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March 27, 2026 Get Citation Alerts Download PDF Add Note

Rockland Trust Company v. Robert J. Langone.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 25-P-0692

• Precedential Status: Non-Precedential

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (50.6K)

• PDF

Combined Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-692

ROCKLAND TRUST COMPANY

vs.

ROBERT J. LANGONE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This matter, which has been in litigation for an

astonishing twenty-plus years, originates from two promissory

notes issued in the 1980s to Rockland Trust Company (Rockland

Trust) by Aunyx Corporation (Aunyx), a now defunct corporation.

Rockland Trust first filed an action to collect on the notes in

1991, but that action was dismissed by agreement of the parties.

Over ten years later, after Aunyx was dissolved, Rockland Trust

filed this action in the District Court against Robert J.

Langone, as guarantor of Aunyx's obligations, seeking again to

collect on the notes. After a bench trial, Rockland Trust

prevailed on its claims, and judgment entered in its favor in

January 2007. That judgment was later amended in February 2009
and April 2010.

In October 2010, after his unsuccessful appeal to a panel

of this court, Langone moved in the District Court for relief

pursuant to Mass. R. Civ. P. 60 (b) (6), 365 Mass. 828 (1974).

The judge who presided over the original trial (first judge)

allowed the motion on the ground that Langone's counsel had

failed to raise a potentially dispositive argument at the trial.

After Langone was then allowed to assert a new counterclaim for

breach of contract, Rockland Trust's claims and Langone's

counterclaims were litigated for the next several years,

resulting in new judgments that entered in 2021. Both parties

appealed from the judgments to the Appellate Division of the

District Court, which dismissed Rockland Trust's appeal based on

its noncompliance with Dist./Mun. Cts. R. A. D. A. 8C (1994),

and rejected Langone's appeal on the merits.

The parties' cross-appeals from the Appellate Division's

decision are now before us. While the briefs raise numerous

issues, we need decide only two of them to resolve the appeals.

First, we conclude that the Appellate Division erred in

dismissing Rockland Trust's appeal. Second, on the merits of

Rockland Trust's appeal, we conclude that the first judge erred

in allowing Langone's motion for relief under rule 60 (b) (6).

Accordingly, we reverse the decision of the Appellate Division

2
dismissing the appeal and the first judge's order allowing the

motion for relief under rule 60 (b) (6), vacate the 2021

judgments, and remand the matter to the District Court for

reinstatement of the April 2010 amended judgment and for further

proceedings.

Background. The following essential facts are undisputed.

In May 1984 and May 1987, Aunyx issued two promissory notes to

Rockland Trust in the amounts of $95,633 and $12,493.11,

respectively. Langone was then the president of Aunyx and in

June 1984 executed an unlimited guaranty of its obligations to

Rockland Trust.

In 1991 Rockland Trust filed a complaint in the District

Court against Aunyx and Langone, seeking to collect the amounts

allegedly owed under the promissory notes. The 1991 action was

later dismissed by agreement of the parties. The terms of this

agreement, although the subject of later litigation, are not

apparent from the record.

In 2003, over five years after Aunyx was formally

dissolved, Rockland Trust filed this action against Langone,

claiming that he was liable under the guaranty to pay the

remaining amounts owed under the promissory notes. In January

2007, after a bench trial, the first judge ruled in favor of

Rockland Trust on its claims and on Langone's counterclaim under

3
G. L. c. 93A, and judgment entered for Rockland Trust in the

amount of $43,179.29 in damages, plus $15,000 in attorney's fees

and $5,648.50 in costs. Following extensive postjudgment motion

practice and a stop at the Appellate Division, the parties'

various appeals and cross-appeals were docketed in this court.

In December 2009 a panel of this court issued an unpublished

memorandum and order affirming in all respects, and the Supreme

Judicial Court denied further appellate review in January 2010.

In October 2010 Langone returned to the District Court and

moved under rule 60 (b) (6) for relief from all judgments

previously entered against him. Langone argued that he was

entitled to relief based on allegedly unethical conduct by

Rockland Trust's attorney and the alleged recent discovery that

the 1984 note was "rolled into" a subsequent note, which was

stamped "PAID." The court took no action on Langone's motion

until a hearing was held in February 2014. After that hearing

Langone filed a supplemental memorandum in which he argued that

"[a]s established at the hearing" Rockland Trust had "falsely

represented" at trial that the 1984 note "was Note #01218 when

in actuality it was an entirely different Note #5?128."

In July 2014 the first judge allowed Langone's motion and

vacated the original judgment on the ground that "the

discrepancy between the note used in this underlying action and

4
the note identified on [Rockland Trust's] accounting ledger"

raised a question "whether or not the debts which were the

subject of these notes were paid or perhaps rolled into other

notes and then satisfied." A year later, Langone filed a motion

to assert a new counterclaim for breach of contract, which a

second judge allowed over Rockland Trust's opposition. This

counterclaim was tried before a jury in May and June 2018, while

Rockland Trust's claims and Langone's c. 93A counterclaim were

reserved for decision by the trial judge (third judge).

After multiple days of testimony, the jury returned a

special verdict finding in Langone's favor on his breach of

contract claim. The third judge then issued a decision on the

jury-waived claims, finding in Langone's favor on Rockland

Trust's claim under the 1984 note, and in Rockland Trust's favor

on its claim under the 1987 note and Langone's c. 93A

counterclaim. Subsequently, the third judge allowed both

parties' respective motions to assess prejudgment interest from

the date of the breach of contract and denied Rockland Trust's

motion for attorney's fees relating to its claim under the 1987

note. On March 31, 2021, judgments entered accordingly in the

amounts of $44,901.61 for Rockland Trust and $592,628.02 for

Langone.

5
On April 6, 2021, Rockland Trust filed a timely notice of

appeal to the Appellate Division. On May 17, 2021, Rockland

Trust filed a designation that it was appealing on the record of

proceedings pursuant to Dist./Mun. Cts. R. A. D. A. 8C (rule 8C

designation).1 Langone filed his own notice of appeal to the

Appellate Division on April 16, 2021.

On November 24, 2021, Langone moved to dismiss Rockland

Trust's appeal on the ground that Rockland Trust did not file

its rule 8C designation within thirty days of filing its notice

of appeal, as required by rule 8C. After a hearing a fourth

judge denied Langone's motion. Langone then filed another

notice of appeal to the Appellate Division from the fourth

judge's order.

In a January 2025 decision, the Appellate Division

dismissed Rockland Trust's appeal, concluding that Rockland

Trust's eleven-day delay in filing its rule 8C designation

warranted the penalty of dismissal. The Appellate Division

rejected Langone's appeal from the underlying judgments on the

merits.

1 Although the District Court docket reflects that Rockland
Trust filed its rule 8C designation on May 14, 2021, Rockland
Trust does not dispute that that is an error and the actual
filing date is May 17.

6
Discussion. 1. Dismissal of Rockland Trust's appeal. The

rules governing appeals to the Appellate Division provide for

three alternative routes of appeal. As pertinent here, rule 8C

allows an appellant to appeal based on "the record of

proceedings." Dist./Mun. Cts. R. A. D. A. 8C. To proceed under

this route, the appellant must file a designation of its intent

to do so, accompanied by a copy of the transcript order or a

certification that production of a transcript is not necessary.

See id. Where, as here, no procedures under rules 8A or 8B were

initiated, the rule 8C designation must be filed within thirty

days of the filing of the notice of appeal. See id.

Rockland Trust does not dispute that it filed its rule 8C

designation eleven days too late. It argues, however, that the

Appellate Division erred in dismissing its appeal because the

fourth judge's order denying Langone's motion to dismiss the

appeal was not an appealable order and, even were it appealable,

the fourth judge did not abuse his discretion in denying the

motion. We agree with the latter contention and thus need not

reach the former.2

2 As Rockland Trust observes, several Supreme Judicial Court
opinions from the mid-twentieth century endorse the proposition
that "[a]n order denying a motion to dismiss an appeal is
neither an interlocutory nor a final decree, and is not
appealable." MacNeil Bros. Co. v. State Realty Co. of Boston,
334 Mass. 706, 706 (1956). See also, e.g., Thayer Co. v.
Binnall, 326 Mass. 467, 471 (1950). It is unclear from those

7
In determining whether a procedural error warrants

dismissal of an appeal, "a distinction is taken between serious

missteps and relatively innocuous ones." Schulte v. Director of

Div. of Employment Sec., 369 Mass. 74, 79 (1975). Some errors,

such as those relating to the timely institution of an appeal,

"are seen on their face to be so repugnant to the procedural

scheme, so destructive of its purposes, as to call for dismissal

of the appeal." Id. With respect to other errors, however,

"the judge is to consider how far they have interfered with the

accomplishment of the purposes implicit in the [procedural]

scheme and to what extent the other side can justifiably claim

prejudice" and then "decide whether the appeal should go forward

without more, or on terms, or fail altogether." Id. at 80.

Here, without engaging in that inquiry, the Appellate

Division determined that Rockland Trust's "failure to file a

timely appeal on the record of proceedings designating the

appellant's election to proceed under [r]ule 8C constitute[d] a

serious procedural misstep, the presumptive penalty for which is

opinions, however, whether they are stating a rule of general
applicability or a rule specific to the procedures of the
Supreme Judicial Court at the time. Cf. Karen Constr. Co. v.
Lizotte, 396 Mass. 143, 145-146 (1985) (reviewing and affirming
judge's order denying plaintiff's motion to dismiss defendant's
appeal as untimely). Thus, where we can reach a decision on a
different ground, we think it prudent to do so.

8
the dismissal of the appeal." The Appellate Division then

determined that the only way Rockland Trust could have avoided

dismissal was to bring a motion to enlarge under Dist./Mun. Cts.

R. A. D. A. 14 (b), setting forth good cause for its delay in

filing the rule 8C designation. Because Rockland Trust did not

bring such a motion, the Appellate Division concluded that the

fourth judge had no discretion to enlarge the rule 8C time

period and that dismissal of Rockland Trust's appeal was thus

required as a matter of law.

We agree with Rockland Trust that this was error. Rockland

Trust's delay in filing its rule 8C designation was not, as the

Appellate Division suggested, akin to a failure to institute a

timely appeal. There is no dispute that Rockland Trust filed a

timely notice of appeal from the judgments; its failure to file

its rule 8C designation within thirty days of the notice, while

a procedural misstep, was not one that affected the validity of

the appeal. See Dist./Mun. Cts. R. A. D. A. 3 (a). Moreover,

that Rockland Trust did not file a motion to enlarge under rule

14 (b) did not justify dismissal of its appeal as a matter of

law. Rockland Trust cured its noncompliance with rule 8C within

eleven days of the deadline, and Langone did not file his motion

to dismiss the appeal until over six months later. Meanwhile,

transcripts were filed with the court, and Rockland Trust took

9
steps to perfect its appeal by filing a supplement to its rule

8C designation. In these circumstances Rockland Trust could

reasonably have believed that it did not need to file a motion

to enlarge. Cf. Mass. R. A. P. 10 (c), as appearing in 481

Mass. 1618 (2019) (appeal may not be dismissed based on

appellant's noncompliance with procedural rules governing

assembly of record if appellant cures noncompliance before

hearing on motion to dismiss).

Contrary to the Appellate Division's reasoning, the

relevant question is not one of law, but whether the fourth

judge abused his discretion in denying Langone's motion to

dismiss Rockland Trust's appeal. See Karen Constr. Co. v.

Lizotte, 396 Mass. 143, 146 (1985) (denial of motion to dismiss

appeal reviewed for abuse of discretion). Cf. Scheuer v.

Mahoney, 80 Mass. App. Ct. 704, 708 (2011) (dismissal of appeal

reviewed for abuse of discretion). Indeed, the Appellate

Division's own precedent recognizes that judges have "broad

discretion" to extend the deadlines for complying with rule 8C

(quotation and citation omitted). Choice Health v. Devcon

Enters., 2006 Mass. App. Div. 93, 94 (2006). We see no abuse of

that broad discretion on the record before us. Rockland Trust

missed the rule 8C deadline by only eleven days and was

otherwise diligent in prosecuting its appeal, and Langone does

10
not, and cannot reasonably, claim that he was prejudiced by the

slight delay. The fourth judge could have determined in his

discretion that the extreme penalty of dismissal was unwarranted

on these facts. See id. at 94-95 (judge was within discretion

to allow enlargement of time to comply with rule 8C where

appellant took other steps to perfect appeal and three-week

delay in filing rule 8C designation "in no way prejudiced"

appellee).

Moreover, Langone's failure to file a transcript of the

motion to dismiss hearing with the Appellate Division precludes

us from reaching the opposite conclusion. We cannot blindly

accept Langone's representation that the transcript would not

make any difference to our resolution of the issue. Because we

do not know what was said at the hearing, we have no basis on

which to conclude that the fourth judge abused his discretion in

denying Langone's motion. See Karen Constr. Co., 396 Mass. at

146 ("Given the broad discretion granted to the judge in this

matter and the opportunity he had to hear counsel's argument, we

cannot say that he abused his discretion in denying the

[plaintiff's] motion to dismiss the [defendant's] appeal");

Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995) (appellant's

obligation to include parts of records essential for review "is

11
a fundamental and long-standing rule of appellate civil

practice" [quotation and citation omitted]).

1. Merits.3 Rockland Trust argues that the March 2021

judgments should be reversed on various, alternative grounds,

including that the first judge should not have allowed Langone's

motion under rule 60 (b) (6) for relief from the original

judgment. We agree that the first judge erred in vacating the

original judgment and thus need not address Rockland Trust's

other arguments.

"In the interest of finality of judgments, relief under

rule 60 (b) (6) is only to be granted in extraordinary

circumstances." Sahin v. Sahin, 435 Mass. 396, 406 (2001). A

judge may allow a motion under rule 60 (b) (6), the "catchall

provision," only "when justified by some reason other than those

set forth in rule 60 (b) (1)-(5)." Id. at 406-07.

3 Langone argues in a footnote in his brief that, in the
event we were to reverse the Appellate Division's dismissal of
Rockland Trust's appeal, the appropriate course of action would
be to remand the appeal to the Appellate Division for decision
on the merits. Rockland Trust counters in its reply brief that
we should reach the merits in the first instance because a
remand would only result in additional delay. When asked about
this issue at oral argument, Langone's counsel did not take a
firm position on it and instead deferred to the court's
discretion. In the circumstances, and because the merits of
Rockland Trust's appeal have been briefed, we will exercise our
discretion to reach them.

12
As mentioned, the first judge allowed Langone's motion

based on the alleged discrepancy between the number on the 1984

note and the number on Rockland Trust's accounting ledger, which

the first judge found raised a question whether Langone had in

fact paid the note. Langone's counsel did not make this

argument at trial, even though both the 1984 note and the

accounting ledger had been admitted in evidence. Nonetheless,

drawing an analogy to the right of effective assistance of

counsel in criminal cases, the first judge concluded that

vacatur of the original judgment was warranted because "justice

would be defeated if the court were to ignore the deficiency in

[Langone's] presentation at trial."

While well intentioned, this was not a proper basis for

granting rule 60 (b) (6) relief. A motion to vacate based on

inattention or negligence by counsel falls "within the purview

of rule 60 (b) (1)," which applies to "mistake, inadvertence,

surprise, or excusable neglect." Kennedy v. Beth Israel

Deaconess Med. Ctr., Inc., 73 Mass. App. Ct. 459, 464 (2009).

See Tibbits v. Wisniewski, 27 Mass. App. Ct. 729, 731 (1989).

Motions under rule 60 (b) (1) must be brought within one year of

entry of judgment, and this "time limit cannot be extended."

Chavoor v. Lewis, 383 Mass. 801, 803 (1981). Here, Langone

filed his motion more than three years after the original

13
judgment on liability entered in January 2007. The court was

therefore "without power to entertain" the motion. Spadorcia v.

South Shore Oral Surgery Assocs., Inc., 17 Mass. App. Ct. 362,

364 (1984). We are unpersuaded by Langone's contention that the

one-year limitation does not apply because his motion expressly

sought relief under rule 60 (b) (6). It is the substance, not

the title, of the motion that matters, and even "egregious

inattention of counsel" does not allow a party to use the

catchall provision to "circumvent[] the time limits written into

rule 60 (b) in clauses (1), (2), and (3)." Tibbits, supra at

1. See Kennedy, supra at 467.4

We are further unpersuaded by Langone's contention that

Rockland Trust waived its right to challenge the first judge's

order by initially filing an appeal from the order and then

withdrawing it. The first judge's order was interlocutory, and

not, as Langone says, a "final appealable judgment." See

Chavoor, 383 Mass. at 803. Even assuming that Rockland Trust

could have pursued an interlocutory appeal, it was not required

To the extent Langone's motion sought relief based on
4

newly discovered evidence and unethical conduct by Rockland
Trust's attorney, those arguments fall under rule 60 (b) (2)
(newly discovered evidence) and 60 (b) (3) (misconduct of an
adverse party), respectively. Both of those rules are also
subject to a one-year time limitation. See Mass. R. Civ. P.
60 (b).

14
to do so but was instead entitled to wait until entry of final

judgment and then appeal. See Littles v. Commissioner of

Correction, 444 Mass. 871, 877 (2005); Roberson v. Boston, 19

Mass. App. Ct. 595, 597 (1985). In other words Rockland Trust's

withdrawal of its interlocutory appeal "in no way prejudice[d]

[its] ability to secure review of" the first judge's order "on

appeal following final judgment." Packaging Indus. Grp., Inc.

v. Cheney, 380 Mass. 609, 613 (1980).

For these reasons we are constrained to conclude that the

first judge erred in granting relief under rule 60 (b) (6) and

vacating the original judgment. Our conclusion in this regard

makes it unnecessary for us to reach the numerous other issues

raised by the parties in their respective appeals, including

Rockland Trust's arguments that Langone's counterclaim for

breach of contract fails as a matter of law5 and Langone's

arguments that we should reverse certain aspects of the third

judge's decision on the jury-waived claims. As the first judge

was without the power to reopen the matter in the first place,

5 We note that Rockland Trust's arguments are not without
force. In particular, Rockland Trust credibly argues that there
was no contract between Rockland Trust and Aunyx; that, even if
there was, Langone was not an intended beneficiary; and that
Langone's claim is barred by the statute of limitations. These
arguments appear to raise questions of law that should have been
resolved by the court instead of the jury, as Rockland Trust
repeatedly asserted below.

15
see Spadorcia, 17 Mass. App. Ct. at 364, the protracted

proceedings that followed are a nullity. The judgments after

the jury trial and on the jury-waived claims must therefore be

vacated, and the original judgment reinstated. Because the

parties have not briefed how prejudgment interest and attorney's

fees should be calculated in this situation, the matter is

remanded for further proceedings on those questions.6 We add,

however, that it is this court's sincere hope that the parties

can move expeditiously toward a fair and equitable resolution

and finally put this decades-long litigation to an end.

Conclusion. The January 2025 decision of the Appellate

Division dismissing the appeal is reversed. The order of the

District Court judge dated July 24, 2014, allowing the motion

for relief under rule 60 (b) (6) is reversed. The judgments

dated March 31, 2021, are vacated, and the matter is remanded to

6 Although Rockland Trust does argue that the third judge
erred by denying its motion for attorney's fees relating to its
claim under the 1987 note, we need not reach that issue. The
third judge's rationale was that it would be reasonable for the
parties to bear their own fees because Langone prevailed on his
counterclaim for breach of contract. Because we are vacating
the judgment on the counterclaim, the third judge's rationale is
no longer applicable. We note that the guaranty provides that
"[t]he Guarantor further agrees . . . to pay to the Bank
forthwith upon demand, in funds immediately available to the
Bank, all costs and expenses (including court costs and legal
expenses) incurred or expended by the Bank in connection with
this Guaranty and the enforcement hereof."

16
the District Court for reinstatement of the amended judgment

dated April 14, 2010, and for further proceedings consistent

with this decision.

So ordered.

By the Court (Shin, Walsh &
Allen, JJ.7),

Clerk

Entered: March 27, 2026.

7 The panelists are listed in order of seniority.

17