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
25-P-692
ROCKLAND TRUST COMPANY
vs.
ROBERT J. LANGONE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This matter, which has been in litigation for an
astonishing twenty-plus years, originates from two promissory
notes issued in the 1980s to Rockland Trust Company (Rockland
Trust) by Aunyx Corporation (Aunyx), a now defunct corporation.
Rockland Trust first filed an action to collect on the notes in
1991, but that action was dismissed by agreement of the parties.
Over ten years later, after Aunyx was dissolved, Rockland Trust
filed this action in the District Court against Robert J.
Langone, as guarantor of Aunyx's obligations, seeking again to
collect on the notes. After a bench trial, Rockland Trust
prevailed on its claims, and judgment entered in its favor in
January 2007. That judgment was later amended in February 2009 and April 2010.
In October 2010, after his unsuccessful appeal to a panel
of this court, Langone moved in the District Court for relief
pursuant to Mass. R. Civ. P. 60 (b) (6), 365 Mass. 828 (1974).
The judge who presided over the original trial (first judge)
allowed the motion on the ground that Langone's counsel had
failed to raise a potentially dispositive argument at the trial.
After Langone was then allowed to assert a new counterclaim for
breach of contract, Rockland Trust's claims and Langone's
counterclaims were litigated for the next several years,
resulting in new judgments that entered in 2021. Both parties
appealed from the judgments to the Appellate Division of the
District Court, which dismissed Rockland Trust's appeal based on
its noncompliance with Dist./Mun. Cts. R. A. D. A. 8C (1994),
and rejected Langone's appeal on the merits.
The parties' cross-appeals from the Appellate Division's
decision are now before us. While the briefs raise numerous
issues, we need decide only two of them to resolve the appeals.
First, we conclude that the Appellate Division erred in
dismissing Rockland Trust's appeal. Second, on the merits of
Rockland Trust's appeal, we conclude that the first judge erred
in allowing Langone's motion for relief under rule 60 (b) (6).
Accordingly, we reverse the decision of the Appellate Division
2 dismissing the appeal and the first judge's order allowing the
motion for relief under rule 60 (b) (6), vacate the 2021
judgments, and remand the matter to the District Court for
reinstatement of the April 2010 amended judgment and for further
proceedings.
Background. The following essential facts are undisputed.
In May 1984 and May 1987, Aunyx issued two promissory notes to
Rockland Trust in the amounts of $95,633 and $12,493.11,
respectively. Langone was then the president of Aunyx and in
June 1984 executed an unlimited guaranty of its obligations to
Rockland Trust.
In 1991 Rockland Trust filed a complaint in the District
Court against Aunyx and Langone, seeking to collect the amounts
allegedly owed under the promissory notes. The 1991 action was
later dismissed by agreement of the parties. The terms of this
agreement, although the subject of later litigation, are not
apparent from the record.
In 2003, over five years after Aunyx was formally
dissolved, Rockland Trust filed this action against Langone,
claiming that he was liable under the guaranty to pay the
remaining amounts owed under the promissory notes. In January
2007, after a bench trial, the first judge ruled in favor of
Rockland Trust on its claims and on Langone's counterclaim under
3 G. L. c. 93A, and judgment entered for Rockland Trust in the
amount of $43,179.29 in damages, plus $15,000 in attorney's fees
and $5,648.50 in costs. Following extensive postjudgment motion
practice and a stop at the Appellate Division, the parties'
various appeals and cross-appeals were docketed in this court.
In December 2009 a panel of this court issued an unpublished
memorandum and order affirming in all respects, and the Supreme
Judicial Court denied further appellate review in January 2010.
In October 2010 Langone returned to the District Court and
moved under rule 60 (b) (6) for relief from all judgments
previously entered against him. Langone argued that he was
entitled to relief based on allegedly unethical conduct by
Rockland Trust's attorney and the alleged recent discovery that
the 1984 note was "rolled into" a subsequent note, which was
stamped "PAID." The court took no action on Langone's motion
until a hearing was held in February 2014. After that hearing
Langone filed a supplemental memorandum in which he argued that
"[a]s established at the hearing" Rockland Trust had "falsely
represented" at trial that the 1984 note "was Note #01218 when
in actuality it was an entirely different Note #5?128."
In July 2014 the first judge allowed Langone's motion and
vacated the original judgment on the ground that "the
discrepancy between the note used in this underlying action and
4 the note identified on [Rockland Trust's] accounting ledger"
raised a question "whether or not the debts which were the
subject of these notes were paid or perhaps rolled into other
notes and then satisfied." A year later, Langone filed a motion
to assert a new counterclaim for breach of contract, which a
second judge allowed over Rockland Trust's opposition. This
counterclaim was tried before a jury in May and June 2018, while
Rockland Trust's claims and Langone's c. 93A counterclaim were
reserved for decision by the trial judge (third judge).
After multiple days of testimony, the jury returned a
special verdict finding in Langone's favor on his breach of
contract claim. The third judge then issued a decision on the
jury-waived claims, finding in Langone's favor on Rockland
Trust's claim under the 1984 note, and in Rockland Trust's favor
on its claim under the 1987 note and Langone's c. 93A
counterclaim. Subsequently, the third judge allowed both
parties' respective motions to assess prejudgment interest from
the date of the breach of contract and denied Rockland Trust's
motion for attorney's fees relating to its claim under the 1987
note. On March 31, 2021, judgments entered accordingly in the
amounts of $44,901.61 for Rockland Trust and $592,628.02 for
Langone.
5 On April 6, 2021, Rockland Trust filed a timely notice of
appeal to the Appellate Division. On May 17, 2021, Rockland
Trust filed a designation that it was appealing on the record of
proceedings pursuant to Dist./Mun. Cts. R. A. D. A. 8C (rule 8C
designation).1 Langone filed his own notice of appeal to the
Appellate Division on April 16, 2021.
On November 24, 2021, Langone moved to dismiss Rockland
Trust's appeal on the ground that Rockland Trust did not file
its rule 8C designation within thirty days of filing its notice
of appeal, as required by rule 8C. After a hearing a fourth
judge denied Langone's motion. Langone then filed another
notice of appeal to the Appellate Division from the fourth
judge's order.
In a January 2025 decision, the Appellate Division
dismissed Rockland Trust's appeal, concluding that Rockland
Trust's eleven-day delay in filing its rule 8C designation
warranted the penalty of dismissal. The Appellate Division
rejected Langone's appeal from the underlying judgments on the
merits.
1 Although the District Court docket reflects that Rockland Trust filed its rule 8C designation on May 14, 2021, Rockland Trust does not dispute that that is an error and the actual filing date is May 17.
6 Discussion. 1. Dismissal of Rockland Trust's appeal. The
rules governing appeals to the Appellate Division provide for
three alternative routes of appeal. As pertinent here, rule 8C
allows an appellant to appeal based on "the record of
proceedings." Dist./Mun. Cts. R. A. D. A. 8C. To proceed under
this route, the appellant must file a designation of its intent
to do so, accompanied by a copy of the transcript order or a
certification that production of a transcript is not necessary.
See id. Where, as here, no procedures under rules 8A or 8B were
initiated, the rule 8C designation must be filed within thirty
days of the filing of the notice of appeal. See id.
Rockland Trust does not dispute that it filed its rule 8C
designation eleven days too late. It argues, however, that the
Appellate Division erred in dismissing its appeal because the
fourth judge's order denying Langone's motion to dismiss the
appeal was not an appealable order and, even were it appealable,
the fourth judge did not abuse his discretion in denying the
motion. We agree with the latter contention and thus need not
reach the former.2
2 As Rockland Trust observes, several Supreme Judicial Court opinions from the mid-twentieth century endorse the proposition that "[a]n order denying a motion to dismiss an appeal is neither an interlocutory nor a final decree, and is not appealable." MacNeil Bros. Co. v. State Realty Co. of Boston, 334 Mass. 706, 706 (1956). See also, e.g., Thayer Co. v. Binnall, 326 Mass. 467, 471 (1950). It is unclear from those
7 In determining whether a procedural error warrants
dismissal of an appeal, "a distinction is taken between serious
missteps and relatively innocuous ones." Schulte v. Director of
Div. of Employment Sec., 369 Mass. 74, 79 (1975). Some errors,
such as those relating to the timely institution of an appeal,
"are seen on their face to be so repugnant to the procedural
scheme, so destructive of its purposes, as to call for dismissal
of the appeal." Id. With respect to other errors, however,
"the judge is to consider how far they have interfered with the
accomplishment of the purposes implicit in the [procedural]
scheme and to what extent the other side can justifiably claim
prejudice" and then "decide whether the appeal should go forward
without more, or on terms, or fail altogether." Id. at 80.
Here, without engaging in that inquiry, the Appellate
Division determined that Rockland Trust's "failure to file a
timely appeal on the record of proceedings designating the
appellant's election to proceed under [r]ule 8C constitute[d] a
serious procedural misstep, the presumptive penalty for which is
opinions, however, whether they are stating a rule of general applicability or a rule specific to the procedures of the Supreme Judicial Court at the time. Cf. Karen Constr. Co. v. Lizotte, 396 Mass. 143, 145-146 (1985) (reviewing and affirming judge's order denying plaintiff's motion to dismiss defendant's appeal as untimely). Thus, where we can reach a decision on a different ground, we think it prudent to do so.
8 the dismissal of the appeal." The Appellate Division then
determined that the only way Rockland Trust could have avoided
dismissal was to bring a motion to enlarge under Dist./Mun. Cts.
R. A. D. A. 14 (b), setting forth good cause for its delay in
filing the rule 8C designation. Because Rockland Trust did not
bring such a motion, the Appellate Division concluded that the
fourth judge had no discretion to enlarge the rule 8C time
period and that dismissal of Rockland Trust's appeal was thus
required as a matter of law.
We agree with Rockland Trust that this was error. Rockland
Trust's delay in filing its rule 8C designation was not, as the
Appellate Division suggested, akin to a failure to institute a
timely appeal. There is no dispute that Rockland Trust filed a
timely notice of appeal from the judgments; its failure to file
its rule 8C designation within thirty days of the notice, while
a procedural misstep, was not one that affected the validity of
the appeal. See Dist./Mun. Cts. R. A. D. A. 3 (a). Moreover,
that Rockland Trust did not file a motion to enlarge under rule
14 (b) did not justify dismissal of its appeal as a matter of
law. Rockland Trust cured its noncompliance with rule 8C within
eleven days of the deadline, and Langone did not file his motion
to dismiss the appeal until over six months later. Meanwhile,
transcripts were filed with the court, and Rockland Trust took
9 steps to perfect its appeal by filing a supplement to its rule
8C designation. In these circumstances Rockland Trust could
reasonably have believed that it did not need to file a motion
to enlarge. Cf. Mass. R. A. P. 10 (c), as appearing in 481
Mass. 1618 (2019) (appeal may not be dismissed based on
appellant's noncompliance with procedural rules governing
assembly of record if appellant cures noncompliance before
hearing on motion to dismiss).
Contrary to the Appellate Division's reasoning, the
relevant question is not one of law, but whether the fourth
judge abused his discretion in denying Langone's motion to
dismiss Rockland Trust's appeal. See Karen Constr. Co. v.
Lizotte, 396 Mass. 143, 146 (1985) (denial of motion to dismiss
appeal reviewed for abuse of discretion). Cf. Scheuer v.
Mahoney, 80 Mass. App. Ct. 704, 708 (2011) (dismissal of appeal
reviewed for abuse of discretion). Indeed, the Appellate
Division's own precedent recognizes that judges have "broad
discretion" to extend the deadlines for complying with rule 8C
(quotation and citation omitted). Choice Health v. Devcon
Enters., 2006 Mass. App. Div. 93, 94 (2006). We see no abuse of
that broad discretion on the record before us. Rockland Trust
missed the rule 8C deadline by only eleven days and was
otherwise diligent in prosecuting its appeal, and Langone does
10 not, and cannot reasonably, claim that he was prejudiced by the
slight delay. The fourth judge could have determined in his
discretion that the extreme penalty of dismissal was unwarranted
on these facts. See id. at 94-95 (judge was within discretion
to allow enlargement of time to comply with rule 8C where
appellant took other steps to perfect appeal and three-week
delay in filing rule 8C designation "in no way prejudiced"
appellee).
Moreover, Langone's failure to file a transcript of the
motion to dismiss hearing with the Appellate Division precludes
us from reaching the opposite conclusion. We cannot blindly
accept Langone's representation that the transcript would not
make any difference to our resolution of the issue. Because we
do not know what was said at the hearing, we have no basis on
which to conclude that the fourth judge abused his discretion in
denying Langone's motion. See Karen Constr. Co., 396 Mass. at
146 ("Given the broad discretion granted to the judge in this
matter and the opportunity he had to hear counsel's argument, we
cannot say that he abused his discretion in denying the
[plaintiff's] motion to dismiss the [defendant's] appeal");
Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995) (appellant's
obligation to include parts of records essential for review "is
11 a fundamental and long-standing rule of appellate civil
practice" [quotation and citation omitted]).
2. Merits.3 Rockland Trust argues that the March 2021
judgments should be reversed on various, alternative grounds,
including that the first judge should not have allowed Langone's
motion under rule 60 (b) (6) for relief from the original
judgment. We agree that the first judge erred in vacating the
original judgment and thus need not address Rockland Trust's
other arguments.
"In the interest of finality of judgments, relief under
rule 60 (b) (6) is only to be granted in extraordinary
circumstances." Sahin v. Sahin, 435 Mass. 396, 406 (2001). A
judge may allow a motion under rule 60 (b) (6), the "catchall
provision," only "when justified by some reason other than those
set forth in rule 60 (b) (1)-(5)." Id. at 406-07.
3 Langone argues in a footnote in his brief that, in the event we were to reverse the Appellate Division's dismissal of Rockland Trust's appeal, the appropriate course of action would be to remand the appeal to the Appellate Division for decision on the merits. Rockland Trust counters in its reply brief that we should reach the merits in the first instance because a remand would only result in additional delay. When asked about this issue at oral argument, Langone's counsel did not take a firm position on it and instead deferred to the court's discretion. In the circumstances, and because the merits of Rockland Trust's appeal have been briefed, we will exercise our discretion to reach them.
12 As mentioned, the first judge allowed Langone's motion
based on the alleged discrepancy between the number on the 1984
note and the number on Rockland Trust's accounting ledger, which
the first judge found raised a question whether Langone had in
fact paid the note. Langone's counsel did not make this
argument at trial, even though both the 1984 note and the
accounting ledger had been admitted in evidence. Nonetheless,
drawing an analogy to the right of effective assistance of
counsel in criminal cases, the first judge concluded that
vacatur of the original judgment was warranted because "justice
would be defeated if the court were to ignore the deficiency in
[Langone's] presentation at trial."
While well intentioned, this was not a proper basis for
granting rule 60 (b) (6) relief. A motion to vacate based on
inattention or negligence by counsel falls "within the purview
of rule 60 (b) (1)," which applies to "mistake, inadvertence,
surprise, or excusable neglect." Kennedy v. Beth Israel
Deaconess Med. Ctr., Inc., 73 Mass. App. Ct. 459, 464 (2009).
See Tibbits v. Wisniewski, 27 Mass. App. Ct. 729, 731 (1989).
Motions under rule 60 (b) (1) must be brought within one year of
entry of judgment, and this "time limit cannot be extended."
Chavoor v. Lewis, 383 Mass. 801, 803 (1981). Here, Langone
filed his motion more than three years after the original
13 judgment on liability entered in January 2007. The court was
therefore "without power to entertain" the motion. Spadorcia v.
South Shore Oral Surgery Assocs., Inc., 17 Mass. App. Ct. 362,
364 (1984). We are unpersuaded by Langone's contention that the
one-year limitation does not apply because his motion expressly
sought relief under rule 60 (b) (6). It is the substance, not
the title, of the motion that matters, and even "egregious
inattention of counsel" does not allow a party to use the
catchall provision to "circumvent[] the time limits written into
rule 60 (b) in clauses (1), (2), and (3)." Tibbits, supra at
732. See Kennedy, supra at 467.4
We are further unpersuaded by Langone's contention that
Rockland Trust waived its right to challenge the first judge's
order by initially filing an appeal from the order and then
withdrawing it. The first judge's order was interlocutory, and
not, as Langone says, a "final appealable judgment." See
Chavoor, 383 Mass. at 803. Even assuming that Rockland Trust
could have pursued an interlocutory appeal, it was not required
To the extent Langone's motion sought relief based on 4
newly discovered evidence and unethical conduct by Rockland Trust's attorney, those arguments fall under rule 60 (b) (2) (newly discovered evidence) and 60 (b) (3) (misconduct of an adverse party), respectively. Both of those rules are also subject to a one-year time limitation. See Mass. R. Civ. P. 60 (b).
14 to do so but was instead entitled to wait until entry of final
judgment and then appeal. See Littles v. Commissioner of
Correction, 444 Mass. 871, 877 (2005); Roberson v. Boston, 19
Mass. App. Ct. 595, 597 (1985). In other words Rockland Trust's
withdrawal of its interlocutory appeal "in no way prejudice[d]
[its] ability to secure review of" the first judge's order "on
appeal following final judgment." Packaging Indus. Grp., Inc.
v. Cheney, 380 Mass. 609, 613 (1980).
For these reasons we are constrained to conclude that the
first judge erred in granting relief under rule 60 (b) (6) and
vacating the original judgment. Our conclusion in this regard
makes it unnecessary for us to reach the numerous other issues
raised by the parties in their respective appeals, including
Rockland Trust's arguments that Langone's counterclaim for
breach of contract fails as a matter of law5 and Langone's
arguments that we should reverse certain aspects of the third
judge's decision on the jury-waived claims. As the first judge
was without the power to reopen the matter in the first place,
5 We note that Rockland Trust's arguments are not without force. In particular, Rockland Trust credibly argues that there was no contract between Rockland Trust and Aunyx; that, even if there was, Langone was not an intended beneficiary; and that Langone's claim is barred by the statute of limitations. These arguments appear to raise questions of law that should have been resolved by the court instead of the jury, as Rockland Trust repeatedly asserted below.
15 see Spadorcia, 17 Mass. App. Ct. at 364, the protracted
proceedings that followed are a nullity. The judgments after
the jury trial and on the jury-waived claims must therefore be
vacated, and the original judgment reinstated. Because the
parties have not briefed how prejudgment interest and attorney's
fees should be calculated in this situation, the matter is
remanded for further proceedings on those questions.6 We add,
however, that it is this court's sincere hope that the parties
can move expeditiously toward a fair and equitable resolution
and finally put this decades-long litigation to an end.
Conclusion. The January 2025 decision of the Appellate
Division dismissing the appeal is reversed. The order of the
District Court judge dated July 24, 2014, allowing the motion
for relief under rule 60 (b) (6) is reversed. The judgments
dated March 31, 2021, are vacated, and the matter is remanded to
6 Although Rockland Trust does argue that the third judge erred by denying its motion for attorney's fees relating to its claim under the 1987 note, we need not reach that issue. The third judge's rationale was that it would be reasonable for the parties to bear their own fees because Langone prevailed on his counterclaim for breach of contract. Because we are vacating the judgment on the counterclaim, the third judge's rationale is no longer applicable. We note that the guaranty provides that "[t]he Guarantor further agrees . . . to pay to the Bank forthwith upon demand, in funds immediately available to the Bank, all costs and expenses (including court costs and legal expenses) incurred or expended by the Bank in connection with this Guaranty and the enforcement hereof."
16 the District Court for reinstatement of the amended judgment
dated April 14, 2010, and for further proceedings consistent
with this decision.
So ordered.
By the Court (Shin, Walsh & Allen, JJ.7),
Clerk
Entered: March 27, 2026.
7 The panelists are listed in order of seniority.