The Massachusetts Appeals Court recently decided two issues of first impression in a case arising out of a mediated settlement gone bad. See ZVI Construction Co. v. Levy, 90 Mass. App. Ct. 412 (2016) (“ZVI”). The court determined that there was no fraud exception to a written mediation confidentiality agreement, and that one party in a joint representation cannot unilaterally waive the attorney-client privilege. An issue that received less acclaim, but which is essential to any practitioner considering an appeal, was the court’s discussion of the timeliness of a notice of appeal under Massachusetts Rule of Appellate Procedure 4.
In ZVI, the appellant filed a noticed of appeal after all claims against the primary defendants were dismissed. However, claims against other defendants remained, meaning that final judgment had not entered. Accordingly, ZVI’s notice of appeal was premature. This procedural defect came to light when the Appeals Court raised the issue at oral argument. The court allowed the parties to return to Superior Court to file a joint motion for entry of separate and final judgment under Mass. R. Civ. P. 54(b). After separate and final judgment entered, ZVI should have filed a new notice of appeal; it did not. The Appeals Court noted that ZVI failed to make good on its second chance by not filing a new notice of appeal after separate and final judgment entered. Therefore, the case was not properly before the court. Nonetheless, the Appeals Court chose to breathe life back into the procedurally deficient appeal to resolve the important and fully briefed issues.
The case serves as a good reminder about the importance of a timely notice of appeal. Under Mass. R. A. P. 4, a notice of appeal must be filed, with some narrow exceptions, within 30 days of the entry of judgment or a final appealable order on the docket. To be clear, the clock begins to run when final judgment enters on the docket, which may not necessarily be the date on the judgment itself.
A related and equally hazardous facet involving the time to file an appeal are post-judgment motions. A post-judgment motion challenging the judgment tolls the appeal period if it is filed within 10 days of the entry of judgment. It is immaterial how the motion is titled, so long as it challenges the judgment and is filed within 10 days of the entry of judgment. Post judgment motions tolling the appeal period include:
- Motions for judgment under Rule 50(b);
- Motions to amend or make additional findings of fact under Rule 52(b);
- Motions to alter or amend a judgment under Rule 59;
- Motions for relief from judgment under Rule 60; and
- Motions for a new trial under Rule 59
If an applicable post-judgment motion is filed, the time for filing an appeal, for all parties, runs from the entry of the order deciding that post-judgment motion. Motions filed after 10 days do not toll the appeal period and are treated as a motion under Rule 60(b). Similarly, motions to reconsider the denial of the post-judgment motion do not further toll the appeal period. However, an easy trap for the unwary is that post-judgment motions filed within the 10 day period wipe-out any prior notice of appeal. A party must file a new notice of appeal after the court decides the post-judgment motion.
In ZVI, the Appeals Court emphasized the Rule 4 procedure in noting that ZVI should have refiled its notice of appeal after separate and final judgment entered. Aside from the fact that this case presented important legal issues and the merits were fully briefed, the court also appeared to draw support for deciding the appeal on its merits by citing to the cognate federal rule, which accepts subsequent entry of separate and final judgment as a cure for a premature notice of appeal. Even though the Appeals Court appeared to use the federal rule to bolster its decision to hear the procedurally defective appeal, the court noted that it expressed no opinion whether the federal approach is suitable for Massachusetts or if it should be adopted.