Opinion
14-P-1756
10-22-2015
MAUREEN A. MAESTRANZI v. MICHAEL J. O'BRIEN & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
This is an interlocutory appeal, permitted by a single justice of this court, from the allowance of MassHealth's motion to intervene in support of a Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), motion filed by the estate of Michael J. O'Brien. The plaintiff argues that MassHealth lacks standing and statutory authority to intervene, and that the Superior Court judge abused his discretion by permitting MassHealth to intervene. As we conclude that MassHealth has both standing and statutory authority to intervene and has at least satisfied the requirements to intervene permissively, we affirm.
To the extent the single justice appeared to grant leave to take an interlocutory appeal from the "allowance" of a motion to substitute the personal representative of O'Brien's estate, there was no basis for doing so. On the fuller record provided to the panel, it appears that the motion to substitute has yet to be formally acted on in the trial court, despite the appearance of the estate as a party and the court's continuing treatment of the estate as a party. Accordingly, there is nothing for us to review in this regard and we will dismiss, as premature, so much of the interlocutory appeal as concerns that motion. We note, however, that the trial court judge retains authority to act on the plaintiff's timely filed motion to substitute, which has been held in abeyance. See Mass.R.Civ.P. 25(a)(1), 365 Mass. 771 (1974). Such action should be taken expeditiously to avoid any claim the court lacks authority to rule on the pending rule 60(b) motion. See Barnes v. Barnes, 291 Mass. 383, 385 (1935); Turner v. Minasian, 358 Mass. 425, 427 (1970).
On appeal, the plaintiff makes numerous arguments concerning the viability of the pending rule 60(b) motion. As this appeal is limited by the single justice's order regarding intervention and, as the Superior Court judge has yet to decide the rule 60(b) motion, we need not address, nor do we express any opinion on, those arguments. We note, however, that the Superior Court judge has authority to consider the rule 60(b)(4) motion despite the lengthy period of time since the judgment entered. See Bowers v. Board of Appeals of Marshfield, 16 Mass. App. Ct. 29, 31 (1983) ("Notwithstanding the powerful interest in finality of judgments, a motion for relief from a judgment which was void from its inception lies without limitation of time"). See also I.S.H. v. M.D.B., 83 Mass. App. Ct. 553, 557-558 (2013) (same [citation omitted]).
In 2011, O'Brien died testate with only one significant potential asset: his one-half interest in real property, as tenant in common with his sister, plaintiff Maureen A. Maestranzi. As relevant here, two claims were made against the estate: a 2003 levied default judgment obtained by the cotenant (the plaintiff), and MassHealth's claim pursuant to G. L. c. 118E, §§ 31 & 32, to recover funds spent on O'Brien's care. The estate has insufficient assets to satisfy both claims. A Probate and Family Court judge ultimately determined that the plaintiff's claim on her levied judgment had priority over MassHealth's claim. MassHealth has not appealed from that ruling.
Meanwhile, on March 24, 2014, the estate filed a motion in the Superior Court to vacate the 2003 default judgment pursuant to Mass.R.Civ.P. 60(b)(4) (void judgment). MassHealth moved to intervene in the Superior Court action, seeking to join the estate's motion. After a hearing, a Superior Court judge allowed MassHealth's motion to intervene, without prejudice, pending the ongoing proceedings in the Probate and Family Court as to the priority of the claims, and stayed the Superior Court proceedings. After the Probate and Family Court summary judgment establishing the priority of the parties' claims, the Superior Court judge vacated the stay and scheduled the rule 60(b) motion for an evidentiary hearing. The plaintiff sought a further ruling on MassHealth's motion to intervene; the Superior Court judge indicated at a hearing on the matter that he was allowing MassHealth to intervene, and subsequently denied the plaintiff's motion to reconsider that ruling. The plaintiff then filed the petition to the single justice which resulted in this appeal.
To the extent the plaintiff tried to appeal from the order denying reconsideration, that order is not before us. Compare Carvalho v. Commonwealth, 460 Mass. 1014, 1014 (2011).
Because the motion to intervene sought intervention both permissively and as of right and it is unclear on which basis the motion was allowed, we first review whether intervention was permitted under the less onerous standard of permissive intervention. We review an order allowing a motion to intervene permissively for "clear abuse of discretion." Massachusetts Fedn. of Teachers, AFT, AFL-CIO v. School Comm. of Chelsea, 409 Mass. 203, 209 (1991). Permissive intervention "is wholly discretionary with the trial court," ibid. (citation omitted), and intervention may be permitted when the proposed intervener's "claim or defense and the main action have a question of law or fact in common," ibid., quoting from Mass.R.Civ.P. 24(b)(2), 365 Mass. 769 (1974). Where, as in this case, postjudgment intervention is sought, a proposed intervener must show, in addition to the usual criteria for intervention, that its failure to intervene at an earlier stage of the proceedings was justified and that "it has not just an interest, but a compelling one, in the litigation." Bolden v. O'Connor Café of Worcester, Inc., 50 Mass. App. Ct. 56, 61 (2000). See Cruz Mgmt. Co. v. Thomas, 417 Mass. 782, 785 (1994).
Here, there was no clear abuse of discretion by the Superior Court judge permitting MassHealth to intervene permissively. MassHealth's claim seeking to vacate a judgment attaching the only significant asset of the estate raises the same questions of law and fact raised by the estate in its attempts to vacate that same judgment. MassHealth has a compelling interest in recouping public money spent on O'Brien's care, which can only be satisfied if the asset under levy is returned to the estate. Moreover, MassHealth's failure to intervene at an earlier stage of the proceeding is justified as it had no cognizable interest in the litigation until O'Brien died with insufficient assets to satisfy MassHealth's claim.
As we conclude there was no error in permitting MassHealth to intervene permissively, we need not address whether MassHealth was entitled to intervene as of right.
The plaintiff also challenges MassHealth's statutory authority to pursue this claim outside the probate estate action. The argument is premised on the limitation of MassHealth's ability to recover payments to "assets includable in the decedent's probate estate." G. L. c. 118E, § 31(c), as appearing in St. 2004, c. 149, § 167. She argues that because the probate judge has ruled that the asset is not includable in the estate given its status as a levied judgment, MassHealth lacks statutory authority to pursue it. This argument ignores the procedural back-and-forth between the two courts which resulted in the Probate and Family Court judge resolving the issue of priority before the Superior Court judge would consider the rule 60(b) motion. Once the probate judge determined that the plaintiff's claim had priority, the issue whether the claim is valid or void must be resolved to determine whether the levied property is includable within the estate's assets.
The plaintiff also argues that MassHealth should not have standing to intervene because MassHealth successfully opposed her motion to intervene in the Probate and Family Court. The argument boils down to an assertion that such a result is unfair, with no citation to any legal authority. We need not consider it. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
The plaintiff's brief remaining arguments, that intervention is not permitted in the context of a postjudgment matter because there is no "pending action," that intervention is not permitted when there is only one party left in the action, that the motion is not timely, and that MassHealth cannot intervene without filing its own separate pleading (rather than joining the estate's motion), are not supported by any authority or reasoned argument. Accordingly, we need not consider them. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
This argument presumes a lack of substitution by the estate. However, a motion to substitute remains pending in the Superior Court and presumably will be acted upon promptly after the stay occasioned by this interlocutory appeal is lifted. See note 2, supra.
Order allowing motion to intervene affirmed.
So much of the interlocutory appeal as concerns the motion to substitute is dismissed.
By the Court (Kafker, C.J., Trainor & Massing, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 22, 2015.