422 Mass. 625 | Mass. | 1996
We transferred this case to this court on our own motion to decide whether the defendant, Melvin E. Averett, was entitled to a hearing on his posttrial motions for judgment notwithstanding the verdict, Mass. R. Civ. P. 50 (b), 365 Mass. 814 (1974), and for a new trial, Mass. R. Civ. P. 59, 365 Mass. 827 (1974). The defendant requested a hearing, and the trial judge denied the motions without a hearing. In deciding the issue, we are called on to examine Rule 9A of the Rules of the Superior Court (1996), which provides for
The background of the case is as follows. Following a jury trial in the Superior Court, judgment was entered against the defendant in the amount of $43,293.92, on the contract claim brought by the plaintiff, F.W. Webb Company. The defendant’s counsel timely sent to the clerk’s office for filing motions for judgment notwithstanding the verdict and for a new trial pursuant to Mass. R. Civ. P. 50 (b) and 59, respectively. The clerk returned the motions to the defendant’s counsel because the defendant’s counsel had not complied with the service and filing requirements of rule 9A.
After the motions were accepted, the defendant filed an application pursuant to rule 26 for a hearing on the motions. The plaintiff, in accordance with rule 9A, filed a memorandum in opposition to the motions. The motions were thereafter denied by the trial judge without a hearing, and the defendant appealed.
1. There is no express requirement in either Mass. R. Civ. P. 50 (b), or Mass. R. Civ. P. 59, that the judge grant a request for hearing in connection with posttrial motions for judgment notwithstanding the verdict or for a new trial in the
Rule 9A was adopted on July 21, 1988. Rule 9A, which is lengthy, creates a procedure for the disposition of motions within its scope based solely on the papers, which usually consist of the motion, any opposition thereto, and any supporting legal memoranda. Paragraph (c) of rule 9A, set forth below,
Rule 26 is quite specific in allowing a hearing in connection with a motion for a new trial when a proper request is made. Commentators on the rules of civil procedure have observed in connection with a motion for new trial under Mass. R. Civ. P. 59, that “Massachusetts has . . . traditionally recognized the right to a hearing [on a rule 59 motion] except in nonjury cases where the ground is that the finding is against the weight of the evidence. There is no reason why this preRules practice should not continue, and Superior Court Rule 26 seems to formalize it, at least for that court” (footnotes omitted). J.W. Smith & H.B. Zobel, Rules Practice § 59.13 (1977). See Parker v. Lewis J. Bird Co., 221 Mass. 422, 425 (1915). See also J.R. Nolan, Civil Practice § 856, at 104 (1992) (“In jury cases, after a motion for new trial has been filed, the adverse party, and, inferentially the moving party, have a right to a hearing upon the motion”).
The plaintiff contends that, with the adoption of rule 9A, which by its terms would appear to govern procedure for all motions filed in cases in the Superior Court, rule 26 was impliedly repealed. We think the more reasonable approach, one consistent with long-standing practice in the courts of the Commonwealth as well as generally accepted canons of construction, is to view motions for a new trial, governed by the specific provisions of rule 26, as constituting an exception
While there is no Superior Court rule governing practice in connection with a motion for judgment notwithstanding the verdict, such a motion is usually joined with a motion for a new trial and both are decided together. In view of this fact, and the discussion above, we conclude that the defendant, who made a timely request for a hearing on his motion for new trial under rule 26, should have been afforded the opportunity to be heard on that motion and his motion for judgment notwithstanding the verdict before they were decided.
2. It is also suggested that the defendant’s motions were properly denied without a hearing because they failed to assign “with particularity the grounds therefor” as required by Mass. R. Civ. P. 7 (b) (1), 365 Mass. 749 (1974). See also rule 26 (“[a] motion for new trial shall specify the grounds thereof’). The defendant’s motion for a new trial assigned five common grounds for such a motion.
The orders denying the defendant’s motions for judgment notwithstanding the verdict and for a new trial are vacated. The motions are to be reconsidered after the defendant is given a hearing on the motions.
So ordered.
Rule 9A of the Rules of the Superior Court (1996) requires a moving party to serve a motion on a nonmoving party and accept service of a non-moving party’s opposition thereto before any papers are filed with a clerk of the Superior Court. Under the rule’s service and filing requirements, which also provide for service of cross motions and motions to strike, and responses thereto prior to filing, a considerable period of time could elapse from the date of service to the date of filing.
The defendant also appealed from the underlying judgment, but he makes no argument in his brief concerning the judgment. This aspect of the appeal is deemed waived.
An opportunity to be heard is required by Mass. R. Civ. P. 59 (d), 365 Mass. 827 (1974), only when the judge decides to grant a new trial for a reason not stated in the motion.
“(c) Hearings on Motions.
“(1) Marking. No party shall mark any motion for hearing. In the event that the court believes that a hearing is necessary or helpful to a disposition of the motion, the court will set the time and date for the hearing and will notify the parties of that date and time.
“(2) Request for Hearing. A request for a hearing shall set forth any statute or rule of court which, in the judgment of the submitting party, requires a hearing on the motion. After reviewing the motion, opposition and request for hearing, the court will decide whether a hearing should be held and, if a hearing is to be held, will notify the parties in accordance with Paragraph (c)(1) hereof. Failure to request a hearing shall be deemed a waiver of any right to a hearing afforded by statute or court rule.
“(3) Presumptive Right to a Hearing. Requests for hearings on the following motions will ordinarily be allowed. Attachments (Rule 4.1), Trustee Process (Rule 4.2), Dismiss (Rule 12), Adopt Master’s Report (Rule 53), Summary Judgment (Rule 56), Injunctions (Rule 65), Receivers (Rule 66), Lis Pendens (G. L. c. 184, § 15). Denial of a request for hearing on such motions will be accompanied by a written statement of reasons for the denial.”
The defendant contends that the service and filing requirements of rule 9A cannot be harmonized with those of Mass. R. Civ. P. 50 (b), 365 Mass. 814 (1974). That rule requires that a party “move” for judgment n.o.v. (or, in the alternative for a new trial) within ten days after entry of judgment. The Appeals Court recently construed this language (correctly, we think) as requiring service of a motion for judgment n.o.v. “within ten days after entry of the judgment and [filing], at the latest, within a reasonable time thereafter.” Russell v. Pride Convenience, Inc., 37 Mass. App. Ct. 502, 506 (1994). The Appeals Court has observed, with respect to Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), that a rule that requires service of a motion within ten days of entry of judgment, does not conflict with rule 9A. See Arthur D. Little, Inc. v. East Cambridge Savs. Bank, 35 Mass. App. Ct. 734, 743 (1994).
The motion asserted that a new trial was necessary because the verdict was against the evidence, the weight of the evidence, and the law, because there was error in the admission of evidence which substantially affected the defendant, and because the damages were excessive.
If the purpose or ground for the defendant’s motion for a directed verdict was not stated with sufficient particularity during the trial, the plaintiff had an obligation to object on that basis at that time. Failure to do so amounts to a waiver of the point. See D’Annolfo v. Stoneham Hous. Auth., 375 Mass. 650, 655 n.5 (1978); Soares v. Lakeville Baseball Camp, Inc., 369 Mass. 974, 975 (1976).