EDWARD C. McMAHON and another [Note 1] v. GENAVIEVE M. QUETTI and another [Note 2]

MURPHY, J. This case arises out of claims by Edward C. McMahon and Gloria M. McMahon (the "plaintiffs") for personal injuries sustained when a car they were riding in, while in an automatic car wash owned and operated by F.L. Roberts and Company, Inc. ("F.L. Roberts"), was allegedly struck from the rear by a car driven by Genavieve Maria Quetti ("Quetti"). The questions before us are whether the trial judge abused his discretion by dismissing the plaintiffs' appeal of claims against Quetti as untimely and denying their Rule 60 motion. We find that dismissal of the appeal was an abuse of discretion.

Procedural background. On June 11, 2019, a judge (hereafter "first judge") ruled that summary judgment should enter for Quetti and F.L. Roberts on all counts. Specifically, her ruling stated: "Judgment shall enter for the defendant Quetti on Counts I and III. Judgment shall enter for the defendant F.L. Roberts and Company, Inc. on Counts II and IV." On June 12, 2019, the docket reflected an entry of judgment for Quetti on counts I and III (the "Quetti counts"), and judgment for F.L. Roberts, but only on count II. The docket was silent as to the disposition of count IV. Pursuant to Mass. R. Civ. P. 77(d), separate judgments issued and were mailed to the parties that same day; however, they too did not include a judgment for count IV.

On June 27, 2019, the plaintiffs filed a motion for relief and/or for clarification pursuant to Mass. R. Civ. P. 60. They claimed the docketing error tolled the time to file an appeal, which otherwise would have expired on June 24, 2019, because all claims of all parties had not been disposed of as required by Mass. R. Civ. P. 54(b). They sought relief in the form of a corrected judgment or issuance of an order confirming that the time to file an appeal would not begin to run until the court docketed the judgment on count IV of the complaint. On July 2, 2019, the judgment dated June 12, 2019 for F.L. Roberts was "Vacated and Amended due to clerical error." That same day, a new judgment for F.L. Roberts was docketed as to counts II and IV (the "F.L. Roberts counts"). A new judgment was not docketed as to the Quetti counts. The docket indicates the plaintiffs waived or withdrew their Rule 60 motion on July 8, 2019, prior to any action of the court. The plaintiffs filed their notice of appeal on all counts on July 10, 2019. On July 30, 2019, F.L. Roberts filed a motion to dismiss

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the plaintiffs' appeal claiming failure to comply with Dist./Mun. Cts. R. A. D. A. 4(a) because the plaintiffs' notice of appeal was not filed by June 24, 2019. Quetti did not file a similar motion.

On September 19, 2019, another judge (hereafter "second judge"), after hearing argument from the plaintiffs' and F.L. Roberts' attorneys on F.L. Roberts' motion: dismissed, sua sponte, the plaintiffs' notice of appeal as to the Quetti counts as untimely filed in violation of Dist./Mun. Cts. R. A. D. A. 4; denied F.L. Roberts' motion to dismiss the plaintiffs' notice of appeal as to the F.L. Roberts counts based on the same rule; and denied the plaintiffs' Rule 60 motion. The second judge found, in a written decision, that the first judge's decision granting summary judgment on the Quetti counts was clear and unambiguous, and that it was accurately noted on the court's docket as to counts I and III. He then concluded that the time to file an appeal of the summary judgment decision as it related to the Quetti counts began to run on June 12, 2019, and, therefore, dismissed the plaintiffs' appeal of those counts as untimely. He denied the motion to dismiss the plaintiffs' appeal as it related to the F.L. Roberts counts reasoning that, although the first judge's decision was also clear and unequivocal as to those counts, the original judgment dated June 12, 2019 was amended effective July 2, 2019. Therefore, he ruled that the time to appeal the F.L. Roberts counts began to run on that date, and that the plaintiffs' July 10, 2019 notice of appeal as it related to the F.L. Roberts counts was timely. [Note 3]

Discussion. The plaintiffs claim that the second judge abused his discretion by dismissing their appeal of the Quetti counts as untimely. We agree.

"It is settled that the trial court has the inherent authority to dismiss a noncomplying appeal that has not yet been transmitted to the Appellate Division, either sua sponte, or upon motion by the appellee." Lashus v. Slater, 2009 Mass. App. Div. 89. The second judge was empowered to rule on the timeliness of the plaintiffs' notice of appeal of both the Quetti and the F.L. Roberts counts.

Rule 3(a) of the Dist./Mun. Cts. R. A. D. A. mandates that an appeal to the Appellate Division "shall be taken by filing a notice of appeal together with the filing fee required by law with the clerk of the trial court within the time allowed by Rule 4." Rule 4(a), in turn, requires that the required notice of appeal "shall be filed with the clerk of the trial court within ten days after the date of the entry of the judgment in the case being appealed." See Citibank (S.D.) N.A. v. Surabian, 2013 Mass. App. Div. 45, 46. The parties agree that if the effective date of entry of judgment for all counts was July 2, 2019, then the notice of appeal as to all counts was timely.

"Although the court renders judgment, it is the entry of judgment by the clerk that makes the judgment effective. The court's announcement of its decision in open court or in writing does not, of itself, constitute the critical point for procedural purposes. Rather, that critical point comes only when two things happen after the court renders judgment. First, the clerk must prepare and sign the judgment, which must be set forth on a 'separate document.' Second, the clerk must enter the judgment in the civil docket pursuant to [Mass. R. Civ. P.] 79(a) by recording the judgment in the docket" (emphasis in original). M.G. Perlin & J.M. Connors, Civil Procedure in the Massachusetts District Court § 10.2, at 385 (5th ed. 2018), citing Mass. R. Civ. P. 58(a). "The cases indisputably establish that both conditions set forth in the rule

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must be met before an appealable 'judgment' exists." Bevel-Fold, Inc. v. Bose Corp., 9 Mass. App. Ct. 576, 580 (1980). "A judgment must also dispose of all claims in the case, unless the judge has specially authorized partial judgments under Dist./Mun. Cts. R. Civ. P. 54 (b) [now Mass. R. Civ. P. 54 (b)]" (emphasis in original; citation omitted). Perlin & Connors, supra at § 10.2, at 386 n.12.

There are both multiple parties and multiple claims in this case. Rule 54(b) of the Massachusetts Rules of Civil Procedure applies. It provides, in relevant part: "When more than one claim for relief is presented in an action . . . or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." Mass. R. Civ. P. 54(b). In the absence of such determination and direction, no appeal can be taken from a trial court's partial "judgment" on a claim prior to entry of a final judgment disposing of all claims against all parties to the action. Bragdon v. Bradford O. Emerson, Inc., 19 Mass. App. Ct. 420, 422-423 (1985). "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." Yanis v. Paquin, 96 Mass. App. Ct. 134, 138 (2019), quoting Long v. Wickett, 50 Mass. App. Ct. 380, 386 (2000).

Here, it is undisputed that the critical act of docketing judgments as to all counts did not occur on June 12, 2019. Due to a clerical error, the judgment as to count IV of the F.L. Roberts counts was not docketed until July 2, 2019. The second judge's establishment of different dates for entry of judgment for purposes of filing an appeal of the Quetti counts was improper because there was insufficient evidence in the record to support a finding that the first judge made an "express determination that there is no just reason for delay" as required by Mass. R. Civ. P. 54 (b). [Note 4] Under the circumstances of this case, the action as to all counts was not terminated for purposes of triggering appellate rights and obligations until July 2, 2019. Id. Compare Joseph A. Fortin Constr., Inc. v. Massachusetts Hous. Fin. Agency, 392 Mass. 440, 441 n.2 (1984) (judge's decision stating "no just reason for delay" and "[t]he plaintiff's claim is dismissed with prejudice" sufficient to trigger appeal rights and obligations).

The dismissal of the plaintiffs' appeal from the judgment on counts I and III is reversed, and the matter is returned to the Pittsfield District Court for the continued prosecution of the plaintiffs' appeal that was filed on July 10, 2019. [Note 5]

So ordered.