Davenport v. Broadhurst

Massachusetts Appeals Court

Davenport v. Broadhurst

406 N.E.2d 1030, 10 Mass. App. Ct. 182, 1980 Mass. App. LEXIS 1219

CourtMassachusetts Appeals Court

DecidedJuly 2, 1980

StatusPublished

Cited by10 cases

This text of 406 N.E.2d 1030 (Davenport v. Broadhurst) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davenport v. Broadhurst, 406 N.E.2d 1030, 10 Mass. App. Ct. 182, 1980 Mass. App. LEXIS 1219 (Mass. Ct. App. 1980).

Pincite

Opinion

Nolan, J.

The plaintiff commenced his action by filing a complaint in the Probate Court for Franklin County, seeking in the main to enjoin the defendants from interfering with his use of certain roads near his property in Shelburne. *183 In responding to the complaint, the defendants denied almost all of its significant allegations and interposed counterclaims for damages as a result of the plaintiff’s alleged trespass and creation of a nuisance on the defendants’ property.

Following the entry of a judgment for the plaintiff, the defendants filed a motion for relief from judgment pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). The defendants have appealed from both the final judgment and the denial of their postjudgment motion. One procedural issue must be addressed at the threshold.

1. Timeliness of defendants’ appeal. The first issue before the court is the timeliness of the defendants’ appeal from the judgment entered on November 22, 1976. The defendants’ counsel mailed a motion for additional findings to counsel for the plaintiff on December 2, 1976, pursuant to Mass.R.Civ.P. 52(b), 365 Mass. 817 (1974). The original of the motion was received in the clerk’s office on December 6, 1976, and the motion was denied on December 24, 1976. A notice of appeal to this court was filed on January 24, 1977, a Monday.

Rule 4 of the Massachusetts Rules of Appellate Procedure, 365 Mass. 846 (1974), 2 requires the filing of a notice of appeal in civil cases within thirty days of the entry of judgment unless the Commonwealth or an officer or agency thereof was a party, in which case a period of sixty days is provided. This rule recognizes the effect of a motion to amend findings by a direction that the thirty day period “shall commence to run and shall be computed from the making” of an order in response to such a motion. Whether a motion is timely filed under rule 4 is governed by the provisions of the applicable Massachusetts Rules of Civil Procedure. See 9 Moore’s Federal Practice par. 204.12(2), at 4-76 (2d ed. 1980). The cognate statute, G. L. c. 215, § 9, acknowledges a right of *184 appeal within thirty days of the entry of the judgment. Though the statute gives no recognition to the effect of an intervening motion, in cases of apparent but not irreconcilable conflict between the rule and the statute the two should be read to find consistency rather than conflict; therefore deference will be paid to the rule. Boston Seamans Friend Soc., Inc. v. Attorney Gen., 379 Mass. 414, 416 (1980). See G. L. c. 215, § 10. The linkage is as follows. The appeal is timely if filed within thirty days of the making of the order on the motion to amend if the motion to amend was timely filed in the lower court (Mass.R.A.P. 4). Thus here the claim of appeal was timely if filed within thirty days of the denial of the motion to amend, and the motion was timely if made within ten days of the entry of judgment (Mass.R.Civ.P. 52[b], 365 Mass. 817 [1974]). The motion here was made within ten days of the entry of judgment if the motion is deemed to have been made when served though not yet filed. We find that the motion was served within the ten-day period and we rule, for the reasons given below, that the motion was made when served. Accordingly, we hold that the appeal was timely.

The pith of the problem is the meaning ascribed to the word “made” in the pertinent part of rule 52(b): “Upon motion of a party made not later than 10 days after entry of judgment the court may amend its findings . . . .” We look respectfully to the interpretation given by the Federal courts to the cognate provisions of the Federal Rules of Civil Procedure. Rollins Environmental Servs., Inc. v. Superior Court, 368 Mass. 174, 179-180 (1975). The relevant part of rule 52(b) reads exactly the same as its Federal counterpart. In Keohane v. Swarco, Inc., 320 F.2d 429, 431-432 (6th Cir. 1963), the court ruled that a motion under the Fed.R.Civ.P. 52(b) was timely made because it was served within ten days though it was not filed until the eleventh day. Afran Transport Co. v. S/T Maria Venizelos, 450 F. Supp. 621, 623 n.2 (E. D. Pa. 1978), is to the same effect. Except for a few instances in which filing is expressly required, the rules seem to stress service of papers more *185 strenuously than their filing. See 5A Moore’s Federal Practice par. 52.11 (2d ed. 1980); 9 Wright & Miller, Federal Practice and Procedure § 2582 (1971). Filing may be accomplished either before or within a reasonable time after service. Mass.R.Civ.P. 5(d), 365 Mass. 746 (1974). The plaintiff filed the motion to amend findings within four days of service. This was within a reasonable time.

“Service by mail is complete upon mailing.” Mass.R. Civ.P. 5(b), 365 Mass. 745 (1974). Service of the motion in this case was made on December 2, 1976, which was the tenth day following the judgment of November 22, 1976. The day of the entry of judgment is excluded from the computation, but “ [t]he last day of the period so computed shall be included” unless it is a Saturday, a Sunday or a legal holiday. Mass.R.Civ.P. 6(a), 365 Mass. 747 (1974).

The thirty-day period within which a notice of appeal had to be filed started to run on December 24, 1976, the date of the denial of the motion to amend. It expired on January 23, 1977, a Sunday. The notice was timely filed on Monday, January 24, 1977. Accordingly, the appeal is properly before us.

2. The case on the merits. We have the benefit of the trial judge’s generous findings of fact, which will not be disturbed unless they are clearly erroneous. Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). A reviewing court will consider a finding clearly erroneous only if “on the entire evidence [it] is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948), quoted with approval in Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977). We are assisted here by only a portion of the transcript of evidence. On the basis of the evidence available to us, we do not conclude that the findings of the judge in this case are clearly erroneous. References will be made to a plan which the judge incorporated in his findings and the essential substance of which has been reproduced as an appendix to this opinion in order *186 to render intelligible the various parcels and roads which play parts in this case.

Issues presented for review by the defendants Emory C. and Jennie S. Broadhurst are somewhat different from those issues raised by the defendants Richard E. and Elizabeth L. Broadhurst. However, certain issues are common to both appeals.

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