MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This is an appeal from an order of a Superior Court judge striking the defendants notice of appeal as premature under Mass. R. A. P. 4 (a) (3), as appearing in 481 Mass. 1606 (2019). The plaintiff filed the underlying action in April 2017, seeking to enforce a promissory note executed by the defendant. After the defendant conceded liability and a trial was held on damages only, judgment for the plaintiff entered on June 2, 2021.
Within ten days of the judgment, the defendant served a motion for a new trial. On July 1, 2021, while the motion was still pending, the defendant filed a notice of appeal from the judgment. The trial judge denied the motion for a new trial on August 10, 2021, and the defendant did not thereafter file a new notice of appeal.
In October 2021, the plaintiff moved to dismiss the defendants appeal “for failing to comply with [Mass. R. A. P.] 9(d) and 10(a).” On November 8, 2021, a second judge allowed the plaintiffs motion but on the ground (apparently raised sua sponte) that the defendants motion for a new trial rendered his notice of appeal premature and of no effect. On November 9, 2021, the defendant filed a timely appeal from the second judges order.
Rule 4 (a) (3) provides that “[a] notice of appeal filed before the disposition of any timely motion listed in Rule 4 (a) (2)” -- including a timely motion for a new trial -- “shall have no effect” and “[a] new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the last such remaining motion.” The defendants July 1, 2021, notice of appeal was premature and of no effect under the plain language of this rule. In Roch v. Mollica, 481 Mass. 164, 165 n.2 (2019), however, the Supreme Judicial Court excused the appellants noncompliance with the rule and reached the merits of her appeal, explaining that “the concerns underlying rule 4 (a) are not implicated” where “no action on the appeal had yet been taken before the motion for reconsideration was decided.” A few years later, in Tocci Building Corp. v. Iriv Partners, LLC, 101 Mass. App. Ct. 133, 136 n.5 (2022), we interpreted Roch to have “held that [premature] notices of appeal ․ will bring the merits of an appeal before the appellate court where ․ ‘no action on the appeal had yet been taken before the motion for reconsideration was decided.’ ”
Here, when the trial judge denied the defendants motion for a new trial, no action had been taken on the defendants July 1, 2021, appeal. In these circumstances, while we are sympathetic to the plaintiffs wanting to see an end to this protracted litigation, we are constrained by Roch and Tocci Building Corp. to reinstate the appeal.
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We do not preclude the plaintiff on remand from asserting other grounds for dismissing the appeal, including the grounds raised in his original motion.
The order striking the defendants notice of appeal is reversed, and the case is remanded for further proceedings consistent with this decision.
So ordered.
reversed and remanded
FOOTNOTES
2
. We note that the second judge did not have the benefit of Tocci Building Corp., supra, when he issued his decision.