Mass. App. Ct. at 386. "The determination of the presence or absence of a just reason for delay, on the other hand, is left to the sound discretion of the [motion] judge and is subject to reversal only for an abuse of that discretion." Id. See Finnegan v. Baker, 88 Mass. App. Ct. 35, 39 (2015). Appellate courts expect "strict compliance" with the provisions of rule 54 (b), Appleton v. Hudson, 397 Mass. 812, 813 n.3 (1986), and a judge's power to enter a separate and final judgment before the entire case has concluded should be "exercised sparingly." Long, supra at 389, quoting Harriscom Svenska AB v. Harris Corp., 947 F.2d 627, 629 (2d Cir. 1991). [Note 11]

"The first step in appellate review of rule 54(b) cases is to 'scrutinize the [trial] court's evaluation of . . . the interrelationship of the claims so as to prevent piecemeal appeals in cases which should be reviewed only as single units.'" Long, 50 Mass. App. Ct. at 390, quoting Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 10 (1980). "In deciding whether . . . several separately stated counts are 'genuinely separate claims,' as opposed to merely a portion of a 'single [litigation] unit,' a determinative, indeed critical, distinction has been drawn between 'separate "claim[s] for relief" within the meaning of the rule . . . [and] different theories

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of recovery arising out of the same cause of action'" (citations omitted). Long, supra at 391. "A [party] presents multiple claims for relief . . . when the possible recoveries are more than one in number and not mutually exclusive or, stated another way, when the facts give rise to more than one legal right or cause of action." Long, supra at 392, quoting 10 C.A. Wright, A.R. Miller, & M.K. Kane, Federal Practice and Procedure § 2657, at 76-77. See Willhauck v. Halpin, 919 F.2d 788, 793 n.18 (1st Cir. 1990) (existence of multiple claims "almost always implies claims based on more than one set of facts giving rise to more than a single liability"). "Conversely, when a party asserts only one legal right, even if seeking multiple remedies, there is only a single claim for relief for rule 54(b) purposes." Long, supra. "Similarly, '[a]lternative [legal] theories of recovery based on the same factual situation are but a single claim, not multiple ones,' under rule 54(b)." Id., quoting Sussex Drug Prods. v. Kanasco, Ltd., 920 F.2d 1150, 1154 (3d Cir. 1990). "Finally, there is only a single claim for relief, making a separate appeal under rule 54(b) inappropriate, in a case where the facts underlying the adjudicated portion of the case are largely the same as or substantially overlap those forming the basis for the unadjudicated issues." Long, supra. See Spiegel v. Trustees of Tufts College, 843 F.2d 38, 44-45 (1st Cir. 1988). Contrast Dattoli v. Hale Hosp., 400 Mass. 175, 176 (1987) (separate judgment for two defendants warranted where no other claims against them and no substantial overlap between issues on appeal and those remaining for trial).

Here, the allegations set forth in Yanis's complaint present different legal theories of recovery arising from the same factual scenario, thereby constituting a single claim, not multiple ones, for purposes of rule 54 (b). The motion judge accurately described Yanis's action as a "suit in negligence against Sclamo's . . . and Paquin for causing a gas explosion that injured Yanis'[s] hand." Although Yanis presented eight separate counts, four against Paquin and four against Sclamo's, the alleged facts underlying his settled claims against Sclamo's substantially overlap those forming the basis for his unresolved claims against Paquin. Each of the eight counts incorporates by reference every other paragraph of the complaint, including those setting forth the "facts common to all counts," and requests damages for the harm Yanis sustained. In essence, all of Yanis's claims are inextricably

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intertwined. [Note 12]

General Laws c. 231B, § 4 (b), which discharges the tortfeasor to whom a good faith release is given from all liability for contribution to any other tortfeasor, does not "impair any right of indemnity under existing law" (emphasis added). G. L. c. 231B, § 1 (e). See note 5, supra. A right to indemnification may arise in three circumstances: (1) where there is an express contract for indemnification; (2) where a contractual right to indemnification is implied from the relationship between the parties; and (3) under common law, where a party is exposed to liability because of the negligent act of another. See Fall River Hous. Auth. v. H. V. Collins Co., 414 Mass. 10, 13-15 (1992); Rathbun v. Western Mass. Elec. Co., 395 Mass. 361, 363-364 (1985). See also Araujo v. Woods Hole, Martha's Vineyard, Nantucket S.S. Auth., 693 F.2d 1, 2 (1st Cir. 1982). With respect to this last circumstance, "[t]he general rule is that a person who negligently causes injury to a third person is not entitled to indemnification from another person who also negligently caused that injury." Rathbun, supra at 364. "Indemnification has been permitted, however, where the person seeking indemnification did not join in the negligent act of another but was exposed to liability because of that negligent act." Id. See Elias v. Unisys Corp., 410 Mass. 479, 482 (1991) (indemnification available where individual "who is without fault [is] compelled by operation of law to defend . . . against the wrongful act of another"); Decker v. Black & Decker Mfg. Co., 389 Mass. 35, 40 (1983) (right to indemnity limited to cases where would-be indemnitee held derivatively or vicariously liable for another's wrongful act).

Based on our review of the pleadings in the record before us, it is unclear whether there was a contractual relationship between Paquin and Sclamo's for the repair of the stove in Yanis's apartment. It is also unclear whether any actions taken personally by Paquin with relation to the stove can properly be characterized as negligent. We are therefore unable to determine whether there

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is any basis by which Paquin could be entitled to indemnification from Sclamo's. Such a determination will depend on the evidence that develops below. In the event of a finding of vicarious liability, Paquin could be entitled to common-law indemnification from Sclamo's if he is found to be without fault for Yanis's injuries.

Given the factual and legal interrelationship between the settled and surviving claims, the judge erred in granting rule 54 (b) certification. This is a sufficient ground to vacate the certification. See Long, 50 Mass. App. Ct. at 394-395. Additionally, vacatur is appropriate here because the certification does not include an express finding that there was no just reason for delaying an appeal until the remainder of the case was resolved. See id. at 395.

A motion judge must closely examine the facts of a particular case "to ensure that allowing an appeal will not wrongly fragment the case," and should ascertain "whether [certification] will advance the interests of judicial administration and public policy." Long, 50 Mass. App. Ct. at 395, quoting Consolidated Rail Corp. v. Fore River Ry. Co., 861 F.2d 322, 325 (1st Cir. 1988). See United States Trust Co. v. Herriott, 10 Mass. App. Ct. 313, 322 (1980); J.B.L. Constr. Co. v. Lincoln Homes Corp., 9 Mass. App. Ct. 250, 252-253 (1980). It is incumbent on the judge to "specifically enumerate all of the factors and concerns relied upon when reaching [a] [certification] decision." Long, supra at 402, quoting Consolidated Rail Corp., supra. See Finnegan, 88 Mass. App. Ct. at 40-41 (trial judges urged to provide thorough analysis of reasons for certification, consistent with what should be sparing use of rule 54 [b]). Explanatory findings are especially important where, as here, the judge's reasons for certification are not clear from the record, and the absence of such findings can result in dismissal of an appeal. See Long, supra at 402-403.

As we have noted, the judge's decision here does not include any express findings that there was no just reason for delay. In addition, the pleadings do not establish that this case presents the sort of "extraordinary feature[s] that should exist to justify recourse to the exceptional procedure authorized by rule 54(b)." Long, 50 Mass. App. Ct. at 397. To the contrary, this case appears to be a garden-variety negligence action. As such, we conclude that the rule 54 (b) certification was not warranted.

Conclusion. The certification and entry of the separate and final judgment pursuant to rule 54 (b) is vacated, and the case is remanded

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to the Superior Court for further proceedings consistent with this opinion.

So ordered.