YOUGHAL LLC v. ENTWISTLE (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a bench trial, a judge of the Housing Court entered findings of fact, rulings of law, and an order for judgment on November 2, 2017.³ The order for judgment provided that the defendants had ten days to pay $ 6,225 ⁴ to the plaintiff and to file a receipt with the court. If the defendants complied, judgment for possession would enter for the defendants. If the defendants did not comply, judgment for possession and for unpaid rent would enter for the plaintiff. On November 13, 2017, the defendants filed a motion for new trial or to alter or amend judgment. On November 15, 2017, judgment entered for the plaintiff as the defendants had failed to comply with the order of November 2, 2017. On November 21, 2017 the defendants' motion for new trial or to alter or amend judgment was denied. On December 1, 2017 the defendants filed a notice of appeal. On December 4, 2017 the plaintiff filed a motion in the Housing Court to dismiss the appeal as untimely, which was denied on December 20, 2017. The plaintiff filed a notice of appeal on December 28, 2017, from that denial. The case is before us on these cross appeals.

The initial question presented is whether the defendants' notice of appeal was timely. Issues of jurisdiction, such as this one, cannot be waived and can be raised at any time. See Federal Nat'l Mtge. Ass'n v. Gordon, 91 Mass. App. Ct. 527, 533 n.12 (2017), citing Commonwealth v. DeJesus, 440 Mass. 147, 151 (2003).

Pursuant to G. L. c. 239, § 5 (a), “[i]f either party appeals from a judgment of ․ a housing court ․ in an action under this chapter ․ that party shall file a notice of appeal with the court within [ten] days after the entry of the judgment.” Here, the defendants filed their notice of appeal more than ten days after judgment entered. They argue that filing their motion for new trial or to alter or amend the judgment tolled the appeal period pursuant to Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013). We agree with the defendants that rule 4 (a) provides that the ten-day appeal period for all parties who file timely motions under Mass. R. Civ. P. 59, as amended, 365 Mass. 827 (1974), and Mass. R. Civ. P. 60, as amended, 365 Mass. 828 (1974), “shall run from the entry of the order denying a new trial or granting or denying any other such motion.” However, to be timely such motions must be filed within ten days after the entry of judgment. See Manzaro v. McCann, 401 Mass. 880, 881-882 (1988); ⁵ Empire Loan of Stoughton, Inc. v. Stanley Convergent Sec. Solutions, Inc., 94 Mass. App. Ct. 709, 712 (2019). To benefit from the tolling period under rule 4 (a), the defendants would have had to refile their motion within ten days after judgment entered. They failed to do so and accordingly their appeal is untimely. The order denying the plaintiff's motion to dismiss the appeal is reversed. The appeal of the defendants is dismissed.

So ordered.

reversed in part; dismissed in part

FOOTNOTES

3.   The plaintiff landlord had filed a summary process complaint. The defendant tenants filed an answer and asserted counterclaims for breach of warranty, breach of quiet enjoyment, retaliation, and unfair or deceptive business practices.

4.   This amount reflects unpaid rent of $ 6,250 minus $25 awarded to the defendants on their counterclaim for unfair and deceptive business practices.

5.   The 2013 amendment to Mass. R. A. P. 4 permitted a motion timely made under Mass. R. Civ. P. 60 to toll the appeal period, as was already the case for motions made under Mass. R. Civ. P. 59. This change does not otherwise affect the court's holding in Manzaro.