Preserving appellate rights when moving for reconsideration

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Filing post-trial motions complicates the appellate process. Certain motions toll the 30-day deadline to notice an appeal, which seems good since who doesn't want more time? But the extension comes with a cost. Those same motions void any notice of appeal filed before the motions are decided. That means that we forfeit the right to appeal unless we file a new notice.

For diligent counsel, that procedural wrinkle poses little danger because Mass. R. A. P. 4(a) spells out the motions that toll the appeal period.

But a problem arises with motions for reconsideration. Two lines of Appeals Court cases disagree on whether motions for reconsideration fall within Rule 4(a) and toll the appeal period. The conflicting cases do not cite each other, and Shepardizing one does not reveal the other.

Even recent dicta from the Supreme Judicial Court references only one of these conflicting lines of cases. Relying on the wrong line can be fatal, because if you follow one approach and the Appeals Court adopts the other, you have forfeited your appeal.

Tolling the appeal period

In most civil cases, lawyers have 30 days after entry of final judgment to file a notice of appeal. (The period is only 10 days in the District Court.)

But we can toll that appeal period by serving, within 10 days after entry of judgment, one of the post-trial motions listed in Mass. R. A. P. 4(a): motions for JNOV; motions to amend or make additional findings; motions for new trial under Rule 59(e); or motions "under Rule 59 to alter or amend a judgment."

Rule 4(a) provides that a notice of appeal filed before the disposition of such motions has no effect, and a new notice of appeal must be filed within 30 days after entry of the order disposing of the post-trial motion.

Rule 4(a) does not mention motions for reconsideration. The Reporters' Notes to Mass. R. Civ. P. 59(e) tell us that the rule includes not just motions to "alter or amend," but also motions for "rehearing, reconsideration or vacation."

One could read Mass. R. A. P. 4(a) to include any type of motion that falls within Rule 59(e), including motions for reconsideration. Or one could read Rule 4(a) narrowly and limit the tolling effect to motions to "alter or amend" a judgment. These rules do not tell us for certain whether a timely motion for reconsideration is a tolling motion under Rule 4(a).

Conflicting decisions

The SJC came close to answering the question in Pentucket Manor Chronic Hospital, Inc. v. Rate Setting Commission, 394 Mass. 233 (1985).

The issue was whether a motion to vacate a judgment constituted a Rule 59(e) motion that tolled the appeal period. The SJC declined to rely on the Rule 59(e) Reporters' Notes and held that "the better approach … is that substance, not labels, should control in determining whether a postjudgment motion is a rule 59(e) motion or a rule 60 motion." Id. at 235-36.

The SJC observed that Rule 60 did not permit challenges based on errors readily correctible on appeal, and that Rule 59 in contrast was designed to correct judgments based on errors of fact or law. Id. at 236-37.

The court endorsed the approach of numerous federal courts that treated all timely motions questioning the correctness of a judgment as Rule 59(e) motions. Because the motion to vacate was timely and challenged errors of law, the SJC treated it as a Rule 59(e) motion tolling the appeal period. Id.

One would have expected subsequent Appeals Court cases to apply Pentucket Manor to motions for reconsideration, since they differ little from motions to vacate. And a few cases did.

In Muir v. Hall, 37 Mass. App. Ct. 38, 41 (1994), the court applied Pentucket Manor and held that an untimely motion to "strike" a judgment was not a tolling motion.

The Appeals Court then followed Pentucket Manor and Muir and held that an untimely motion for reconsideration did not toll the appeal period. Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184, 187 & n.3 (1995); see also Barber v. Board of Appeal, 2008 Mass. App. Unpub. LEXIS 831 *2-3 (Oct. 16, 2008) (same).

Other Appeals Court cases, however, decided the issue without reference to Pentucket Manor. One line of cases held that any timely motion for reconsideration constituted a tolling motion under Rule 59(e). See Slade v. Ormsby, 69 Mass. App. Ct. 542, 545 (2007) (relying on Mass. R. Civ. P. 59(e) Reporters' Notes); Bellanti v. Boston Public Health Comm'n, 70 Mass. App. Ct. 401, 406 (2007) (relying on Slade); Bardige v. Performance Specialists, Inc., 74 Mass. App. Ct. 99, 101 n.4 (2009) (relying on text of Mass. R. A. P. 4(a)).

But a contrary line of cases held that a motion for reconsideration could never constitute a Rule 59(e) motion.

In Curly Customs v. Pioneer Financial, 62 Mass. App. Ct. 92, 96-97 (2004), the Appeals Court noted that the text of Mass. R. A. P. 4(a) "does not refer to motions for reconsideration" and held that "a motion for reconsideration is not the equivalent of a rule 59 motion (or any of the other motions enumerated in Mass.R.A.P. 4[a])."

Curly Customs relied on Selby Associates v. Boston Redevelopment Auth., 27 Mass. App. Ct. 1188, 1189-90 (1989), in which the Appeals Court held that a motion to reconsider denial of a motion for a new trial was not a tolling motion under Mass. R. A. P. 4(a).

One might distinguish Curly Customs and Selby Associates on their facts, because the motions in those cases did not seek reconsideration of a final judgment. Instead, they sought to reconsider denial of a Rule 60(b) motion (Curly Customs), and a motion for new trial (Selby Associates).

However, that distinction played no part in the Curly Customs rationale. And the Appeals Court later relied on Curly Customs to hold that a motion for reconsideration of a final judgment did not toll the appeal period. Aroesty v. Cohen, 62 Mass. App. Ct. 215, 218-19 (2004).

Further confusing the issue, a 2007 Appeals Court case cited these two conflicting lines of cases without noting the contradiction. Stephens v. Global NAPs, Inc., 70 Mass. App. Ct. 676, 681-82 (2007).

And dicta in a recent SJC case referenced only the Curly Customs line of cases and made no mention of Pentucket Manor or the contrary Appeals Court cases. Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 2010 Mass. LEXIS 588 *7-8 (Aug. 9, 2010).

All of these cases leave us without reliable guidance on whether a timely motion for reconsideration will toll the appeal period.

Resolving the conflict

Courts should explicitly adopt the Pentucket Manor approach when dealing with motions for reconsideration. Under Pentucket Manor, the court would ask: (1) was the motion served within 10 days after entry of final judgment, and (2) does the motion challenge the correctness of the judgment or order? If the answer to both questions is "yes," then the motion falls within Rule 59(e) and therefore tolls the appeal period pursuant to Mass. R. A. P. 4(a).

The Pentucket Manor approach furthers the purpose of Mass. R. A. P. 4(a) because tolling the appeal period prevents appeals from judgments that may change after post-trial motions. Finn v. McNeil, 23 Mass. App. Ct. 367, 369 (1987).

Pentucket Manor is largely consistent with the Rule 59(e) Reporters' Notes. The only difference is that the Reporters' Notes treat all timely motions for reconsideration as Rule 59(e) motions, whereas Pentucket Manor excludes post-motions that do no
t challenge the correctness of the judgment at issue. But nearly all motions to reconsider final judgments will challenge the correctness of those judgments.

Finally, Pentucket Manor is still good law and ought to be followed until the SJC indicates otherwise.

Belt and suspenders

Until this conflict is resolved, we should plan for the Appeals Court to adopt either approach.

If we file a timely motion for reconsideration, we should still file a notice of appeal within 30 days after entry of final judgment. That way, if the court follows Curly Customs, there will be a timely notice of appeal on file.

However, we should also file a notice of appeal within 30 days of entry of an order denying reconsideration. That way, if the court follows Pentucket Manor and the first notice is nullified, there will still be a timely notice of appeal on file. Although one "extra" notice of appeal is filed under that approach, the extra filing is far better than the risk of forfeiting our clients' appellate rights.

Sharon attorney Shaun B. Spencer specializes in civil appellate practice and business and employment litigation. He is an adjunct professor at Boston College Law School and can be contacted at spencer@spencerlegal.com.