Brown v. Quinn

537 N.E.2d 1258, 27 Mass. App. Ct. 288

• Court: Massachusetts Appeals Court
• Decided: May 10, 1989
• Docket: 88-P-833
• Status: Published

Opinions

Greaney, C.J.

We are concerned, in this case, with an issue of practice before the Appellate Division of the District Courts. Specifically, we must interpret that portion of Dist.Mun.Cts.R.Civ.P. 64(c)(5) (1975), set forth in the margin,³ and determine the effect of the clerk’s failure to send the notice specified in the rule on a party’s obligation to petition for the establishment of a report within three months after it has been filed.

The background facts are as follows. The plaintiffs (buyers of a single-family home built by the defendant and sold by him as trustee) brought this action in the Natick District Court asserting claims of breach of contract (as to certain construction warranties) and violations of G. L. c. 93A. After trial, a District Court judge found for the plaintiffs on the contract claim in the amount of $12,707.56, and on the G. L. c. 93A claim in the amount of $37,121.68, representing treble damages. The docket entry for January 17, 1986, indicates entry of judgment as well as the judge’s findings of fact.

The defendant subsequently filed a motion seeking to amend the court’s findings and judgment and a motion for a new trial. After hearing, the trial judge denied these motions.

The defendant filed a draft report under Dist.Mun.Cts.R.Civ.P. 64 (1975). The report was not settled and signed by the trial judge until nine months after it had been filed.

The case proceeded to the Appellate Division, which ordered that the report be dismissed pursuant to Dist.Mun.Cts.R.Civ.P. 64(c)(5) (1975). The Appellate Division stated: “Neither a request for an extension of time for draft report settlement, nor a petition to establish a draft report was submitted by the defendant to preserve the viability of his appeal.” The defendant then appealed to this court.

The defendant argues (1) that no formal judgment was ever entered on the docket as required by Dist.Mun.Cts.R.Civ.P. 58(a), and, as a consequence, the time for the establishment of a draft report has not yet commenced to run and will not commence to run until such a judgment is entered, and (2) that the failure of the clerk to furnish notice consistent with the last sentence of rule 64(c)(5), suspends the running of the three-month time period established by the rule for settlement of the draft report. We reject these arguments.

1. The defendant’s argument concerning the absence of the entry of a formal judgment lacks merit. The trial court docket in the case contains a notation which reads: “Entry of judg and finding Findings (mailed 1/17/86).” While the maintenance of the docket of the case is unsatisfactory in several respects, there is no question that the defendant received the court’s findings and proceeded to deal with the case by means of postjudgment motions, appeal, and preparation of a draft report. The defendant did so as if a judgment on a separate piece of paper had been entered in accordance with Dist.Mun.Cts.R.Civ.P. 58(a). Further, the defendant did not raise with the Appellate Division his present argument about the absence of the entry of a judgment on a separate piece of paper. We conclude that the document entered on January 17, 1986, which bore the docket entry of “judg[ment] and finding”, satisfied the requirements for a judgment set forth in Lewis v. Emerson, 391 Mass. 517, 518-520 (1984), and was treated as a judgment by the defendant. Although that document contained no separate order for judgment, “no confusion ... [in fact] exist[ed] concerning its import . . . .”391 Mass. at 520. In the circumstances, the requirements of Dist.Mun.Cts.R.Civ.P. 58(a) were met. We would consider the case to be different if ambiguity in the entry of judgment had caused the defendant not to initiate appellate proceedings.

2. Rule 64(c)(5) provides that the “cause shall proceed as though no request for a report had been made” unless the draft report has been acted upon within three months of its filing or the Appellate Division for cause shown has extended the time for such action. The provision of the rule just described is intended to be automatic. The provision in the rule for notice by the clerk is independent and unrelated to the provision that precedes it, and the procedural duty imposed on the clerk to send notice is directory in nature. Such is the principle applied in cases dealing with generally analogous notice obligations. See, e.g., Bath Iron Works, Ltd. v. Savage, 262 Mass. 123, 127 (1928); Home Owners’ Loan Corp. v. Sweeney, 309 Mass. 26, 29 (1941). Cf. Locke v. Slater, 387 Mass. 682, 685-686 (1982) (failure of clerk to furnish notice of entry of judgment as provided for by Dist.Mun.Cts.R.Civ.P. 77(d) [1975] does not suspend a party’s obligation to perfect a timely appeal to the Appellate Division). The failure of the clerk to furnish notice, therefore, is of no consequence in determining the aggrieved party’s rights or obligations. See Sullivan v. Jordan, 310 Mass. 12, 15 (1941); Higgins v. First Natl. Stores, Inc., 340 Mass. 618, 620 (1960). The rule puts the burden on the aggrieved party who has the principal interest in keeping the case alive. The case is not one of slight neglect because the draft report languished for nine months before it was acted upon.

3. The decision of the Appellate Division indicates that it found no basis to exercise any authority it may have possessed to excuse the defendant’s failure to comply with the deadline established by the rule. Matters of forgiveness of procedural missteps are generally within the sound discretion of the lower court vested with the power to forgive. See Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 433-434 (1979).

Order of the Appellate Division affirmed.

3 “If final action by the trial judge upon any draft report, other than upon an interlocutory matter, is not taken within three months after the filing thereof, and no petition for establishment of a report has been filed, the cause shall proceed as though no request for report had been made, unless the appellate division for cause shown shall allow further time. Notice under this rule shall be sent by the clerk to the parties in the case fourteen days at least before the three months or extended period expires.”