Opinion
16-P-541
04-21-2017
INSPECTIONAL SERVICES OF LAWRENCE v. Paul Frank PATTI & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Background. This case has a lengthy history which began with criminal complaints by the inspectional services department of the city of Lawrence against Paul Frank Patti, the owner of 803-805 Essex Street in Lawrence (the property). Avatar Properties was appointed receiver of the property pursuant to G. L. c. 111, § 127I. Adrian Moylette and Kristy Moylette purchased the property and intervened, seeking to dissolve the receivership, and demanding a full accounting and an assessment of fees and costs. A different panel of this court, in a memorandum and order pursuant to rule 1:28, affirmed the order denying the interveners' request to sue the receiver and vacated the receiver's attachment issued in the Housing Court. See Inspectional Servs. Dept. of Lawrence v. Patti, 86 Mass. App. Ct. 1102 (2014). Thereafter, the receiver filed a motion to modify the underlying judgment, seeking authority to disburse escrowed funds and to amend the account to include postjudgment fees. A judge of the Housing Court allowed an amendment to the judgment to include postjudgment litigation fees and ordered the escrowed funds to be applied to unpaid charges. He denied the receiver's request for appellate counsel fees. The interveners filed a motion for clarification and findings of fact and rulings of law. The interveners appealed.
The record is silent as to the action taken, if any, on the motion for clarification and findings of fact and rulings of law. The interveners do not address the motion on appeal. Accordingly any claim as to that motion is waived.
Discussion. The interveners claim that the receiver's motion, filed pursuant to Mass.R.Civ.P. 60(b)(6), 365 Mass. 828 (1974), was untimely as it was not filed within one year of the judgment. " Rule 60 sets forth a comprehensive framework for obtaining relief from a final judgment or order, balancing the competing needs for finality and flexibility to be certain that justice is done in light of all the facts." Sahin v. Sahin, 435 Mass. 396, 399-400 (2001). Subsection (b)(6) of the rule is a catch-all provision, applicable when subsections (b)(1) through (b)(5) do not apply, that allows relief from judgment for "any other reason justifying relief from the operation of the judgment." See Parrell v. Keenan, 389 Mass. 809, 814 (1983) ; Freitas v. Freitas, 26 Mass. App. Ct. 196, 197 (1988). Rule 60(b)(6) has an "extremely meagre scope" and requires the showing of "compelling or extraordinary circumstances." Winthrop Corp. v. Lowenthal, 29 Mass. App. Ct. 180, 188 (1990) (quotation omitted). Extraordinary circumstances may include evidence of actual fraud, a genuine lack of consent, or a newly-emergent material issue. See Thibbitts v. Crowley, 405 Mass. 222, 226-228 (1989). A judge's ruling on a rule 60(b)(6) motion "will not be reversed on appeal in the absence of an abuse of discretion." Rezendes v. Rezendes, 46 Mass. App. Ct. 438, 441 (1999). Here, the interveners took a position with respect to the final administration of the receivership that forced the receiver to seek court intervention and instructions. In the unique circumstances of this case, rule 60(b)(6) was the appropriate vehicle to do so. The judge did not abuse his discretion in allowing the receiver's motion which served, under the specific factual and procedural posture of this case, as an appropriate mechanism to finalize the receivership.
By way of example, after the 2014 panel held that the interveners had no interest in the escrowed funds, counsel for the interveners instructed the escrow agent not to release the funds to the receiver. The interveners claimed they were entitled to the funds. This forced the escrow agent to hold the funds until she received a court order with instructions.
To the extent that we do not address other arguments, they "have not been overlooked. We find nothing in them that requires discussion." Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Appellate attorney's fees. The receiver seeks appellate attorney's fees pursuant to G. L. c. 111, § 127I ; G. L. c. 211A, § 15 ; and Mass.R.A.P. 25, 365 Mass. 771 (1974). The receiver is entitled to these fees. One of the exceptions to the American rule regarding attorney's fees is when an award is in accordance with specific statutes or rules of court. Yorke Mgmt. v. Castro, 406 Mass. 17, 18 (1989). In cases where the statute at issue specifically provides for the payment of attorney's fees, and does not limit the award to trial fees, our courts have held that such provisions necessarily include the right to appellate attorney's fees. Id. at 19. Within fourteen days of the date of the rescript, the receiver may file with the clerk of the Appeals Court, for the consideration of this panel, appropriate documentation supporting the request for appellate attorney's fees and costs, as discussed in Fabre v. Walton, 441 Mass. 9, 10–11 (2004). The interveners, in turn, may file a written opposition to that request within fourteen days thereafter. Ibid.
We deny the interveners' request for appellate attorney's fees.
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Order allowing motion for relief from judgment affirmed.