Opinion
13-P-1728
12-16-2014
STEVEN SURABIAN & another v. DEUTSCHE BANK TRUST COMPANY AMERICAS, trustee.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal pro se from the denial, by a judge of the Superior Court, of their motion for relief from judgment filed under the provisions of Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974) (rule 60[b]). The plaintiffs contend that the judge improperly denied their rule 60(b) motion because: (i) the defendant's summary judgment motion was filed after the motion deadline; (ii) the defendant did not timely answer their complaint; (iii) the judge did not allow the plaintiffs to cross-examine themselves; (iv) the closing attorney committed perjury; (v) the judge erroneously concluded that the plaintiffs committed perjury; and (vi) the judge improperly declined to recuse himself.
While the plaintiffs also purport to appeal from the allowance of summary judgment and other rulings, the only timely appeal is that from the denial of their rule 60(b) motion. The plaintiffs timely appealed from the summary judgment that had entered on December 2, 2011, but their appeal was later dismissed, see Superior Court docket entry on January 9, 2013, for failure to prosecute under this court's Standing Order 17A. See Appeals Court docket entry on December 20, 2012, in Surabian v. Deutsche Bank Trust Company Americas, docket no. 12-P-1650. Following that dismissal, the plaintiffs filed, on August 23, 2013, their rule 60(b) motion in the Superior Court, asking that the summary judgment be vacated because: (i) the judge presumed that the plaintiffs had committed perjury and the fact that the district attorney declined to pursue charges against them demonstrated that they had testified truthfully and (ii) the judge declined to recuse himself from the case. The judge denied the motion. The plaintiffs noticed a timely appeal.
"A motion for relief under rule 60(b) [ ] is directed to the sound discretion of the motion judge, and we review the judge's ruling for abuse of discretion." Nortek, Inc. v. Liberty Mut. Ins. Co., 65 Mass. App. Ct. 764, 775 (2006). Rather than argue their claims pursuant to one or more of the subsections of rule 60(b), however, the plaintiffs argue here, as they did below, that the judge erred in failing to reconsider various rulings, including on summary judgment, that either had been or could have been brought in their first appeal. However, rule 60 does not provide "for general reconsideration of an order or a judgment, or an avenue for challenging alleged legal errors that are readily correctable on appeal." Amerada Hess Corp. v. Garabedian, 416 Mass. 149, 156 (1993). See Jones v. Boykan, 464 Mass. 285, 291 (2013) ("Rule 60 is not a substitute for the normal appellate process" [citation omitted]). While we recognize that it is within the inherent authority of a trial judge to "reconsider decisions made on the road to final judgment," Franchi v. Stella, 42 Mass. App. Ct. 251, 258 (1997), that "power to reconsider a case, an issue, or a question of fact or law, once decided, remains vested in the court until a final judgment or decree is entered," Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 401 (2003). Thus, while the traditional bases for relief from judgment remained open under rule 60, since final judgment here entered prior to the plaintiffs' motion, the judge was powerless to reconsider any prior ruling.
Rule 60(b) states: "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken."
Because the plaintiffs' assertions in connection with the denial of their motion under rule 60 fail to rise to the level of acceptable appellate advocacy, based upon our long-standing rule of appellate procedure, we need not consider them. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Carter v. Empire Mut. Ins. Co., 6 Mass. App. Ct. 114, 122 n.8 (1978). Nonetheless, we conclude, following our review of the motion record, that the present appeal is meritless, having discerned no abuse of discretion in the judge's denial of the plaintiffs' motion under rule 60(b).
The plaintiffs' argument here, as concerns the denial of their rule 60 motion, states: "The [plaintiffs'] timely filed motion under Rule 60 for Reconsideration of Order allowing . . . [summary judgment] motion by [defendant] to Dismiss the [plaintiffs'] Complaint since the [plaintiffs] did not Commit perjury, then there were issues in dispute greater than the Continental Div[ide] and the [defendant] was not entitled to Summary Judg[]ment as this was a Jury Demand Complaint."
The defendant has requested appellate attorney's fees and costs in its brief. As we conclude that this appeal is frivolous, see Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979); Avery v. Steele, 414 Mass. 450, 455-456 (1993), we grant the defendant's request. In accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the defendant shall, within fourteen days of the date of the rescript, file with this court and serve on the plaintiffs a motion for determination of its appellate attorney's fees and costs, supported by an affidavit detailing such fees and costs. The plaintiffs may, within fourteen days thereafter, file with this court and serve on the defendant any opposition.
Order denying rule 60 motion affirmed.
By the Court (Cypher, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 16, 2014.