Massachusetts Rule of Appellate Procedure

In Cardno ChemRisk, LLC v. Foytlin, 476 Mass. 479 (2017), the Supreme Judicial Court held that the anti-SLAPP statute protected two bloggers’ critical opinions contained in a blog post directed at a scientific consulting firm working for British Petroleum (“BP”) in the wake of the Deep Water Horizon spill.

The defendant bloggers, two environmental

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.


Continue Reading Not Quite a Final Judgment: Steering Clear of the Perils in Filing a Notice of Appeal