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Your appeal of a civil judgment can be derailed by a simple mistake. A motion under Mass. R. Civ. P. 59, for a new trial or to alter or amend judgment, filed more than 10 days after the judgment, does not extend the 30-day time period for appeal.[1] Therefore, a notice of appeal from an order denying such a Rule 59 motion, filed within 30 days of that denial but more than 30 days after the underlying judgment, is not a timely appeal of the judgment itself. It only perfects an appeal from the denial of the Rule 59 motion.
Consider an example. On June 1, 2017, the Superior Court enters judgment for the defendant in a contract dispute. On June 15, 2017, the Plaintiff files Rule 59 motions for new trial and to alter or amend judgment. The Court denies both post-trial motions on July 29, 2017, and on August 14, 2017, the plaintiff files a notice of appeal from the judgment and from denial of the Rule 59 motions. On appeal, the plaintiff argues that the trial court’s judgment was based on clearly erroneous findings of facts and that the court’s interpretation of the terms of the contract was legally wrong. Even though the appeal was filed within 30 days after the Rule 59 motions were denied, it did not extend the time for appeal from the underlying judgment and that appeal is untimely.
Mass. R. App. P. 4(a) states, in relevant part,
In a civil case … the notice of appeal required by Rule 3 shall be filed with the clerk of the lower court within thirty days of the date of the entry of the judgment appealed from.
If a timely motion under the Massachusetts Rules of Civil Procedure is filed in the lower court by any party: (1) for judgment under Rule 50(b); (2) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) to alter or amend a judgment under Rule 59 or for relief from judgment under Rule 60, however titled, if either motion is served within ten days after entry of judgment; or (4) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. (Emphasis added).
A Rule 59(e) motion filed more than 10 days after the judgment is treated as a Rule 60(b) motion for relief from judgment and does not toll the running of the 30 day appeal period. Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184, 187-77 (1995). See also Pereira v. Lowes Home Centers, Inc., 84 Mass. App. Ct. 1130, 2014 WL 223013, *1 n.2 (1/22/14) (unpublished Rule 1:28 pinion).
It is well established that an appeal from a trial court’s denial of a Rule 60(b) motion for relief from judgment raises only the propriety of that denial and does not effectively appeal the underlying judgment. In Piedra, the trial court entered summary judgment for the defendant employer in the plaintiff’s wrongful termination case on November 3, 1993. 39 Mass. App. Ct. at 186. Nearly five months later, on March 31, 1994, the plaintiff filed a motion for reconsideration, which the trial court denied on April 4, 1994. Id. The plaintiff filed a notice of appeal from that denial on April 19, 1994, less than 30 days after the denial of the motion to reconsider. Id. The Appeals Court held that the appeal raised only the issue whether the judge had abused his discretion in denying reconsideration, and did not raise any issue as to the underlying judgment. According to the Appeals Court,
While the appeal from the denial of the plaintiff’s motion for reconsideration was timely as to the order denying the motion, the “appeal does not necessarily bring up the underlying judgment [for defendant] which was entered on [November 3, 1993].” To “bring up” the November 3 judgment, the plaintiff must comply with Mass.R.A.P. 4, as amended, 395 Mass. 1110 (1985).
Rule 4 provides that a party must file an appeal from a judgment within thirty days of entry of the judgment appealed from, “unless a timely motion is filed in the lower court under any of the rules referred to in the second paragraph of rule 4(a), or unless the lower court, upon a showing of excusable neglect, grants an extension of time, not exceeding thirty days, for filing a notice of appeal either before or after the expiration of the time otherwise prescribed by rule 4. Mass.R.A.P. 4(c), [as amended,] 378 Mass. 929 (1979)” (emphasis original).
Plaintiff’s motion to reconsider, while ordinarily treated as a motion under Mass.R.Civ.P. 59(e), 365 Mass. 828 (1974), does not fall within the second paragraph of rule 4(a), because it was not served within ten days of the judgment as required by rule 59(e), and thus was not “timely.” Indeed, it was served almost five months (November 3 to March 31) after the entry of judgment of which it complains, and no enlargement of time was ever requested or granted under either Mass.R.A.P. 4(c) or Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979).
It would provide no help to the plaintiff to treat her motion as one falling within Mass.R.Civ.P. 60(b), 365 Mass. 828 1974), and therefore timely filed, because rule 60(b) motions do not toll the running of the thirty-day appeal period. The rule cannot be used as a substitute for the regular appeal procedure. Muir v. Hall, supra at 41, 636 N.E.2d 312. See Smith & Zobel, Rules Practice § 60.3, at 472 (1977) (“[a]n order denying Rule 60(b) relief is appealable; but the appeal raises only the correctness of the order itself, not the purported defects in the underlying judgment”).
Id. at 186-88. (Emphasis added, citations and footnote references omitted).
Similarly, in Muir v. Hall, 37 Mass. App. Ct. 38 (1994), the trial court entered judgment for the defendant in a medical malpractice case and entered a separate judgment assessing costs on September 1, 1992. Id. at 39. The plaintiff did not file a notice of appeal within the 30 day time for appeal after that judgment. Id. Instead, on December 4, 1992, the plaintiff filed a motion to strike or modify the September 1 order for costs. Id. That motion was denied on December 8, 1992 and the plaintiff filed a notice of appeal on December 14, 1992. Id. at 39-40. The Appeals Court held that the appeal raised only the propriety of the denial of the motion to strike and could not be used to challenge the underlying judgment assessing costs, even where the error of that judgment was clearly apparent. The Appeals Court stated,
While the appeal from the denial of the motion to strike or modify was timely as to the order denying the motion, that appeal did not necessarily bring up the underlying judgment for costs which was entered on September 1, 1992. To bring up the September 1 judgment, the plaintiff must comply with the provisions of Mass.R.A.P. 4, as amended, 395 Mass. 1110 (1985). Rule 4 provides that appeals from a judgment must be filed within thirty days of the entry of the judgment appealed from unless a timely motion is filed in the lower court under any of the rules referred to in the second paragraph of rule 4(a), or unless the lower court, upon a showing of excusable neglect, grants an extension of time, not exceeding thirty days, for filing a notice of appeal either before or after the expiration of the time otherwise prescribed by rule 4. Mass.R.A.P. 4(c), 378 Mass. 929 (1979). As no extension of time for filing a notice of appeal from the September 1 judgment was allowed, the question is whether the plaintiff’s motion to strike or modify the judgment falls within the second paragraph of rule 4.
A motion to “strike” a judgment is not contemplated in our rules of procedure, but Mass.R.Civ.P. 59(e), 365 Mass. 828 (1974), provides that a motion to alter or amend a judgment may be made, and Mass.R.Civ.P. 60, 365 Mass. 828–829 (1974), permits a motion for relief from a judgment. The critical difference between the two rules is that a timely motion under rule 59(e) tolls the running of the thirty-day appeal period, see subsection (3) of the second paragraph of rule 4(a), while a motion under rule 60 does not. ….
The difficulty in this case is that the plaintiff’s motion to alter the judgment of September 1 was not timely, for it was not served within ten days after the entry of the judgment as required by rule 59(e). Indeed, it was served almost four months after the judgment of which it complains, and no enlargement of time was ever granted either under Mass.R.A.P. 4(c) or Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979).
It would provide no help to the plaintiff to say that his motion should be treated as one falling within rule 60(b), and therefore timely filed, because, as noted earlier, rule 60(b) motions do not toll the running of the thirty-day appeal period, nor can the rule be used as a substitute for the regular appeal procedure. See … Smith & Zobel, Rules Practice § 60.3, at 472 (1977) (“An order denying Rule 60(b) relief is appealable; but the appeal raises only the correctness of the order itself, not the purported defects in the underlying judgment”).
We conclude that the appeal must be dismissed, even though the error of the September 1 judgment is plain on its face.
Id. at 40-42. (Emphasis added, footnote references and citations omitted). See also Pereira, 2014 WL 223013, at *1 and n.2 (“To the extent that the notice of appeal may be viewed as purporting to appeal partly or solely from the underlying judgment, it is untimely. The motion to vacate did not extend the original appeal period of thirty days. … As such, an appeal from the judgment is not properly before this court.”); Crosby v. O’Shea, 83 Mass. App. Ct. 1114, 2013 WL 656320, *1 (2/25/13) (unpublished Rule 1:28 pinion).
In our example, the plaintiff filed Rule 59 motions more than 10 days after the June 1 judgment. Therefore, those post-trial motions were treated as Rule 60(b) motions to vacate judgment and did not extend the 30 day time for appeal of the June 1 judgment, which expired July 1, 2017. Accordingly, the plaintiff’s notice of appeal, filed on August 14, 2017, was not timely to appeal the June 1 Judgment.
Although the notice of appeal was filed within 30 days after the trial court’s July 29, 2017, denials of the post-trial motions, and timely appealed those denials, the issues on appeal are severely limited. Because the late filed Rule 59 motions are treated as Rule 60(b) motions to vacate, the only issues on appeal are whether the plaintiff has satisfied the grounds for vacating a judgment listed in Rule 60(b) (excusable neglect, newly discovered evidence, fraud, etc.).[2] The plaintiff is precluded from arguing more generally on appeal that the judgment was legally or factually wrong.
As the foregoing example illustrates, when calculating the time period within which a notice of appeal must be filed, you should take care to determine whether any of the post-trial motions listed in Rule 4(a) were filed within 10 days of the judgment. If they were filed more than 10 days after judgment, then you must file a notice of appeal from the judgment itself within 30 days of the judgment, regardless of when the trial court rules on the post-trial motions. Failure to keep this rule in mind may result in loss of your appellate rights.
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[1] Time periods other than 30 days apply to certain appeals (e.g. appeals in cases to which the Commonwealth is a party).
[2] Rule 60(b) lists the following grounds for vacating a judgment: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) , (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.”
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