Opinion
19-P-151
04-05-2022
Charles H. BARBOUR, Jr., personal representative, v. Linda C. CONSAUL & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Virginia Barbour, through her son and power of attorney Charles H. Barbour, Jr., brought this action against her attorney, Scott Consaul, his law firm, and his wife, Linda, related to the sale of Virginia's real property to Linda as trustee of the Martha Avenue Realty Trust (trust) in 2013. Noting that there was no opposition, in 2017 a Superior Court judge allowed Linda's motion to dismiss for failure to prosecute, and judgment was thereupon entered for Linda. Charles appeals from the judgment of dismissal and the denial of his subsequent motion for reconsideration. We vacate the judgment.
The motion did not identify the rule pursuant to which it was filed. The order granting the motion states that it was issued pursuant to Mass. R. Civ. P. 12(b). However, a motion to dismiss for failure to prosecute is governed by Mass. R. Civ. P. 41(b)(2), 365 Mass. 803 (1974).
Because we vacate the judgment, we vacate the denial of the motion for reconsideration.
Discussion. "On motion of the defendant, with notice, the court may, in its discretion, dismiss any action for failure of the plaintiff to prosecute." Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974). Such a dismissal "is committed to the sound discretion of the trial judge and can be reversed only in the rare instance that it is so arbitrary, capricious, whimsical or idiosyncratic that it constitutes an abuse of discretion amounting to an error of law." Dewing v. J.B. Driscoll Ins. Agency, 30 Mass. App. Ct. 467, 470 (1991). Examination of the record demonstrates that this is such an instance.
On July 13, 2017, the defendant's attorney, Brian Akashian, served a motion to dismiss for failure to prosecute. Akashian knew that the plaintiff's attorney had been disbarred. Accordingly, he served the motion to dismiss for failure to prosecute not just on the plaintiff's attorney David Stein at Stein's last address but also on Charles using a Tewksbury address referenced in the complaint. Akashian then filed the motion with the court on July 31, 2017, supported by his affidavit representing that he had served all named parties and that he had not received an opposition "from any named party." See Superior Court Rule 9A (service requirements).
As is clear from the certificate of service, Akashian did not serve Virginia, even though Akashian knew her address in Ocala, Florida because it was listed in a joint pre-trial memorandum signed by counsel for all parties.
Linda corresponded to Virginia at this Florida address before the litigation and Virginia continued to use that address after the motion to dismiss had been served, though the complaint also listed a Tewksbury address for Virginia.]
Moreover, the docket reveals that in the interim between service of the motion to dismiss and its filing, Akashian was notified of Charles's current address when Charles served and filed an emergency motion on July 22 (docketed July 25) to allow plaintiff to appear pro se. These papers stated Charles's address in full in Dunnellon, Florida. Yet, despite this notice of Charles's address in Dunnellon, Florida, Akashian did not reserve the motion papers on Charles and subsequently filed the motion to dismiss motion package pursuant to Superior Court Rule 9A but again used the Tewksbury address rather than the Dunnellon, Florida address.
In fact, Akashian should have been on notice at the time he served the motion to dismiss on Charles in Tewksbury that Charles lived in Florida. Though Akashian was not counsel for Linda in her bankruptcy, just thirteen days earlier, on June 30, 2017, Charles had served a motion in the bankruptcy matter on Akashian stating that Charles lived in Florida. This same pleading states that plaintiff's counsel had been disbarred and that Charles had been unsuccessful in obtaining successor counsel, but that he had reconstructed the file and should be able to engage legal counsel in this action in the next 30 days.
The allowance of the motion to dismiss must be vacated in light of the shortcomings with respect to how service of the motion to dismiss was made, and on whom. Although we acknowledge Akashian's representation as an officer of the court that neither mailing was returned to him, he served an address he was on notice was not the current address for Charles or his mother, a fact that is uncontradicted. We also recognize that the motion judge may not have realized the address discrepancy because a different judge ruled on the plaintiff's motion to appear pro se. In these circumstances, it was error to grant the motion to dismiss.
Charles subsequently represented to the motion judge that he did not receive the motion to dismiss served to him in Tewksbury; this statement was never contradicted.
Conclusion. We vacate the judgment dismissing the plaintiff's claims against defendant Linda C. Consaul entered on August 4, 2017, and the order denying the plaintiff's motion for reconsideration entered on March 7, 2018. We remand the matter to the Superior Court for further proceedings consistent with this memorandum and order.
So ordered.
vacated and remanded