Opinion
16-P-760
03-24-2017
Dana WEGRYZN & others v. Rosemarie A. COHEN, individually and as trustee.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order denying her motion for relief from a judgment of dismissal entered more than four and one-half years earlier by the Superior Court. Discerning no abuse of discretion, we affirm.
Background . In a dispute concerning the terms of a family trust and partnership, the defendant was the plaintiff in a counterclaim filed September 18, 2006, and amended one month later. In essence, the counterclaim sought payment of a note secured by a mortgage granted to the plaintiffs by the trust, of which the defendant was trustee. The litigation apparently lay dormant, save for a series of status reviews and pretrial conferences, until a final pretrial conference was scheduled for May 10, 2011. The docket indicates that on May 5, 2011, plaintiffs' counsel telephoned the court to report that the case had been settled; that day, the court entered an order for entry of dismissal nisi, and instructed the parties to file an agreement for judgment or stipulation of dismissal by June 6, 2011. As no such agreement or stipulation was filed, on June 13, 2011 the court entered a judgment of dismissal for failure to comply with the nisi order.
For convenience we reference the parties by their original posture in the case, plaintiffs and defendant.
Nearly five years later, on January 29, 2016, the defendant moved to vacate the dismissal under Mass.R.Civ.P. 60(b)(6), 365 Mass. 829 (1974). In support of her motion, she filed an affidavit averring, among other things, that the plaintiffs "walked out" of mediation in 2011; that her attorney attempted to convince her to sign a settlement agreement, which she refused; and that her counsel and plaintiffs' counsel nevertheless reported the case settled. The defendant also asserted that she discharged her attorney at some point prior to January, 2012, and when he returned to her his file, he informed her of neither the nisi order nor the subsequent dismissal. As an explanation for her delay in filing the rule 60(b)(6) motion, the defendant offers that her attempts to retain a lawyer to "foreclose on the lien" were unsuccessful, and she was further delayed by her husband's sudden death. When she finally did retain an attorney in 2015, he advised her that her claim was "probably barred by the statute of limitations" and thus the only remedy available to her was to reopen this case to attempt to collect on the allegedly delinquent note.
On April 4, 2016, a judge denied the defendant's motion, concluding that "the facts alleged by defendant document considerable unreasonable delay on her part which make it unfair and unjust to vacate dismissal so many years after the relevant events and dismissal." The defendant now appeals.
Discussion . Rule 60(b) authorizes relief from a final judgment in certain circumstances, but a motion seeking such relief must be brought within a reasonable time. Parrell v. Keenan , 389 Mass. 809, 814-815 (1983). Subsection (6), a catchall provision meant to allow for relief for a reason not covered by subsections (1)-(5), is reserved for "extraordinary circumstances," Bromfield v. Commonwealth , 400 Mass. 254, 257 (1987), and a judge's discretionary action on such a motion "will not be reversed on appeal save for abuse." Parrell , 389 Mass. at 815, quoting from Clarke v. Burkle , 570 F.2d 824, 830 (8th Cir. 1978). The determination of what constitutes a reasonable time in the context of a rule 60(b)(6) motion is "addressed solely to the judge's discretion." Chavoor v. Lewis , 383 Mass. 801, 805 n.4 (1981). "In determining whether a motion was filed within a reasonable time, a judge may consider the reasons for delay; the ability of the movant to learn of the grounds earlier; prejudice to the parties, if any; and the important interest of finality." Owens v. Mukendi , 448 Mass. 66, 74 (2006).
Our consideration of these factors supports the judge's conclusion that the defendant's delay was unreasonable. The defendant states her original belief that she could always collect on the loan by foreclosing on the mortgage, only to be informed later that such a step would be barred, as of five years after the loan maturity date, by the obsolete mortgage statute, G. L. c. 260, § 33. She claims that the lawyers with whom she consulted prior to obtaining her current attorney did not identify this problem. However, she presents no affidavits from any attorney, past or present, and insufficient other information, to support these contentions.
A judge ruling on a rule 60(b)(6) motion may consider whether the moving party has a meritorious claim or defense. See Parrell , 389 Mass. at 815. Nevertheless, because the note is not included in the record before us, and we have not been pointed to anything in the mortgage stating its term or maturity date, we have no basis to evaluate the merits of the defendant's claim for enforcement of the note or of her argument that she has no remedy under the mortgage. See Mass.R.A.P. 16(e), as amended, 378 Mass. 940 (1979) ("No statement of a fact of the case shall be made in any part of the brief without an appropriate and accurate record reference").
Neither does she offer any evidence of her knowledge (or lack thereof) of the telephone call reporting to the court that the case had settled. Her own affidavit, in fact, raises more questions than it answers regarding the diligence of her efforts to ascertain the status of this case or to separately press her claim. The affidavit avers that, sometime before she discharged her attorney, that attorney participated in informing the court that the case was settled, but she does not explain how or when she obtained that information. She offers no affidavit from her former attorney explaining any of the relevant circumstances, nor does she offer any explanation of why such an affidavit is unavailable. Compare Chavoor , 383 Mass. at 802 (motion supported by affidavit from counsel alleging lack of notice of judgment of dismissal). Also, although the reasons she sets forth as explanation for the delay occurred after the entry of the June, 2011, dismissal, we note that she had ample opportunity to explore her avenues for relief on the mortgage claim during the years between filing her counterclaim in 2006 and the final pretrial conference in 2011, but she does not now claim that she attempted to do so.
The defendant argues on appeal that she was "entitled to a hearing to present the rationale for the motion and to address any objections to revival of the litigation." Nowhere in her motion papers, however, did she request a hearing.
Considerations of prejudice to the plaintiffs and the interests of finality also weigh in favor of affirmance. The counterclaim concerned events occurring between 1997 and 2003. The docket suggests that the plaintiffs could reasonably have believed that the matter was resolved in 2011. The judge could reasonably have considered the likelihood that memories have faded and evidence has become unavailable, as well as "the important interest of finality," Owens , 448 Mass. at 74, in the dismissal of a case thought to have been resolved more than four and one-half years earlier. There was no abuse of discretion in the denial of the motion.
The record before us does not include any indication that the plaintiffs were served with the rule 60(b)(6) motion. The defendant has informed us that the plaintiffs are no longer represented by counsel and so were served directly with her brief on appeal. They have not filed any brief(s) in response.
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Order denying motion for relief from judgment affirmed .