50 Mass. App. Ct. 380 | Mass. App. Ct. | 2000
Background facts. Upon acquiring apparent title to a ten-acre vacant parcel of land in Medway (locus) in 1987, a developer (not involved in the instant appeal) constructed a sixteen-home subdivision on the locus. Between 1987 and 1990, the developer sold the homes to the original appellants herein. In August, 1993, all of those appellants found in their mailboxes a property owner’s worst nightmare: a letter from the appellees’ lawyer asserting that the locus had belonged to the appellees and not to the developer, so that the lots and houses thereon were located on land not owned by the present occupants.
A number of those homeowners immediately launched an action against the appellees in the Land Court in two counts, to quiet title and for declaratory relief. They alleged, as to both counts, that the appellees had no title to any portion of the locus, because the plaintiff homeowners enjoyed title by virtue of adverse possession, in that their predecessors in title had entered upon the locus under color of title and had thereafter openly, notoriously, continuously, and adversely possessed it for over twenty years. The appellees responded with wholesale denial of these allegations and a counterclaim seeking to establish their own title, to enjoin the homeowners’ continuing trespass, to compel them to remove their houses and improvements, and to recover damages for the appellees’ prolonged disseisin. Simultaneously, the appellees filed their own action in the Land Court against the remaining homeowners on the locus who were not involved in the earlier action, seeking the same relief that they demanded in their original counterclaim. The remaining homeowner defendants countered with an adverse possession counterclaim of their own that was identical to the claim asserted by their neighbors in the first action. The two actions were consolidated on the appellees’ motion.
The summary judgment proceedings. Following depositions of several parties and title experts on both sides of the controversy and armed with an opinion of a title examiner-attorney, the consolidated homeowners moved for summary judgment in both actions. In their written and oral presentations to the judge, they refined their claim by asserting that the
The appellees filed a cross motion for summary judgment in opposition to the homeowners’ motion (though not as to the appellees’ counterclaim in the initial action or their complaint). The appellees’ contentions — derived from their examination of the various claims of title and deed descriptions contained therein — were that the homeowners’ deed descriptions did not even include all of the land in the subdivision, so that the doctrine of color of title could not extend to such areas; and that, in any event, the homeowners’ color of title claim arose only from a 1987 deed, so they could not satisfy the twenty-year statutory requirement for adverse possession. The appellees’ arguments emphasized the impossibility, on the basis of the homeowners’ deeds and purported expert opinion, of accurately ascertaining a description or the boundaries of the area to which they laid claim. Because the homeowners had failed to satisfy their burden of establishing good title to the entirety of their lots within the subdivision, the appellees demanded dismissal of the homeowners’ complaint with prejudice.
The judge viewed the parties’ summary judgment arguments
The rule 54(b) certification. Following the denial of their summary judgment motion, the homeowners filed a motion for entry of a separate judgment on their claim of adverse possession under color of title, pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974),
The judge additionally concluded that “a stay is not appropriate, as many of the issues set forth [above] will require resolution regardless of the outcome of the Appeals Court’s review of the [color of title] Order. Of necessity, preparation for the trial of the remaining title and survey issues [including further discovery] will take a great deal of time, effort and expense for all parties. In the meantime, the Homeowners are left with anxious uncertainty as to the title to their homes, and they are unable to sell or mortgage them. The entry of partial judgment on the Homeowners’ color of title claim will permit the parties to prepare for the trial of the remaining issues in this case simultaneously with the review of the [color of title] Order, thereby expediting the ultimate resolution of this case and
The homeowners soon thereafter filed this appeal from the partial judgment entered by the judge, although (as previously noted at note 1, supra), by the time the matter was presented for argument before us, all of the homeowners but the Rices had dismissed their appeals with prejudice, indicating thereby less ongoing “anxious uncertainty” about their titles and the marketability of their homes than the judge had hypothesized.
Holding. The parties have devoted their appellate arguments to lengthy recitations of various chains of title and deed descriptions and to whether or not the judge erred in applying the doctrine of “adverse possession under color of title” to the facts of this case as presented in the summary judgment papers. We do not reach the merits of the appeal, however, because we deem the rule 54(b) certification to have been both legally and factually inappropriate.
Discussion. A. Standards of review and policy considerations. As its language reveals (see note 5, supra), a valid rule 54(b)
Whether there are multiple claims in an action and whether those claims have been finally adjudicated are matters of law subject to plenary review by an appellate court. See Spiegel v. Trustees of Tufts College, 843 F.2d 38, 43 (1st Cir. 1988); H & W Indus. v. Formosa Plastics Corp., 860 F.2d 172, 175 (5th Cir. 1988); Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., 860 F.2d 1441, 1444 (7th Cir. 1988); Sussex Drug Prods. v. Kanasco, Ltd., 920 F.2d 1150, 1153 (3d Cir. 1990); 10 Wright, Miller & Kane, Federal Practice and Procedure § 2655, at 38-43, & § 2656, at 52 (1998). The determination of the presence or absence of a just reason for delay, on the other hand, is left to the sound discretion of the trial judge and is subject to reversal only for an abuse of that discretion.
When applying rule 54(b), both the trial court in the first instance and an appellate court on review must ever bear in mind the rule’s underlying purpose of balancing the need for immediate review, based on the likelihood of injustice or hardship to the parties of a delay in entering a final judgment as to part of the case, against the appellate courts’ “traditional abhorrence of piecemeal appellate review,” Atkinson’s Inc. v. Alcoholic Bevs. Control Commn., 15 Mass. App. Ct. 325, 327 (1983), as a matter of sound judicial administration. See note 5, supra; United States Trust Co. v. Herriott, 10 Mass. App. Ct. at 327; In re Massachusetts Helicopter Airlines, Inc., 469 F.2d 439, 441 (1st Cir. 1972); Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 363 (3d Cir. 1975); Pahlavi v. Palandjian, 744 F.2d 902, 903-904 (1st Cir. 1984); Consolidated Rail Corp. v. Fore River Ry. Co., 861 F.2d 322, 325 (1st Cir. 1988); 10 Wright, Miller & Kane, Federal Practice and Procedure § 2654, at 35-36.
The Massachusetts policy disfavoring such premature appeals has an equally long history and has been as vigorously pronounced. It is a “general rule of practice so early announced, so frequently reiterated and so constantly followed, and so manifestly in the interests of parties litigant and the general public” that failure of litigants to observe it “can serve no purpose but to contribute to the loss of confidence in the courts as the avenue for adjudication of private dispute with reasonable dispatch.” Pollack v. Kelly, 372 Mass. 469, 470-471, 472 (1977), quoting from Weil v. Boston Elev. Ry., 216 Mass. 545, 549 (1914). See Vincent v. Plecker, 319 Mass. 560, 562-563 & n.l (1946); Scola v. Director of the Div. of Employment Sec., 326 Mass. 180, 181 (1950); Albano v. Jordan Marsh Co., 367 Mass. 651, 654 (1975); Rollins Envtl. Servs., Inc. v. Superior Ct., 368 Mass. 174, 178-179 (1975); Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 612 (1980); Manousos v. Sarkis, 382 Mass. 317, 321 (1981); Atkinson’s Inc. v. Alcoholic Bevs. Control Commn., 15 Mass. App. Ct. at 327.
Because of the bedrock policy against premature and piecemeal appeals, the Supreme Judicial Court has declared that
In short, rule 54(b) certification is a “special dispensation,” Feinstein v. Resolution Trust Corp., 942 F.2d 34, 39 (1st Cir. 1991), quoting from Spiegel v. Trustees of Tufts College, 843 F.2d at 44 n.5, which “should be used only ‘in the infrequent harsh case.’ ” Brunswick Corp. v. Sheridan, 582 F.2d at 183, quoting from Panichella v. Pennsylvania R.R. Co., 252 F.2d at 455. See United States Trust Co. v. Herriott, 10 Mass. App. Ct. at 322; Morrison-Knudsen Co. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981); Spiegel v. Trustees of Tufts College, 843 F.2d at 42; Consolidated Rail Corp. v. Fore River Ry. Co., 861 F.2d at 325. “Rule 54(b) was not meant to animate essentially fragmentary proceedings or to be employed in the absence of sufficiently compelling circumstances.” Spiegel v. Trustees of Tufts College, 843 F.2d at 46.
We finally take note of more immediately pressing policy considerations justifying the restrictive and infrequent use of rule 54(b). It is notorious that the caseload of this court has increased so dramatically, and the court is so overburdened with an ever-growing volume of appeals to be decided, that “[t]he appellate administration of justice in the Commonwealth faces a
With these principles and policies in mind, we assess the rule 54(b) certification at issue here.
B. Multiple claims and finality. The first step in appellate review of rule 54(b) cases is to “scrutinize the [trial] court’s evaluation of . . . the interrelationship of the claims so as to prevent piecemeal appeals in cases which should be reviewed only as single units.” Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 10 (1980). This case fails to survive that initial scrutiny.
“Whether ‘multiple claims’ exist ... is a complex question involving an area of the law characterized by the absence of settled guidelines.” Lexington Educ. Assn. v. Lexington, 15 Mass. App. Ct. 749, 750-751 n.3 (1983). See Minority Police Officers Assn. v. South Bend, 721 F.2d at 199 (it is often “unclear whether a complaint or other pleading presents ‘one claim for relief’ or multiple claims”); 10 Wright, Miller & Kane, Federal Practice and Procedure § 2657, at 67-81.
Even if a case involves multiple claims, however, the rule also requires that at least one of those claims be decided fully and finally. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 743 (1976); Continental Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1524 (9th Cir. 1987); Spiegel v. Trustees of Tufts College, 843 F.2d at 42-43; Consolidated Rail Corp. v. Fore River Ry. Co., 861 F.2d at 325; American Motorists Ins. Co. v. Levolor Lorentzen, Inc., 879 F.2d 1165, 1171 (3d Cir. 1989); Monument Mgmt. Ltd. Partnership v. Pearl, 952 F.2d 883, 885 (5th Cir. 1992); 10 Wright, Miller & Kane, Federal Practice and Procedure § 2657, at 67-68. “To satisfy the • requirements of Rule 54(b) ... the claim [finally] adjudicated must be a ‘claim for relief’ separable from and independent of the remaining claims in the case.” Brunswick Corp. v. Sheridan, 582 F.2d at 182. See American Motorists Ins. Co. v. Levolor Lorentzen, Inc., 879 F.2d at 1171 (“threshold issue ... is whether the order appealed from finally resolved at least one entire claim, leaving at least one separate claim unresolved”).
If, instead, an asserted claim is merely partially adjudicated, leaving unadjudicated related claims that largely depend on the same facts or as to which the factual differences are minor, the several factually related claims are not “genuinely separate claims,” Minority Police Officers Assn. v. South Bend, 721 F.2d at 200-201, and such a ruling should not be certified as a final judgment under rule 54(b). Ibid. See Acme Engr. & Mfg. Corp. v. Airadyne Co., 9 Mass. App. Ct. at 764; Acha v. Beame, 570 F.2d 57, 62 (2d Cir. 1978); Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., 860 F.2d at 1444; Sussex Drug Prods. v. Kanasco, Ltd., 920 F.2d at 1154; Smith & Zobel, Rules Practice § 54.5, at 308; 10 Wright, Miller & Kane, Federal Practice and Procedure § 2656, at 54-56.
In deciding whether one of several separately stated counts are “genuinely separate claims,” as opposed to merely a portion of a “single [litigation] unit,” Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. at 10, a determinative, indeed critical, distinction has been drawn between “separate ‘claim[s] for relief’ within the meaning of the rule . . . [and] different theories of recovery arising out of the same cause of action.” Lubanes v. George, 386 Mass. 320, 323 n.5 (1982). See American Motorists Ins. Co. v. Levolor Lorentzen, Inc., 879 F.2d at
Similarly, “[alternative [legal] theories of recovery based on the same factual situation are but a single claim, not multiple ones,” under rule 54(b). Sussex Drug Prods. v. Kanasco, Ltd., 920 F.2d at 1154. See Cott Bev. Corp. v. Canada Dry Ginger Ale, Inc., 243 F.2d 795, 796 (2d Cir. 1957); Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., 860 F.2d at 1445; American Motorists Ins. Co. v. Levolor Lorentzen, Inc., 879 F.2d at 1171; National Assn. for the Advancement of Colored People v. American Family Mut. Ins. Co., 978 F.2d 287, 291-292 (7th Cir. 1992). In a case where the issue adjudicated amounts to nothing more than a determination of one of several legal theories on which the same legal right is premised, the judge should not certify the ruling for immediate appeal. Leopold v. Fitzgerald, 421 F.2d 838, 839 (2d Cir. 1970).
Finally, there is only a single claim for relief, making a separate appeal under rule 54(b) inappropriate, in a case where the facts underlying the adjudicated portion of the case are largely the same as or substantially overlap those forming the basis for the unadjudicated issues. Spiegel v. Trustees of Tufts College, 843 F.2d at 45 (54[b] appeal not appropriate where there is “substantial . . . imbrication between the dismissed count[] and the surviving count ... [or t]he factual underpinnings of the adjudicated and nonadjudicated counts are . . . inextricably intertwined”). Though claims may be distinct even
The ruling on appeal in this case addressed only that aspect of the homeowners’ adverse possession claim which purported to rest on the doctrine of color of title. The color of title issue clearly does not constitute an entire “claim” for purposes of rule 54(b), but is rather merely an alternative theory of recovery not properly encompassed by the rule. The sole legal right the homeowners seek to vindicate, and the only real “claim”
We conclude as matter of law that the partial judgment entered below did not finally adjudicate a separate claim but merely eliminated one of the homeowners’ theories of relief with respect to the unitary claim they advance, legal title to their respective properties. Even though deciding the question formally presented, regarding the contours of the doctrine of adverse possession under color of title, might be of marginal utility in view of the relatively limited number of such cases in this Commonwealth, it will ill-serve the more fundamental interests of sound judicial administration and the proper alloca
C. Was there “no just reason for delay?” Though the lack of a final judgment on a truly separate claim is itself sufficient ground to dismiss this appeal, dismissal is also appropriate because the certification was not supported by the requisite analysis and by a sufficient basis for the conclusion that no just reason for delay existed.
The determination of the presence or absence of a just reason for delay requires that “the facts of each case be closely examined to ensure that allowing an appeal will not wrongly fragment the case. ... A court should also examine whether [certification] will advance the interests of judicial administration and public policy.” Consolidated Rail Corp. v. Fore River Ry. Co., 861 F.2d at 325. See United States Trust Co. v. Herriott, 10 Mass. App. Ct. at 322 (certification is proper “only where, after balancing the competing factors, the judge in the trial court can say with assurance based on facts in the record that finality of judgment should be ordered to advance the interests of sound judicial administration . . . , and to prevent the ‘danger of hardship or injustice’ posed by delay”); AllisChalmers Corp. v. Philadelphia Elec. Co., 521 F.2d at 364 (listing the several factors to be evaluated by appellate courts in considering the propriety of such a determination).
The certification at issue did not emerge from an identification or balancing of the factors that must inform a discretionary determination as to the existence, vel non, of a just reason for delay; and, to the extent it alluded to potentially relevant fac
i. Consistency with public policy. The prime factor of facilitating appropriate judicial administration, by avoiding premature and piecemeal appeals, is not mentioned in the certification analysis, despite the mandate to balance the need for the extraordinary relief of immediate review with that historic policy. Failure to account for so vital a consideration cannot be deemed consistent with the “strict compliance” expected by the Supreme Judicial Court in applying rule 54(b). Appleton v. Hudson, 397 Mass. at 813 n.3. Acknowledgment of a measured concern for judicial economy was almost irresistibly demanded on this record, given the commonality of the issues presented by all of the claims and counterclaims, as well as the recognition in the certification decision of the many complex issues remaining to be decided outside of the certification, including the- entirety of the homeowners’ proof of adverse possession. That scenario virtually guarantees our obligation to consider the same bundle of facts a second time.
ii. Nature of the case. The record does not establish that this case presents any of the “unusual and compelling circumstances,” Morrison-Knudsen Co. v. Archer, 655 F.2d at 966, or constitutes “the infrequent harsh case,” Brunswick Corp. v. Sheridan, 582 F.2d at 183, or involves the “danger of hardship
Although reference was made in the certification ruling to the “Homeowners [’] . . . anxious uncertainty as to the title to their homes,” the reference was not directed to the appropriateness of invoking rule 54(b) because of the danger of special hardship or injustice or harsh outcomes for the homeowners from any delay in appealing. Rather, the remark was made in connection with a denial of the homeowners’ motion for a stay of all proceedings while they prosecuted a rule 54(b) appeal; a stay was expressly declared to be inappropriate because of the “great deal of time, effort and expense for all parties” in developing and preparing the noncertified issues for trial. Even if the observation had been aimed at this critical rule 54(b) factor, however, it fell far from the mark, since the homeowners’ “anxious uncertainty” as to their title could only be relieved by their success in proving their basic adverse possession case, which remained the subject of discovery and trial.
iii. Mootness. Among the most significant factors to be
The possibility of mootness is additionally present when a plaintiff appeals the dismissal of some of his “claims” while others are still pending upon which he yet may be successful and which may gain him the entire remedy he seeks, thereby obviating his need to appeal altogether. See Brunswick Corp. v. Sheridan, 582 F.2d at 184-185; Spiegel v. Trustees of Tufts College, 843 F.2d at 44-45; Consolidated Rail Corp. v. Fore River Ry. Co., 861 F.2d at 326. The fact that resolution of the pending claim might well have such an effect militates against a rule 54(b) certification. Shrader v. Granninger, 870 F.2d 874, 879 (2d Cir. 1989).
Both prospects of mootness exist here. The homeowners’ goal is an adjudication of their good title to their respective lots in the subdivision. If they prevail on their pending adverse possession claim, they may well establish such title and retain their land — quite possibly all or a “substantial portion” thereof, depending on the nature and extent of their proof — and thus may never need to appeal the color of title ruling at all.
iv. Similarity or factual overlap of claims. An analysis of the degree of factual and legal relationship between the claims on appeal and the claims remaining pending in the trial court must inform the certification determination.
v. Similarity of parties. The entry of a final judgment pursuant to rule 54(b) “is not to be done lightly . . . when the action remains pending as to all parties.” Brunswick Corp. v. Sheridan, 582 F.2d at 183. “It will be a rare case where Rule 54(b) can appropriately be applied when the contestants on appeal remain, simultaneously, contestants below.” Spiegel v. Trustees of Tufts College, 843 F.2d at 44. See Shrader v. Granninger, 870 F.2d at 878; Nichols v. Cadle Co., 101 F.3d at 1449. Compare Dattoli v. Hale Hosp., 400 Mass. 175, 176-177 (1987) (54[b] certification appropriate when no claims remain pending against certain defendants); Feinstein v. Resolution Trust Co., 942 F.2d at 39-40 (dismissal of all claims against certain defendants “is the rare case where the absence of Rule 54[b] findings can be overlooked”).
Here, the certification ruling did not appear to take into account the fact that all of the homeowners continue to battle all of the appellees in the Land Court with respect to the nonadjudicated claims and issues. Indeed, that only two of the original twenty-one appellants (the Rices) sustain this appeal is persuasive evidence that a ruling from this court on the “color of title” issue as to the Rices’ unique circumstances alone is both unlikely to assist any other homeowner and unnecessary at this early date. See note 14, supra.
vi. Expediting trial. Massachusetts and Federal courts have long held that if deciding “the appeal [pursuant to a rule 54(b) determination] will not simplify, shorten or expedite the trial of the other claims still pending in the [trial] court . . . certification was improvident,” J.B.L. Constr. Co. v. Lincoln Homes Corp., 9 Mass. App. Ct. at 252-253 — at least when (as here) the two sets of claims are substantially related or overlapping, there is no demonstration of hardship or injustice resulting from delaying the partial appeal until the normal course following a dispositive final judgment, and a trial of remaining issues could effectively moot the rule 54(b) issue. See ibid.; note 14, supra.
vii. Sufficient statement of reasons. Although broad discretion is conferred on the trial court when deciding whether there is no just reason for delay, it is the obligation of an appellate tribunal whose jurisdiction has been invoked to determine the propriety of that exercise of discretion. J.B.L. Constr. Co. v. Lincoln Homes Corp., 9 Mass. App. Ct. at 252. To that end, the trial court “should ordinarily make specific findings setting forth the reasons for its order,” Spiegel v. Trustees of Tufts College, 843 F.2d at 43 & n.4; i.e., the court should “specifically enumerate all of the factors and concerns relied upon when reaching its [certification] decision.” Consolidated Rail Corp. v. Fore River Ry. Co., 861 F.2d at 325.
The findings that accompanied the entry of partial judgment here did not constitute the clear articulation of the reasons and factors that are predicates for entry of a certifiable judgment under rule 54(b). We discern no balancing of the competing purposes underlying rule 54(b), or evaluation of the interrelationship between the legal and factual issues raised by the dismissed and the pending claims, or identification and weighing of the relevant “equities” for and against an immediate appeal. The two factors that were mentioned did not give support to the conclusion that the partial judgment was properly certifiable (see supra at 383-385, 396, 397-398, notes 14-15) and were inconsistent with the explicit perceptions that the central issue in the consolidated case was the conflicting claims to ownership of the locus; that all of the proof required to establish the homeowners’ sole legal contention — title by adverse possession — as well as the appellees’ basis for asserting their title over the locus remained to be developed; and that the rival claims and counterclaims, both partially adjudicated and pending, were so intertwined as to be “mirror images of one another.”
Conclusion. A rule 54(b) certification must be the product of independent, comprehensive and detailed analysis of the relevant factors established in the case law. Trial judges fulfill their function as the requisite discerning “dispatcher” in such situations only by exercising discretion unambiguously “in the interest of sound judicial administration,” Sears, Roebuck & Co. v. Mackey, 351 U.S. at 435, 437, by preventing relaxation of “the rigorous standards that ought to be associated with Rule 54(b) certifications,” Nichols v. Cadle Co., 101 F.3d at 1449 n.3, and by insuring that the rule continues to be “used sparingly.” Id. at 1449.
We see “[n]othing in the papers before us suggesting] a pressing, exceptional need for immediate appellate intervention, or grave injustice of the sort remediable only by allowing an appeal to be taken forthwith, or dire hardship of a unique kind.” Spiegel v. Trustees of Tufts College, 843 F.2d at 45-46. The parties, who have presumably proceeded with discovery and trial preparation on the extensive remainder of the case, will have their full day in the Land Court on all relevant issues and will
The appeal is dismissed. The certification and entry, pursuant to Mass.R.Civ.P. 54(b), of the partial judgment for the appellees on the color of title issue are, accordingly, vacated; the order on summary judgment is restored to its interlocutory status under the second sentence of rule 54(b); and the case is remanded to the Land Court for further proceedings consistent with this opinion.
So ordered.
As stated by the judge (in a formulation not contested by either side), “In order to establish a right to land under color of title, the claimant must: (1) satisfy the elements of adverse possession; and (2) prove that the claim of ownership is based on a muniment [i.e., a document or writing] of title. The land possessed will be adjudged coextensive with the land described by the deed if these requirements are met. Bellis v. Bellis, 122 Mass. 414, 417 (1877). Thus ‘[t]he advantage which a person may gain from [the doctrine of color of title] is that the activities relied upon to establish adverse possession reach not only the part of the premises actually occupied, but the entire premises described in a deed to the claimant.’ Norton v. West, [8 Mass. App. Ct. 348, 351 (1979)].”
Indeed, the judge noted that the appellees’ demand for judgment on the entire complaint could not be allowed because they had “not established with certainty the location of [the lot they claimed title to] in relation to the subdivision. There are no instrument surveys before the court.... The court cannot establish boundaries based on the various deed descriptions without additional survey evidence relating to both of these parcels and abutting parcels. . . .”
Rule 54(b) provides, in pertinent part: “When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” The determination and direction described in the rule is commonly referred to as rule 54(b) “certification,” She Enterprises, Inc. v. License Commn. of Worcester, 10 Mass. App. Ct. 696, 698 n.1 (1980). In the absence of such a determination and direction, no appeal can be taken from a trial court’s partial “judgment” on a claim prior to entry of a final judgment disposing of all claims against all parties to the action. Bragdon v. Bradford O. Emerson, Inc., 19 Mass. App. Ct. 420, 422-423 (1985). Rule 54(b) “was adopted because of
The appellees did not protest the rule 54(b) certification below or on appeal, and neither side has briefed the issue. However, because our ability to review the merits of this appeal depends on whether the partial summary judgment, normally a non-appealable interlocutory order (see G. L. c. 231, §§ 113, 109; Acme Engr. & Mfg. Corp. v. Airadyne Co., 9 Mass. App. Ct. 762, 764 [1980]; Acha v. Beame, 570 F.2d 57, 62 [2d Cir. 1978]; and discussion infra at 385-387), was properly certified under rule 54(b), and because important policy interests are implicated (see infra at 387-389), we raise and resolve the issue sua sponte. See Paris v. Snappy Car Rental, Inc., 18 Mass. App. Ct. 968, 969 (1984); Doe v. Roe, 19 Mass. App. Ct. 270, 271 (1985); Tiffany v. Sturbridge Camping Club, Inc., 32 Mass. App. Ct. 173, 178-179 (1992); Backus Plywood Corp. v. Commercial Decal, Inc., 317 F.2d 339, 340-341 (2d Cir. 1963); Spiegel v. Trustees of Tufts College, 843 F.2d 38, 43 (1st Cir. 1988); Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., 860 F.2d 1441, 1443 (7th Cir. 1988); Monument Mgmt. Ltd. Partnership v. Pearl, 952 F.2d 883, 885 (5th Cir. 1992); Credit Francais Intl., S.A. v. Bio-Vita, Ltd., 78 F.3d 698, 706 (1st Cir. 1996). We note that Federal decisions are sources of precedent with respect to issues under our rule 54(b) because that rule “was taken verbatim from Fed.R.Civ.P. 54(b),” J.B.L. Constr. Co. v. Lincoln Homes Corp., 9 Mass. App. Ct. 250, 252 (1980), so that in construing our rule we may rely upon Federal cases interpreting its Federal cognate. Rollins Envtl. Servs., Inc. v. Superior Ct., 368 Mass. 174, 179-180 (1975) (involving effort by litigant to obtain “piecemeal appellate review” of a nonappealable trial court ruling).
“The multiple party aspect of rule 54(b) applies only if the [trial] court’s judgment disposes of all of the rights or liabilities of one or more of the parties” (emphasis supplied). Sussex Drug Prods. v. Kanasco, Ltd., 920 F.2d 1150, 1153 (3d Cir. 1990) That is not the case here. The judge’s order on summary judgment did not explicitly or implicitly dismiss any of the parties, all of whom continue to struggle with the claims and counterclaims not covered by the partial judgment. Rather, “[t]he issue here is whether the [trial] court’s order is a final judgment as to a single claim in a multiclaim action” (emphasis supplied). Ibid. We refer to the multiple-party language in the cited passage only for completeness.
Although the conventional label justifying appellate reversal of an inappropriate trial court determination that no just reason for delay existed is that the court committed an “abuse of discretion,” in the instant situation that term is inapt as well as unfortunate. As Judge Henry J. Friendly has observed, “There are a half dozen differing definitions of ‘abuse of discretion,’ ranging from ones that would require the appellate court to come close to finding that the trial court had taken leave of its senses [see, e.g., Davis v. Boston Elev. Ry., 235 Mass. 482, 502 (1920) (abuse of discretion by judge means “no conscientious judge, acting intelligently, could honestly have taken the view expressed by him”)] to others which differ from the definition of [legal] error by only the slightest nuance, with numerous variations between the extremes.” Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 763 (1982). Without essaying a complex analysis of the various types and levels of trial
Though several of the cited cases were decided before the adoption of the Massachusetts Rules of Civil Procedure in 1974, they remain nonetheless persuasive in that their pronouncements regarding piecemeal appeals have been relied upon or echoed by cases decided after the codification of the rules.
The Seventh Circuit, in an effort to minimize the appellate burden of rule 54(b) certification, has adopted the position in reviewing them that “[t]he presumption should be against characterizing a pleading as containing multiple claims for relief rather than one claim.” Minority Police Officers Assn. v. South Bend, 721 F.2d at 200 (emphasis supplied).
Cf. Lubanes v. George, 386 Mass. at 323 n.5 (“allegations of battery and negligence do not present separate ‘claims for relief’ within the meaning of the rule, but rather different theories of recovery arising out of the same cause of action”); Spiegel v. Trustees of Tufts College, 843 F.2d at 45 (“The common denominator of all counts is [the plaintiff’s] contention that she was wrongfully denied tenure. To be sure, she posits an assortment of possible reasons for the tenure denial. . . . But those possibilities ... all stem from the same overall series of events”); American Motorists Ins. Co. v. Levolor Lorentzen, Inc., 879 F.2d at 1171 (referring to defendant seeking to uphold 54(b) certification, the court said that “the theories of why it does not have to defend are not its claim. Rather, its claim is that it does not have to defend”).
A number of Massachusetts decisions have highlighted the nature of the requisite analysis. See J.B.L. Constr. Co. v. Lincoln Homes Corp., 9 Mass. App. Ct. at 252-253 (the trial judge should “stat[e] the reasons for his certification that there is no just reason for delay,” addressing, among other factors, whether “any hardship or injustice will result if the plaintiff is required to try its case . . . before securing appellate review,” -whether intermediate review of the judgment certified will or “will not simplify, shorten or expedite the trial of any of the other claims still pending in the [trial] [c]curt,” and whether the questions sought to be raised by the appeal might “become moot if the [trier of fact ultimately found] ... for the [appellee]”); United States Trust Co. v. Herriott, 10 Mass. App. Ct. at 322 (noting as another important factor whether “the remaining claims and counterclaims were factually and legally distinct from the claim” certified). See also High-Tech Sales, Inc. v. Olektron Corp., 31 Mass. App. Ct. 912, 913 (1991) (reiterating the J.B.L. Constr. factors and adding that trial judge must also demonstrate the exercise of “special care” when certifying issues in a complaint where there is also a counterclaim, in order to determine the factual relationship between the two); Kobico, Inc. v. Pipe, 44 Mass. App. Ct. 103, 105 n.2 (1997) (reiterating the factors mentioned in J.B.L. Constr. and adding thereto whether the appealed and the remaining issues “are overlapping [and] . . . raise virtually identical issues” and the interest of “judicial economy at the appellate level”).
Because of the long-recognized inevitability and ubiquity of controversies over land, the Massachusetts Bay Colony enacted a recording act as early as 1640 for the declared purpose that “[e]very man may know what estate or interest other men may have in houses, lands or other hereditaments they are to deal.” See Eno & Hovey, Real Estate Law § 2.1, at 13 n.l (1995). The instant real estate controversy also does not raise any issue of public import transcending the peculiar concerns of the litigants, a factor whose presence might well bring it within the ambit of rule 54(b). Contrast Lexington Educ. Assn. v. Lexington, 15 Mass. App. Ct. at 751 n.3 (immediate appeal appropriate because the partial judgment construing G. L. c. 32B “deals with a subject of considerable importance to municipalities throughout the Commonwealth and contradicts the Group Insurance Commission’s interpretation of G. L. c. 32B, upon which many public authorities may have relied . . . [thereby] creating] uncertainty and confusion over an ongoing matter of public administration, previously thought to be settled”); Tiffany v. Sturbridge Camping Club, Inc., 32 Mass. App. Ct. at 174 (questionable certified partial summary judgment addressed only because the matter involved “issues of first impression regarding the applicability and retroactivity of G. L. c. 183B, the Real Estate Time-Share Act”).
In fact, the homeowners “indicated” below that they intended to appeal the color of title ruling “in the event” that they did not succeed in the remainder of the case, thereby implying that “in the event” they won on their remaining theories they would not pursue an appeal. It bears repeating in this respect (see note 1, supra) that the Rices, owners of a single lot in the subdivision, are the sole remaining appellants on the color of title appeal, all others having dismissed their appeals with prejudice. This further undermines the reality of the homeowners’ assumed “anxious uncertainty” as to their title, which was not in any event a support for the conclusion that an immediate appeal and an early appellate ruling were needed.
As indicated earlier, one premise of the certification was that “[s]ome, but not all of these [remaining] issues, may become moot depending on the Appeals Court’s disposition of Homeowners’ [color of title appeal],” although no such potentially moot issues were specified. We do not, however, see how proof of the remaining core issues, the “fact and extent of adverse possession,” would be affected regardless of our ruling on the merits of the color of title appeal. If we were to uphold the dismissal of the color of title theory, the homeowners would still be required to prove “traditional” adverse possession if they are to succeed in establishing good title to any portion of their properties. If we were to reverse the dismissal of the color of title theory, the homeowners could proceed to trial on that theory, but it would still require (as was acknowledged below) proof of all of the very same elements of adverse possession. Thus, no aspect of the future trial below would be significantly assisted or simplified by our rendering an opinion on the color of title issue. See subsection vi, infra.
As discussed supra at 390-394, the relationship between adjudicated and unadjudicated claims is critical in the initial, “jurisdictional” phase of the rule 54(b) analysis, i.e., in identifying whether there are multiple claims and, if so, whether one of those claims has been decided with finality, as well as in the discretionary phase of determining whether there is just reason for delaying an immediate appeal. See Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., 860 F.2d at 1444 n.3, analyzing Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. at 8 & 10. See also Cold Metal Process Co. v. United Engr. & Foundry Co., 351 U.S. 444, 452 (1956) (relationship between adjudicated and unadjudicated claims bears on the “exercise of [a judge’s] discretion” pursuant to rule 54[b]).
These principles apply not only to the connection between the several “claims” one party may advance, but also to the similarities between one party’s claims and an opposing party’s counterclaims. “[C]ounterclaims, whether compulsory or permissive, present no special problems for Rule 54(b) determinations; counterclaims are not to be evaluated differently from other claims .... Like other claims, their significance for Rule 54(b) purposes turns on their interrelationship with the claims on which certification is sought.” Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. at 9. See United States Trust Co. v. Herriott, 10 Mass. App. Ct. at 322; Pahlavi v. Palandjian, 744 F.2d at 904. See also Brunswick Corp. v. Sheridan, 582 F.2d at 183 (where “primary claim and . . . counterclaim were inextricably interrelated,” allowing immediate appeal on dismissal of counterclaim improvident). Because there may be a formalistic tendency to treat at least permissive counterclaims as severable from principal claims, “special care [is] called for [in] the presence of a counterclaim.” High-Tech Sales, Inc. v. Olektron Corp., 31 Mass. App. Ct. at 913. See DiCicco v. Berwick, 27 Mass. App. Ct. 312, 315 (1989); Tiffany v. Sturbridge Camping Club, Inc., 32 Mass. App. Ct. at 179. (Here, of course, both sets of counterclaims were “so closely connected,” Potier v. AW. Perry, Inc., 286 Mass. 602, 608 [1934], as to constitute compulsory counterclaims. See Reporter’s Notes to Mass.R.Civ.P. 13[a], Mass. Gen. Laws Ann., Rules of Civil Procedure, at 151-152 [West 1992]). We do not discern the exercise of that “special care” in this case, where it was acknowledged below that “because they share common parties and both relate to the ownership of a certain parcel of land,” the consolidated cases were “in fact almost mirror images of one another” (emphasis added). Although an immediate appeal was allowed to proceed in the homeowners’ original action “on the claim of adverse possession under color of title only asserted by [the homeowners],” the ruling explicitly noted a number of issues remained for trial, including the appellees’ counterclaims — the very claims which were “mirror images” of the homeowners’ claims, and presumptively, therefore, inappropriate for rule 54(b) certification. We conclude that the manifest imbrication of the homeowners’ claims, inter se and with the appellees’ counterclaims, in itself dictated against rule 54(b) certification, in the absence of any “unusual and compelling circumstances,” Morrison-Knudsen Co. v. Archer, 655 F.2d at 966, which are not here presented. See Pahlavi v. Palandjian, 744 F.2d at 904-905.
The statement in the certification ruling, that “[s]ome, but not all of these [remaining] issues, may become moot” by a decision on this appeal, appears inconsistent with the explicit recognition therein that the central issues in the consolidated litigation — “the fact and extent of the adverse possession [claimed by the homeowners]” — remain to be tried.
When the trial court “so specifies the bases for its decision, then . . . [its] discretion . . . will be accorded great deference.” Consolidated Rail Corp., 861 F.2d at 326.