Zaniboni v. Massachusetts Trial Court (Lawyers Weekly No. 10-115-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11219 CAROLE J. ZANIBONI vs. MASSACHUSETTS TRIAL COURT. June 17, 2013. Practice, Civil, Report, Judgment notwithstanding verdict, New trial. The plaintiff, Carole J. Zaniboni, commenced this action in 2001, alleging that the defendant, the Massachusetts Trial Court (Trial Court), had not selected her for two different promotions in her department based on her age, in violation of G. L. c. 151B. In November, 2006, after a Superior Court jury found in her favor with respect to one of the two positions, the trial judge denied the Trial Court’s motion for judgment notwithstanding the verdict (judgment n.o.v.) but granted its alternative motion for a new trial. The parties filed cross appeals — Zaniboni from the allowance of the Trial Court’s motion for a new trial and the Trial Court from the denial of its motion for judgment n.o.v. The record was assembled (after some delay), and the case was entered in the Appeals Court in June, 2010. Because the judge had granted the motion for a new trial, the appeal was premature; the record should not have been assembled and the case should not have proceeded to an appellate court. See, e.g., Okongwu v. Stephens, 396 Mass. 724, 728-729 & n.7 (1986). See also J.W. Smith & H.B. Zobel, Rules Practice § 50.18, at 156-157 (2d. ed. 2006). At oral argument in March, 2011, a panel of the Appeals Court questioned the parties about the propriety of the appeal. Recognizing that the appeal was premature, the court issued an order after the argument stating, in relevant part, that “[t]he only remedy currently available to the parties for prosecution of an appeal of this interlocutory order is by means of a reported question. Mass. R. Civ. P. 64 (a), 365 Mass. 831 (1974).” The court also noted that it did “not suggest that the report of a question is or is not appropriate. The decision to report any question is, of course, committed to the sound discretion of the judge.”[1] The court stayed the appeal for thirty days “to permit the parties to proceed, as they may choose, in Superior Court to seek rule 64(a) relief.” The parties returned to the Superior Court where they filed a “joint motion to report [the] case for determination to the Massachusetts Appeals Court.” A Superior Court […]