Opinion
15-P-889
04-19-2016
ROBERT MARTIN v. DAVID FOSU.
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
The defendant, David Fosu, appeals from an order of the Superior Court allowing plaintiff Robert Martin's motion for relief from a final judgment that dismissed his claim pursuant to Mass.R.Civ.P. 33(a)(6), as appearing in 454 Mass. 1404 (2009), for failing to answer interrogatories. Fosu initially pursued interlocutory review to a single justice of this court, who referred the matter to a panel for full appellate review. On appeal, Fosu claims that the judge erroneously granted Martin relief pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). We affirm.
Rule 60(b) allows a judge to "relieve a party or his legal representative from a final judgment, order, or proceeding." Specifically, a judge may grant relief for "(1) mistake, inadvertence, surprise, or excusable neglect" or "(6) any other reason justifying relief from the operation of the judgment." Fosu maintains that because Martin "strategically refused" to respond to interrogatories that named a nonparty as the recipient, he is ineligible for relief under any subsection of rule 60(b). We disagree.
The motion judge here did not specify under which section of rule 60(b) he based his decision. Both Fosu and Martin, however, considered rule 60(b)(1) or (6) as the possible applicable sections. We agree, and accordingly evaluate the motion and appeal under rule 60(b)(6). See Honer v. Wisniewski, 48 Mass. App. Ct. 291, 294 (1999) ("Failure to classify the appropriate section of rule 60(b) in a motion for relief of judgment is not fatal. Courts may determine whether and under what section relief might be granted").
"A motion under [r]ule 60 is addressed to the judge's discretion." Schulz v. Black, 369 Mass. 958, 958 (1975). Although rule 60(b)(6) generally requires "extraordinary circumstances," and its application is "meager in scope," the rule aims to "accomplish substantial justice" and "preserve the delicate balance between the sanctity of final judgments . . . and the incessant command of the court's conscience that justice be done in the light of all the facts." Freitas v. Freitas, 26 Mass. App. Ct. 196, 198 (1988) (emphasis original). Here, the judge was well within his discretion to vacate the rule 33(a)(6) dismissal of Martin's complaint under rule 60(b)(6). Rather than deprive Martin of his day in court, the judge appropriately considered the rule's objective and granted Martin's motion, noting that the "discovery dispute" should not be "taking any more time" in the court. See Parrell v. Keenan, 389 Mass. 809, 815 (1983). Moreover, relief under 60(b) eased any preclusive effect or prejudice Martin suffered or would have suffered from the harsh sanction of the rule 33(a)(6) dismissal. See Ticchi v. Ambassador Cab, Inc., 11 Mass. App. Ct. 912 (1981) (reversing denial of 60(b) motion following Rule 33(a) dismissal for failure to answer interrogatories). As the judge may construe rule 60(b)(6) liberally, there was no abuse of discretion. See Freitas, supra at 198.
Although relief under rule 60(b)(6) is limited to instances where the vacated judgment is justified by a reason not stated within rule 60(b)(1) through (5), the judge here could have considered whether Martin's failure to respond to the interrogatories constituted excusable neglect or a valid mistake under rule 60(b)(1) separate and apart from his evaluation and discretion to determine what action may be necessary to "accomplish justice" under rule 60(b)(6). See Parrell, supra at 814-815. Because the judge properly granted the motion under rule 60(b)(6), we need not consider whether Martin was eligible for relief under rule 60(b)(1).
Claiming Fosu's appeal is frivolous, Martin also maintains he is entitled to attorney's fees and double costs pursuant to Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). We disagree. Although we affirm the judgment, "[u]npersuasive arguments do not necessarily render an appeal frivolous." Avery v. Steele, 414 Mass. 450, 455 (1993). Whether an appeal warrants such sanctions is left to our discretion; such sanctions are generally disfavored except in the most egregious cases. Avery, supra at 455-456. Because Fosu presented a question that a single justice deemed "worthy of appellate consideration," his appeal does not justify awarding single or double attorney fees and costs. Hodge v. Klug, 33 Mass. App. Ct. 746, 758 (1992).
Order allowing plaintiff's rule 60(b) motion affirmed.
By the Court (Vuono, Meade & Carhart JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 19, 2016.