NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-476
IN THE MATTER OF THE ESTATE OF ROBERT WILLIAM ALLARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a Probate and Family Court judge admitted a contested
will to probate and denied the objector's petition for
adjudication of intestacy, the proponent of the will filed a
motion for attorney's fees and costs (fee motion), which the
judge denied. While the fee motion was pending, the objector
filed a timely notice of appeal from the underlying judgment.
The judge dismissed the objector's timely notice of appeal,
however, on the ground that he failed to file a second notice of
appeal after disposition of the fee motion. Concluding that the
objector's failure to file a second notice of appeal does not
warrant forfeiture of his appellate rights, we exercise our
discretion to reverse the order dismissing the appeal.
Background. John Allard (objector) filed a petition for
formal adjudication of intestacy and appointment as the personal representative of the estate of his brother, Robert W. Allard
(the decedent), alleging that the decedent died without a valid
will. Almost simultaneously, Brian Allard (proponent), also a
brother of the decedent, filed a petition for formal probate of
the decedent's contested will and requested appointment as
personal representative of the estate as provided in the will.
After a two-day trial on both matters, the judge allowed the
proponent's petition for probate of the will, dismissed the
objector's petition for adjudication of intestacy, and appointed
a neutral special personal representative. Final judgment on
all matters was entered on September 14, 2023.
Eleven days later, on September 25, 2023, the proponent
filed the fee motion, citing Mass. R. Civ. P. 52 (b), as
amended, 423 Mass. 1402 (1996), Mass. R. Civ. P. 59 (e), 365
Mass. 827 (1974),1 G. L. c. 215, § 45, and G. L. c. 231, § 6F,
and requested attorney's fees on the grounds that the objector
was unreasonable in refusing to accept a settlement agreement
and that his claims were "without merit . . . wholly
insubstantial, frivolous and not advanced in good faith." On
October 12, 2023, while the fee motion was pending, the objector
filed a notice of appeal from the September 14 judgment. The
A procedural order that the judge issued after the 1
pretrial conference provided, "Following the issuance of a judgment, a Motion to Alter or Amend, requesting attorney's fees, may be filed by either party."
2 judge denied the fee motion on November 7, 2023. The objector
did not file another notice of appeal after disposition of the
fee motion.
In January 2024, the proponent filed a motion to dismiss
the October 12 notice of appeal as defective, arguing that it
was automatically void under Mass. R. A. P. 4 (a) (3), as
appearing in 481 Mass. 1606 (2019). After a hearing, the judge
allowed the motion to dismiss. The objector timely appealed
from the dismissal of his appeal.
Discussion. As relevant here, Mass. R. A. P. 4 (a) (1),
requires that, in civil cases, the notice of appeal "shall be
filed with the clerk of the lower court within 30 days of the
date of the entry of the judgment, decree, appealable order, or
adjudication appealed from." The objector's October 12 notice
of appeal was timely under rule 4 (a) (1).
The rules enumerate certain motions that, when filed within
ten days of the judgment, toll the time for filing a notice of
appeal. See Mass. R. A. P. 4 (a) (2). Among the enumerated
motions are motions to amend or make additional findings of fact
under Mass. R. Civ. P. 52 (b), and motions to alter or amend a
judgment under Mass. R. Civ. P. 59 (e). See Mass. R. A. P.
4 (a) (2) (B), (C). When one of the enumerated motions is
filed, "the time to file an appeal runs for all parties from the
entry of the order disposing of the last remaining motion."
3 Mass. R. A. P. 4 (a) (2). Furthermore, if a notice of appeal is
filed before the disposition of any of the enumerated motions,
the rule provides that it "shall have no effect" and "[a] new
notice of appeal must be filed within the prescribed time
measured from the entry of the order disposing of the last such
remaining motion." Mass. R. A. P. 4 (a) (3).
The proponent filed the fee motion within the requisite
ten-day period.2 Therefore, if the fee motion was a true rule
52 (b) or rule 59 (e) motion, the October 12 notice of appeal
would have no effect under the current version of Mass. R. A. P.
4 (a) (3). The objector argues, however, that as a matter of
substance as opposed to form, the fee motion was collateral to
the underlying judgment and not a true rule 52 (b) or rule
59 (e) motion. Therefore, the objector reasons, the fee motion
did not toll the time for the objector to file his notice of
appeal, and the notice of appeal did not become ineffective
under Mass. R. A. P. 4 (a) (3).
The objector's contention has substantial force. See
Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199-202 (1988)
(unresolved question of attorney's fees separate from and does
2 The judgment entered on September 14, 2023, and the fee motion was filed eleven calendar days later, on September 25, 2023. Because September 24 was a Sunday, the ten-day filing period was extended to the following Monday. See Mass. R. A. P. 14 (a), as appearing in 481 Mass. 1626 (2019).
4 not affect finality of underlying litigation); White v. New
Hampshire Dep't of Employment Sec., 455 U.S. 445, 451 (1982)
(request for attorney's fees under 42 U.S.C. § 1988 not motion
to alter or amend the judgment because it raises issues
collateral to and separate from merits decision); Ben v.
Schultz, 47 Mass. App. Ct. 808, 814 (1999) ("A motion for
counsel fees under G. L. c. 231, § 6F, is thus not a judgment
within the scope of rule 59[e]").
We need not decide the issue, however, because recent
decisions of the Supreme Judicial Court and of this court have
foregone strict enforcement of Mass. R. A. P. 4 (a) (3) and have
given effect to notices of appeal timely filed after entry of
judgment, even where subsequent postjudgment motions would
normally have reset the appellate clock. See Roch v. Mollica,
481 Mass.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-476
IN THE MATTER OF THE ESTATE OF ROBERT WILLIAM ALLARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a Probate and Family Court judge admitted a contested
will to probate and denied the objector's petition for
adjudication of intestacy, the proponent of the will filed a
motion for attorney's fees and costs (fee motion), which the
judge denied. While the fee motion was pending, the objector
filed a timely notice of appeal from the underlying judgment.
The judge dismissed the objector's timely notice of appeal,
however, on the ground that he failed to file a second notice of
appeal after disposition of the fee motion. Concluding that the
objector's failure to file a second notice of appeal does not
warrant forfeiture of his appellate rights, we exercise our
discretion to reverse the order dismissing the appeal.
Background. John Allard (objector) filed a petition for
formal adjudication of intestacy and appointment as the personal representative of the estate of his brother, Robert W. Allard
(the decedent), alleging that the decedent died without a valid
will. Almost simultaneously, Brian Allard (proponent), also a
brother of the decedent, filed a petition for formal probate of
the decedent's contested will and requested appointment as
personal representative of the estate as provided in the will.
After a two-day trial on both matters, the judge allowed the
proponent's petition for probate of the will, dismissed the
objector's petition for adjudication of intestacy, and appointed
a neutral special personal representative. Final judgment on
all matters was entered on September 14, 2023.
Eleven days later, on September 25, 2023, the proponent
filed the fee motion, citing Mass. R. Civ. P. 52 (b), as
amended, 423 Mass. 1402 (1996), Mass. R. Civ. P. 59 (e), 365
Mass. 827 (1974),1 G. L. c. 215, § 45, and G. L. c. 231, § 6F,
and requested attorney's fees on the grounds that the objector
was unreasonable in refusing to accept a settlement agreement
and that his claims were "without merit . . . wholly
insubstantial, frivolous and not advanced in good faith." On
October 12, 2023, while the fee motion was pending, the objector
filed a notice of appeal from the September 14 judgment. The
A procedural order that the judge issued after the 1
pretrial conference provided, "Following the issuance of a judgment, a Motion to Alter or Amend, requesting attorney's fees, may be filed by either party."
2 judge denied the fee motion on November 7, 2023. The objector
did not file another notice of appeal after disposition of the
fee motion.
In January 2024, the proponent filed a motion to dismiss
the October 12 notice of appeal as defective, arguing that it
was automatically void under Mass. R. A. P. 4 (a) (3), as
appearing in 481 Mass. 1606 (2019). After a hearing, the judge
allowed the motion to dismiss. The objector timely appealed
from the dismissal of his appeal.
Discussion. As relevant here, Mass. R. A. P. 4 (a) (1),
requires that, in civil cases, the notice of appeal "shall be
filed with the clerk of the lower court within 30 days of the
date of the entry of the judgment, decree, appealable order, or
adjudication appealed from." The objector's October 12 notice
of appeal was timely under rule 4 (a) (1).
The rules enumerate certain motions that, when filed within
ten days of the judgment, toll the time for filing a notice of
appeal. See Mass. R. A. P. 4 (a) (2). Among the enumerated
motions are motions to amend or make additional findings of fact
under Mass. R. Civ. P. 52 (b), and motions to alter or amend a
judgment under Mass. R. Civ. P. 59 (e). See Mass. R. A. P.
4 (a) (2) (B), (C). When one of the enumerated motions is
filed, "the time to file an appeal runs for all parties from the
entry of the order disposing of the last remaining motion."
3 Mass. R. A. P. 4 (a) (2). Furthermore, if a notice of appeal is
filed before the disposition of any of the enumerated motions,
the rule provides that it "shall have no effect" and "[a] new
notice of appeal must be filed within the prescribed time
measured from the entry of the order disposing of the last such
remaining motion." Mass. R. A. P. 4 (a) (3).
The proponent filed the fee motion within the requisite
ten-day period.2 Therefore, if the fee motion was a true rule
52 (b) or rule 59 (e) motion, the October 12 notice of appeal
would have no effect under the current version of Mass. R. A. P.
4 (a) (3). The objector argues, however, that as a matter of
substance as opposed to form, the fee motion was collateral to
the underlying judgment and not a true rule 52 (b) or rule
59 (e) motion. Therefore, the objector reasons, the fee motion
did not toll the time for the objector to file his notice of
appeal, and the notice of appeal did not become ineffective
under Mass. R. A. P. 4 (a) (3).
The objector's contention has substantial force. See
Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199-202 (1988)
(unresolved question of attorney's fees separate from and does
2 The judgment entered on September 14, 2023, and the fee motion was filed eleven calendar days later, on September 25, 2023. Because September 24 was a Sunday, the ten-day filing period was extended to the following Monday. See Mass. R. A. P. 14 (a), as appearing in 481 Mass. 1626 (2019).
4 not affect finality of underlying litigation); White v. New
Hampshire Dep't of Employment Sec., 455 U.S. 445, 451 (1982)
(request for attorney's fees under 42 U.S.C. § 1988 not motion
to alter or amend the judgment because it raises issues
collateral to and separate from merits decision); Ben v.
Schultz, 47 Mass. App. Ct. 808, 814 (1999) ("A motion for
counsel fees under G. L. c. 231, § 6F, is thus not a judgment
within the scope of rule 59[e]").
We need not decide the issue, however, because recent
decisions of the Supreme Judicial Court and of this court have
foregone strict enforcement of Mass. R. A. P. 4 (a) (3) and have
given effect to notices of appeal timely filed after entry of
judgment, even where subsequent postjudgment motions would
normally have reset the appellate clock. See Roch v. Mollica,
481 Mass. 164, 165 n.2 (2019); Tocci Bldg. Corp. v. Iriv
Partners, LLC, 101 Mass. App. Ct. 133, 136 n.5 (2022). The
reason for suspending an appeal pending the disposition of
postjudgment motions is to prevent "having an appeal work its
way up the ladder from a judgment which might be altered."
Roch, supra, quoting Anthony v. Anthony, 21 Mass. App. Ct. 299,
301 (1985). But the concerns underlying the rule are not
implicated here, where the fee motion was not only collateral to
the underlying judgment, but was denied and thus had no effect
whatsoever on the underlying judgment. The objector's "failure
5 in technical compliance" did not prejudice the proponent; the
procedural misstep "need not -- and should not -- require the
perpetrator to be undone" (citation omitted). Chongris v. Board
of Appeals of Andover, 17 Mass. App. Ct. 999, 1000-1001 (1984).
Conclusion. "Although appellate courts ordinarily defer to
a trial court judge's dismissal of an appeal absent an abuse of
discretion, an appellate court nevertheless remains authorized
to exercise [its] own independent judgment as to what is
appropriate in the circumstances of a given case" (quotation and
citation omitted). Neuwirth v. Neuwirth, 85 Mass. App. Ct. 248,
263 (2014). In the exercise of our discretion, we reverse the
order dismissing objector John Allard's notice of appeal dated
October 12, 2023.3 The notice of appeal shall be reinstated, and
the register shall promptly complete assembly of the record.
So ordered.
By the Court (Massing, Englander & D'Angelo, JJ.4),
Clerk
Entered: July 9, 2025.
3 The appellees' request for an award of their appellate attorney's fees is denied.
4 The panelists are listed in order of seniority.