Opinion
21-P-72
01-12-2023
RICHARD D. BOSTWICK v. EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES & others. [1]
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a May 6, 2021, order of the Superior Court denying his April 30, 2021, motion to "vacate, modify and set aside" a March 2, 2011, judgment under Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), and Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). He claims that the judge erred in determining that he was time barred from bringing his motion, because the judge failed to consider the effect on the case of an automatic stay in bankruptcy.
The plaintiff previously filed a motion to vacate the judgment on March 14, 2011, and the motion was denied by order entered on March 21, 2011. A notice of the motion at issue on appeal was filed on March 29, 2021 (pursuant to Rule 9E of the Superior Court [2020]), and after opposition was received, the Superior Court Rule 9A packet was filed on April 30, 2021.
The judge denied the defendant's motion because it sought to reopen a judgment that was more than ten years old. The plaintiff's motion under rule 59 (e) was required to be brought within ten days of the judgment. See Mass. R. Civ. P. 59 (e). See also Stephens v. Global NAPs, 70 Mass.App.Ct. 676, 682 (2007) (rule 59 [e] motions filed after ten-day deadline will be considered under rule 60 [b]). The defendant fared no better under rule 60 (b), which only allows a motion to be brought more than one year after judgment if the judgment is void, satisfied, or for some other reason not specified in Mass. R. Civ. P. 60 (b) (1) (excusable neglect), (2) (newly discovered evidence), or (3) (fraud). See Mass. R. Civ. P. 60 (b). See also Owens v. Mukendi, 448 Mass. 66, 71-72 (2006). Even then, the motion must be brought within a reasonable time. See Mass. R. Civ. P. 60 (b).
Here, the plaintiff's motion was premised on the theory that the March 2, 2011, judgment is void because, at the time it issued, there was an automatic stay of the proceedings due to a defendant, The Classic Group, Inc., having filed for bankruptcy. "The filing of a voluntary bankruptcy petition operates as an automatic stay of 'the commencement or continuation . . . of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the [bankruptcy] case.'" Beverly v. Bass River Golf Mgt., Inc., 92 Mass.App.Ct. 595, 599 (2018), quoting 11 U.S.C. § 362 (a) (1) (2012) .
The Superior Court's March 2, 2011, judgment, however, did not commence or continue an action against a debtor in bankruptcy. Rather, the judgment terminated a suit against a debtor; thus, the automatic stay did not prohibit the court's action. See Amonte v. Amonte, 17 Mass.App.Ct. 621, 623-624 (1984) (purpose of automatic stay is to relieve debtors of collection proceedings which would nullify Bankruptcy Code's obj ective) .
Additionally, since the plaintiff filed his motion more than ten years after a judgment of which he was aware, it was well within the judge's discretion to determine that the motion was not filed within a reasonable time. See Owens, 448 Mass. at 74-77 (three-year delay unreasonable where party was aware of facts giving rise to motion to vacate at time of judgment).
That the plaintiff was aware of the judgment at the time is evidenced by his earlier motion to vacate filed within the month of entry of judgment.
Order entered May 6, 2021, denying motion to vacate, affirmed.
The panelists are listed in order of seniority.