2016 Mass. App. Div. 71

March 25, 2016 - June 8, 2016

Appellate Division Northern District

Court Below: District Court, Newburyport Division

Present: Coven, P.J., Singh & Nestor, JJ. [Note 2]

Andrew J. Brodie, III, and Michael M. D’Isola for the plaintiff.

Michael J. Smith for the defendant.

COVEN, P.J. The issue in this case is whether, where the statute of limitations has run on a tort action after the commencement of the action in the Superior Court and the Superior Court orders a judgment of dismissal nisi for want of procedural amount of the claim, the statutory thirty-day time period allowed for the refiling of the action in the District Court is measured from the notice of the date of intended dismissal as stated in a Superior Court judgment of dismissal nisi order, or from the date the dismissal is actually docketed. A motion judge chose the former as the measuring mark and dismissed the action where the filing of the action occurred after the statutory period. We reverse.

Francis Cummins (“Cummins”) filed a complaint in the Superior Court on November 3, 2014, alleging injuries occurring as a result of a slip and fall on November 3, 2011. [Note 3] On November 20, 2014, a justice of the Essex County Superior Court issued an order for judgment of dismissal nisi for want of procedural amount, concluding that the statement of damages filed with the complaint made clear that there was no reasonable likelihood that the plaintiff’s recovery would exceed $25,000.00. The order was docketed, and the notice sent to Cummins informed him that, absent a request for a hearing, a judgment would enter fourteen days from the entry of the order of judgment of dismissal nisi. Cummins filed his complaint in the District Court on January 23, 2015. On March 9, 2015, the docket states that “judgment of dismissal” was entered in the Essex County Superior Court. As to that entry, the docket reflects the name of a different justice of that court.

Pursuant to G.L. c. 212, § 3, a civil action may be maintained in the Superior Court only if there is no reasonable likelihood of recovery of less than or equal to $25,000.00. Where a review of the statement of damages reveals that the filed action will not meet this procedural requirement, the action may be dismissed pursuant to statutory authority. See G.L. c. 212, § 3A(b). Where the action is ordered dismissed and the statute of limitations would otherwise preclude a timely commenced action, G.L. c. 212,

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§ 3A(d), allows a plaintiff “30 days after the date of receipt of the notice of dismissal . . . to file the case in the appropriate court.” See generally Tortorelli v. O’Callaghan, 2012 Mass. App. Div. 194.

We conclude that, on this record, the relevant date for starting the thirty-day clock is the date the judgment of dismissal is entered. First, we disagree with the defendant, Wayne Capolupo (“Capolupo”), that notice of the nisi order is sufficient because the final act of entry of dismissal is merely ministerial. Although the docketing of the judgment is a ministerial act, when the docket entries are read together, a justice of the Superior Court made the order of entry of the judgment of dismissal nisi but a different justice ordered the entry. It appears from the entries that the initial order and its notice do not carry forward and the actual judgment of dismissal is not automatically ministerially entered on behalf of the justice entering the initial nisi order but, rather, a subsequent order of the court is necessary. [Note 4] Moreover, the view we adopt is consistent with general civil practice. A judgment does not enter until the ministerial act of entering judgment on the docket. Arthur D. Little, Inc. v. East Cambridge Sav. Bank, 35 Mass. App. Ct. 734, 738 n.5 (1994), quoting Mass. R. Civ. P. 58(a) (“A judgment is effective only when so set forth or filed and when entered as provided in Rule 79(a).”). See M.G. Perlin & J.M. Connors, Civil Procedure in the Massachusetts District Court § 10.1, at 310 (4th ed. 2009); J.W. Smith and H.B. Zobel, Rules Practice § 79.2, at 512 (2d ed. 2007). The purpose of the requirement is to make certain the time from which any postjudgment action must be commenced. Lewis v. Emerson, 391 Mass. 517, 519 (1984). [Note 5]

The allowance of the defendant’s motion to dismiss is reversed. The judgment of dismissal is vacated. This case is returned to the Newburyport District Court for further proceedings.


[Note 1] As Trustee of Amesbury Plaza Condominium Trust.

[Note 2] The Honorable Allen G. Swan, Presiding Justice, recused himself from the hearing and review of this appeal.

[Note 3] A tort action must be filed within three years next after the cause of action accrues. G.L. c. 260, § 2A.

[Note 4] This record is distinguishable from Haffey v. Beck, 75 Mass. App. Ct. 686 (2009), where the docketing of the entry of judgment was deemed to be merely ministerial and the record was corrected to reflect the intent of the court.

[Note 5] Although Cummins commenced this action in the District Court prior to the actual judgment of dismissal having been entered on the Superior Court docket, we do not conclude, as argued by Capolupo, that justice requires the dismissal of the action as having been filed prematurely.