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17-P-275 Appeals Court

FRANCHI MANAGEMENT COMPANY, INC., & others1 vs. PAUL F. 

FLAHERTY, JR., trustee,2 & another;3 PASQUALE FRANCHI, trustee,4

& others,5 third-party defendants.

No. 17-P-275.

Middlesex. January 11, 2018. - June 21, 2018.

Present: Rubin, Sacks, & Wendlandt, JJ.

Negotiable Instruments, Note. Practice, Civil, Action to reach 

and apply, Notice of appeal, Interest. Notice, 

Timeliness. Interest.

 1 Michael P. Franchi, Louis Franchi, Linda A. Kacewicz, KCN 

Realty Trust, and Sea Breeze Realty Trust.

2 Of the Patricia Franchi Flaherty 1999 Revocable Trust. 

Flaherty was also sued in his individual capacity.

3 John S. Kacewicz. Kacewicz was sued in his then capacity 

as trustee of the Patricia Franchi Flaherty 1999 Revocable 

Trust. We are informed by the parties that he is no longer a 

trustee, and that a successor trustee has not been named.

4 Of Haverhill Realty Development Trust and of Westcliff 

Road Nominee Trust.

5 Meadow Green-Wildcat Ski Lift Corp., Meadow Green-Wildcat 

Corp., LMF Franklin Corp., Natick Crossing Corp., and 

Commonwealth Babcock Associates, LLP.
2

Civil action commenced in the Superior Court Department on 

August 13, 2009.

The case was heard by Kathe M. Tuttman, J., on motions for 

summary judgment; entry of separate and final judgment was 

ordered by Bruce R. Henry, J.; and a motion for amendment of the 

amended judgment was heard by Maynard M. Kirpalani, J.

Christopher J. Marino (Kenneth J. Mickiewicz also present)

for Paul F. Flaherty, Jr.

John J. Gushue for Franchi Management Company, Inc., & 

others.

WENDLANDT, J. In this case, we address the timeliness of a 

notice of appeal from a final judgment that was corrected twice: 

first, sua sponte to fix a clerical error in the calculation of 

prejudgment interest, and second, on a motion pursuant to 

Mass.R.Civ.P. 60(a), 365 Mass. 828 (1974), to correct an 

additional error in that same calculation. Because neither the 

sua sponte correction of a clerical error nor the filing (as 

here) of a rule 60(a) motion beyond ten days from entry of the 

original judgment has the effect of restarting the time for 

appeal from that judgment under Mass.R.A.P. 4(a), as amended, 

464 Mass. 1601 (2013), we dismiss defendant Paul F. Flaherty, 

Jr.'s appeal from the original judgment as untimely.6

Background. We briefly set forth the undisputed facts as 

agreed by the parties in their cross motions for summary 

judgment, leaving some procedural details for our discussion 

 6 Only Paul F. Flaherty, Jr., in his capacity as trustee, 

filed an appeal.
3

below. This dispute stems from the failure of the defendants, 

as trustees of the Patricia Franchi Flaherty 1999 Revocable 

Trust (trust), to pay plaintiff Michael Franchi (Michael) on a 

promissory note (note) pursuant to which Michael loaned $750,000 

to his sister Patricia Franchi Flaherty (Patricia).7 Under the 

terms of the note, Michael and Patricia agreed that Michael's 

sole recourse for payment would be from Patricia's ownership and 

beneficial interests in certain assets, which she had previously 

transferred to the trust. Patricia died before the initial 

payment became due, and the trust did not make payments to 

Michael. The present action, which Michael and the other 

plaintiffs commenced in Superior Court,8 followed.

After a period of discovery, Michael moved for partial 

summary judgment on count 2 of the second amended complaint, 

asserting that the court should reach and apply trust assets to 

satisfy a $750,000 debt owed to him by Patricia.9 In their 

 7 Because these parties share a surname, we will refer to 

each by first name.

8 Counts 1 through 4 of the plaintiffs' second amended 

complaint sought to reach and apply assets of the defendants to 

satisfy debts owed to the plaintiffs; count 2 concerned only the 

debt owed to Michael. The complaint also included a claim 

requesting the imposition of a constructive trust (count 5); 

claims alleging fraudulent conveyance (count 6) and breach of 

fiduciary duty (count 7); and a demand for an accounting (count 

8).

9 The plaintiffs filed a separate motion for summary 

judgment on counts 1, 3, 4, 5, and 7 of the second amended 
4

opposition, the defendants conceded liability under the note; 

they disputed only the amount due to Michael and whether Michael 

had complied with the notice provisions.10 The motion judge

allowed Michael's motion and ordered the trust to pay the 

principal balance of the note together with interest,11 remarking

that the defendants did not appear to dispute that Michael's 

claim was a direct contractual claim against the trust (as 

opposed to a claim against Patricia's estate). Pursuant to 

 

complaint, and the defendants filed a cross motion for summary 

judgment on all of the counts. The motion judge allowed the 

defendants' cross motion for summary judgment as to counts 5

through 8. The judge denied both the plaintiffs' and 

defendants' motions for summary judgment on counts 1, 3, and 4, 

concluding that Patricia's estate was a necessary party as to 

those counts. The judge ordered Patricia's estate to be joined 

and that said joinder "shall relate back to the date of filing 

of the original complaint." The plaintiffs then successfully 

moved to amend the complaint to include Patricia's estate as a 

defendant. Parallel litigation between the parties ensued in 

the Probate and Family Court, where a judge ruled that the 

plaintiffs' claims against the estate were time barred. The 

plaintiffs have appealed that decision to this court, and the 

appeal has been stayed pending resolution of the Superior Court 

litigation on the other counts of the complaint. A third 

litigation was then commenced by some of the plaintiffs, who 

filed a complaint in the Supreme Judicial Court pursuant to 

G. L. c. 190B, § 3-803(e), seeking equitable relief to allow

them to pursue their claim against Patricia's estate. A single 

justice of the Supreme Judicial Court transferred the action to 

the Superior Court for consideration together with the remaining 

claims of the present action.

10 Despite this concession, in their cross motion for 

summary judgment, the defendants argued that Patricia's estate 

was a necessary party for all the "reach and apply" counts of 

the complaint, including Michael's claim on the note.

11 Subsequently, the motion judge allowed, in part, 

Michael's motion for attorney's fees and costs.
5

Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), Michael moved for 

entry of final judgment on his claim. The unopposed motion was 

allowed. The clerk of the Superior Court entered a final 

judgment on Michael's claim on December 22, 2014 (original 

judgment). Defendant Paul F. Flaherty, Jr., now appeals.

Discussion. Rule 4(a) of the Massachusetts Rules of 

Appellate Procedure requires an appellant in a civil case to 

file a notice of appeal "within thirty days of the date of the 

entry of the judgment appealed from." Mass.R.A.P. 4(a), first 

par. Here, the defendant purports to appeal from the original 

judgment, which entered as a final judgment on December 22, 

2014.12 Specifically, on January 11, 2017 -- more than 750 days 

after the original judgment entered, and nearly two years after 

the thirty-day deadline for appeal from the original judgment 

had lapsed on January 21, 2015 -- the defendant filed a notice 

of appeal from the original judgment. Accordingly, unless an 

exception applies, the defendant's appeal is not timely.

Rule 4(a) provides that certain postjudgment motions will 

alter the time period for the filing of a notice of appeal, such 

that the thirty-day period will not commence until the entry of 

the order disposing of the postjudgment motion. Relevant to the 

 12 As set forth supra, while the original judgment did not 

dispose of all of the claims, it was a "final judgment" entered 

pursuant to Mass.R.Civ.P. 54(b), which the defendants did not 

oppose.
6

present case, rule 4(a) was amended in 2013 to provide as 

follows:

"If a timely motion under the Massachusetts Rules of Civil 

Procedure is filed in the lower court by any party . . . 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 . . . the 

time for appeal for all parties shall run from the entry of 

the order . . . granting or denying any . . . such motion"

(emphasis added).

Mass.R.A.P. 4(a), second par. A notice of appeal filed before 

the disposition of these postjudgment motions "shall have no 

effect"; "[a] new notice of appeal must be filed within the 

prescribed time measured from the entry of the order disposing 

of the [postjudgment] motion." Ibid.

1. Sua sponte correction of clerical error. The defendant

first maintains that the time for appeal was restarted when, on 

December 30, 2014, the court sua sponte corrected an arithmetic 

error in the original judgment regarding the amount of interest

owed to Michael. The trial court has the power to correct

clerical mistakes (such as arithmetic errors13) pursuant to 

Mass.R.Civ.P. 60(a), which provides:

 13 Here, the correction of the interest calculation was a 

clerical error that did not affect the substantive rights 

determined in the original judgment. See Artco, Inc. v. 

DiFruscia, 5 Mass. App. Ct. 513, 515, 517 (1977) (rule 60[a] 

motion to correct clerical error in computation of interest did 

not affect finality of earlier judgment or extend time to bring 

motion under rule 60[b][2] or [3]). See also Bernier v. Boston 

Edison Co. 380 Mass. 372, 388 n.17 (1980) (rule 60[a] motion is 

proper vehicle for correcting error in computation of interest).
7

"Clerical mistakes in judgments, orders or other parts of 

the record and errors therein arising from oversight or 

omission may be corrected by the court at any time of its 

own initiative or on the motion of any party and after such 

notice, if any, as the court orders. During the pendency 

of an appeal, such mistakes may be so corrected before the 

appeal is docketed in the appellate court, and thereafter 

while the appeal is pending may be so corrected with leave 

of the appellate court."

The trial court's exercise of this power does not restart 

the appellate clock. Rule 4(a) of the Rules of Appellate 

Procedure, second par., provides only that certain 

postjudgment motions restart the time to appeal; nothing in rule

4(a) suggests that the time for appeal is restarted based on the 

sua sponte action by the trial court. To the contrary, it is 

well settled that where (as here) the trial court uses its 

inherent power to correct a clerical mistake such that the 

amended judgment does not alter the substantive rights affected

by the original judgment, the time for appeal generally runs 

from the original judgment.14 See Jones v. Boykan, 74 Mass. App. 

Ct. 213, 217 n.7 (2009) ("[T]he correction of a clerical error 

does not extend the time for taking an appeal from a final 

judgment"); Farkas v. Rumore, 101 F.3d 20, 22 (2d Cir. 1996) 

(per curiam), citing Federal Trade Commn. v. MinneapolisHoneywell Regulator Co., 344 U.S. 206 (1952) ("Where a judgment 

 14 Of course, a party would have thirty days from the entry 

of such an amended judgment to appeal from the revisions 

reflected in that judgment. See 11 Wright, Miller, & Kane, 

Federal Practice & Procedure § 2871 (3d ed. 2012).
8

is reentered [based on a sua sponte correction of an 

administrative mistake by the trial court], and the subsequent 

judgment does not alter the substantive rights affected by the 

first judgment, the time for appeal runs from the first 

judgment").15 Accordingly, the sua sponte amendment of the 

original judgment did not alter the time to file the notice of 

appeal from the original judgment.

2. Rule 60(a) motion to correct a clerical error. The 

defendant next argues that the time for appeal was restarted 

when Michael served on the defendants a motion pursuant to 

Mass.R.Civ.P. 60(a) to correct an additional clerical error in 

the amended judgment. Specifically, on January 5, 2015 -- less 

than ten days after entry of the amended judgment, but more than 

ten days after entry of the original judgment -- Michael served 

a rule 60(a) motion to correct another clerical error in the 

calculation of prejudgment interest in the amended judgment.16 

 15 "As a general principle, we apply to our rules of civil 

procedure the construction given to the cognate Federal rules." 

Pentucket Manor Chronic Hosp., Inc. v. Rate Setting Commn., 394 

Mass. 233, 236 (1985), quoting from Chavoor v. Lewis, 383 Mass. 

801, 806 n.5 (1981).

16 The motion judge did not reach the merits of this 

January, 2015, rule 60(a) motion because the action was stayed 

in August, 2015, pending resolution of the Probate and Family 

Court matter. See note 9, supra. In September, 2016, Michael 

served and filed a renewed rule 60(a) motion to correct the 

clerical error. That renewed motion was served more than ten 

days after the amended judgment entered. For the present 

analysis, we assume arguendo that the renewed rule 60(a) motion 
9

The defendant maintains that this motion, pursuant to rule

60(a), is one of the enumerated postjudgment motions that 

restart the time to file the notice of appeal. In particular, 

the defendant contends that it was a motion "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" (emphasis added). Mass.R.A.P. 4(a), 

second par. The defendant's argument overlooks that the rule

60(a) motion was not "served within ten days after entry" of the 

original judgment from which the defendant purports to appeal. 

For this reason alone, the argument fails.

Nevertheless, the defendant maintains that the time for 

appeal was extended because Michael's rule 60(a) motion was 

served within ten days of the entry of the amended judgment.

The flaw in the defendant's contention is that the defendant

does not appeal from the clerical correction reflected in the 

amended judgment. Instead, he purports to challenge the merits 

of the allowance of Michael's motion for summary judgment in 

the original judgment; the defendant's notice of appeal from 

 

should be viewed as relating back to January 5, 2015, the 

service date of Michael's original rule 60(a) motion. The 

renewed motion was allowed, and a second amended judgment 

entered on December 28, 2016. Because the defendant filed his

notice of appeal on January 11, 2017, the notice was timely as 

to the further revisions in the second amended judgment. We 

note, however, that the defendant has not challenged any aspect 

of the further revisions, which we shall therefore affirm.
10

that judgment was not filed until more than 750 days after the

judgment entered. Michael's rule 60(a) motion (which was not 

served within ten days of the entry of the original judgment)

does not "produce a Lazarus-like effect; it cannot resurrect 

[the defendant's] expired right to contest the merits of the 

underlying [original] judgment, nor bring the judgment itself 

before us for review." Rodriguez-Antuna v. Chase Manhattan Bank 

Corp., 871 F.2d 1, 2 (1st Cir. 1989). See 11 Wright, Miller, & 

Kane, Federal Practice & Procedure § 2871, at 586 (3d ed. 2012)

(timely appeal from correction of clerical error, after time for 

appeal of underlying judgment has run, "would be limited to 

[the] disposition of the Rule 60[a] motion and would not bring 

up for review the underlying judgment").

Because the trial court's sua sponte correction in the 

amended judgment does not alter the finality of the original 

judgment or restart the time for appeal, and because Michael's

rule 60(a) motion was not served within ten days of the original 

judgment,17 the defendant's appeal from the original judgment is 

untimely.18

 17 Because we conclude that Michael's motion pursuant to 

Mass.R.Civ.P. 60(a) did not meet the ten-day time restriction of 

Mass.R.A.P. 4(a), we need not decide whether a rule 60(a) motion

to correct a clerical error is, when served within ten days of 

the entry of judgment, one of the motions encompassed by rule

4(a)(3). Compare Catz v. Chalker, 566 F.3d 839, 841-842 (9th 

Cir. 2009), with Reporter's Notes to Rule 4 (2013), 

Massachusetts Rules of Court, Rules of Appellate Procedure, at 
11

Conclusion. The appeal from the December 22, 2014, 

judgment, and from so much of the amended judgment entered 

December 28, 2016, as awarded damages in the sum of $750,000 is 

dismissed with prejudice. In all other respects, the amended 

judgment is affirmed.

So ordered.

 

231 (Thomson Reuters 2018) (discussing purpose of 2013 amendment 

to eliminate disparate effect on time for appeal caused by 

differential treatment between motions pursuant to Mass.R.Civ.P. 

59 and Mass.R.Civ.P. 60[b]).

18 The defendant, seeking to preserve some avenue for 

appealing from the original judgment, alternatively contends

that the present appeal is premature and should be dismissed 

without prejudice. This is so, he argues, because, in allowing 

the renewed rule 60(a) motion (see note 16, supra) and issuing a 

second amended judgment, entered on December 28, 2016, a second

motion judge corrected the arithmetic error in the calculation 

of prejudgment interest in the first amended judgment only 

through December 30, 2014, the date the first amended judgment

entered, and did not enter a new separate and final judgment 

pursuant to Mass.R.Civ.P. 54(b). We disagree. The second 

motion judge's interest calculation conforms to rule 54(f)'s 

directive to compute the "[i]nterest accrued up to the date of 

entry of a judgment." Mass.R.Civ.P. 54(f), 382 Mass. 822 

(1980). The amount of additional interest owed to Michael after

the date of the entry of the first amended judgment is "interest 

from the date of entry of a judgment to the date of execution or 

order directing the payment of said judgment," ibid., which

cannot be calculated "at this time," as the second motion judge 

noted, because it will depend on when the defendants pay Michael 

on the outstanding judgment.