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Updated September 15, 2020.
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, or for relief from judgment under Rule 60, filed more than 10 days after the judgment, does not extend the 30-day time period for appeal of the judgment.[1] Therefore, a notice of appeal from an order denying such a Rule 59 or Rule 60 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 or Rule 60 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 both 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 was not filed within 30 days of the underlying judgment and is untimely.
Mass. R. App. P. 4 states, in relevant part,
(a) Appeals in civil cases
(1) In a civil case, unless otherwise provided by statute, the notice of appeal required by Rule 3 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….
(2) If a motion is made or served in a timely manner under the Massachusetts Rules of Civil Procedure and filed with the lower court by any party, the time to file an appeal runs for all parties from the entry of the order disposing of the last remaining motion:
(A) for judgment under Rule 50(b);
(B) 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;
(C) to alter or amend a judgment under Rule 59 or for relief from judgment under Rule 60(b), however titled, but only if either motion is served within 10 days after entry of judgment; or
(D) under Rule 59 for a new trial. (Emphasis added).
Motions under Rules 50(b), 52(b) and 59 must be made within 10 days after the entry of judgment. Accordingly, a motion under any of the rules referred to in Rule 4(a)(2)(A-D) must be filed within 10 days after the judgment if it is to extend the time for appeal of the underlying judgment.
In our example, the plaintiff filed Rule 59 motions more than 10 days after the June 1 judgment. Therefore, those post-trial motions did not extend the 30 day time for appeal of the June 1 judgment, which expired July 1, 2017. Therefore, 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. The Massachusetts courts treat Rule 59 motions filed more than 10 days after judgment as Rule 60(b) motion to vacate and 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] 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 opinion). See also Muir v. Hall, 37 Mass. App. Ct. 38 (1994). The plaintiff is precluded from arguing more generally on appeal that the judgment was legally or factually wrong.
For example, in Piedra, the trial court entered summary judgment for the defendant employer in the plaintiff’s wrongful termination case on November 3, 1993. Piedra, 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].” Id. at 186. (Internal quotation marks omitted). The Court cited a treatise for the proposition that, “[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 188, quoting Smith & Zobel, Rules Practice § 60.3, at 472 (1977).
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 underlying judgment within 30 days of that 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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