Gianelli v. Vatco Industries, Inc.

1986 Mass. App. Div. 10, 1986 Mass. App. Div. LEXIS 14
CourtMassachusetts District Court, Appellate Division
DecidedFebruary 20, 1986
StatusPublished
Cited by5 cases

This text of 1986 Mass. App. Div. 10 (Gianelli v. Vatco Industries, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gianelli v. Vatco Industries, Inc., 1986 Mass. App. Div. 10, 1986 Mass. App. Div. LEXIS 14 (Mass. Ct. App. 1986).

Opinion

Doyle, P.J.

This is an action in tort in which the plaintiff seeks damages for the permanent loss of vision in his right eye which resulted from his use of an allegedly defective product manufactured by the defendant.

The plaintiffs complaint was filed on June 20, 1983. The defendant submitted interrogatories to be answered by the plaintiff on October 25, 1983. A Dist./Mun. Cts. R. Civ. P., Rule 33(a) application for final dismissal was filed by the defendant on December 19, 1983. Three arguments to extend time for the plaintiff to answer interrogatories were thereafter filed hy the parties. The expiration date of the third and last extension period was April 11, 1984. No answers to interrogatories were submitted by the plaintiff.

On April 27, 1984, the defendant filed a re-application for final dismissal pursuant to Rule 33(a).

On December 13, 1984, the plaintiff filed a Dist./Mun. Cts. R. Civ. P., Rule 60 (b) (1) motion for relief from judgment. Said motion was denied; and no request for a report challenging this order was filed by the plaintiff.

On March 19, 1985, the plaintiff filed a Motion for Reconsideration of’ the denial of his motion for relief from judgment. This motion was not presented to the first judge who had entertained and denied the plaintiff s Rule 60 motion, but was instead argued before a second judge who presided in the motion session of the trial court on the day in question. The second judge conducted a full hearing on the merits and ultimately denied the plaintiffs motion for reconsideration of the first judge’s Rule 60 disposition.

The plaintiff now claims to be aggrieved by the second judge’s denial of his reconsideration motion and by the refusal of the second judge to rule on requests for findings of fact submitted in conjunction with said motion.

1. Rule 58 (a) of the Dist./Mun. Cts. R. Civ. P. states, in relevant part, “Every judgment shall be set forth on a separate document. . . .A judgment is effective only when so set forth . . . and when entered as provided in Rule 79(a).”

An examination of the docket in this case, as suggested by the plaintiffs written arguments, renders it clear that the trial court clerk failed to date and enter chronologically, in accordance with Rule 79 (a), a final [11]*11dismissal of this action.1 See Abbott v. John Hancock Mut. Life Ins. Co., 18 Mass. App. Ct. 508, 511 n.5 (1984). Both the separate document and chronological entry requirements of Rules 58(a) and 79(a) must be ' satisfied to render a judgment “effective” so as to provide a basis for an appeal. Levy v. Bendetson, 6 Mass. App. Ct. 558, 561 (1968). In the absence of such an effective judgment herein, we are compelled to dismiss this appeal as premature. Tisei v. Building Inspec. of Marlborough, 5 Mass. App. Ct. 328, 330 (1977). See also, Zoning Brd. of App. of Greenfield v. Housing App. Comm., 15 Mass. App. Ct. 553, 555 (1983); Salley, Pet., 11 Mass. App. Ct. 40 (1980); Continental Bronze Co. v. Salvo & Armstrong Steel Co., 8 Mass. App. Ct. 799, 800 (1979); Swift & Co. v. Superior Pet Products, 5 Mass. App. Ct. 904 (1977).

In entering this dismissal, we remain cognizant that insistence upon compliance with these procedural rules may in some cases appear unfairly “to prevent the parties’ exercise of their post trial and appellate ■rights on the basis of clerical niceties . . . especially . . . where the parties have little, if any, control over the manner in which clerks perform their duties.” Lewis v. Emerson, 391 Mass. 517, 520 (1984). An intermediate appellate court is not at liberty, however, to disregard or rewrite those rules which govern practice before it and before a trial court. Nor are we so inclined. A common sense prerequisite to the exercise of appellate jurisdiction is the completion of proceedings in the trial court. The separate document and docket entry requirements of Rules 58 (a) and 79 (a) are designed to identify such completion and thus “to clarify the time from which post judgment action shall be commenced.” Lewis v. Emerson, 391 Mass. at 519. Questions as to entry of judgment are particularly critical in cases such as the one sub judice where no trial on the merits of the parties’ controversy has ever been held. In this case, final judgment would have been a function of nothing more than procedural rules in the . form of the parties’ adherence to, or disregard of, Rule 33 discovery time ' periods and the clerk’s notation of the expiration thereof.

2. The absence of an entry of any judgment herein logically dictates that the plaintiffs efforts to secure relief from a judgment by means of a Rule 60 (b) (1) motion and a motion for reconsideration were premature and inappropriate. Given the prejudgment and pre-trial posture of this case, it is to be anticipated that both parties will pursue on remand divergent avenues for final dismissal or additional time pursuant to Rule 33 (a). See, generally, Commonwealth v. One Thousand Three Hundred and Forty Dollars, 16 Mass. App. Ct. 950 (1983); Koonce v. Aldo Realty Trust, 8 Mass. App. Ct. 199 (1979); Boston v. Boston Police Patrolman’s Assoc., Inc., 8 Mass. App. Ct. 220, 221 (1979); Harrow v. Board of App. of Pittsfield, 7 Mass. App. Ct. 937 (1979).

A dismissal predicated on the defendant’s Rule 33 re-application of April 27, 1984 is not necessarily required on remand. We note in this regard that the trial justice may still enjoy some latitude in fashioning appropriate relief for one or both of the parties herein. The reason is evident from an examination of the docket and the mandatory timetable [12]*12of Dist./Mun. Cts. R. Civ. P., Rule 33(a). The latter provides, in relevant part:

For failure to file timely answers to interrogatories . . . the interrogating party may file a written application . . . requesting that final judgment be entered for . . . dismissal. Upon filing of such application, the clerk shall notify all parties that final judgment for . . . dismissal will be entered unless the answers be filed either within 30 days from the date of the notice or prior to the filing of a reapplication for a final judgment of dismissal. . . whichever is later (emphasis supplied).
At the expiration of 30 days from the date of the notice or such further time as the parties may agree upon in writing filed in court or the court may allow, the interrogating party may reapply in writing for entry of final judgment for relief or dismissal. If no answers are then on file the clerk shall enter an appropriate judgment. . . (emphasis supplied).

The last extension period for answers to interrogatories which was agreed to by the parties ended on April 11, 1984. It was impermissible for the defendant to reapply for dismissal until the expiration of a subsequent thirty day period. The defendant’s reapplication for dismissal of April 27, 1984 was thus premature and improperly terminated the plaintiffs right, at that time, to submit answers “within 30 days . . . or prior to the filing of a reapplication.” Plaintiffs counsel stated in oral argument that answers to interrogatories are now on filé in the trial court in conjunction with a motion to file said answers late.

3. A resolution of these competing rights and interests of the parties .

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Bluebook (online)
1986 Mass. App. Div. 10, 1986 Mass. App. Div. LEXIS 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gianelli-v-vatco-industries-inc-massdistctapp-1986.