Opinion
21-P-15
12-10-2021
Joel DELUCA, individually and as personal representative, v. 60 SALEM TURNPIKE LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, 60 Salem Turnpike LLC (LLC), appeals from orders of a Superior Court judge (1) denying the LLC's motion to vacate a default judgment and (2) lifting a stay of execution on that judgment. Concluding that the judge acted within her discretion in determining that the LLC failed to show either a misrepresentation by the plaintiff or a mistake by the LLC warranting relief, we affirm the order denying the LLC's motion to vacate the judgment. Further discerning no error in the judge's order lifting the stay of execution, we affirm that order as well.
1. Motion to vacate the judgment for mistake. "Rule 60 (b) (1) [of the Massachusetts Rules of Civil Procedure, 365 Mass. 828 (1974),] permits a judge ... to relieve a party from the effect of an otherwise final judgment for reasons of ‘mistake, inadvertence, surprise, or excusable neglect.’ " Johnny's Oil Co. v. Eldayha, 82 Mass. App. Ct. 705, 708 (2012), quoting Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 429 (1979). A judge considers the familiar factors provided in Berube, supra at 430-431. A judge has "considerable discretion in ruling on [a] motion for relief under rule 60 (b) (1)." Hermanson v. Szafarowicz, 457 Mass. 39, 47 (2010).
The complaint here was served on the LLC's resident agent. Although the LLC asserted in the Superior Court that Gary DeCicco was not informed of the lawsuit by the resident agent, that assertion is conspicuously absent from DeCicco's affidavit, and the "judge was not bound to accept the defendant's self-serving statement." Hermanson, 457 Mass. at 47. In short, the LLC has provided no credible evidence that its failure to answer the lawsuit was in any way excusable. Accordingly, the judge acted within her discretion in allowing the judgment to stand. See Dilanian v. Dilanian, 94 Mass. App. Ct. 505, 516 (2018) (no abuse of discretion where omission was caused by party's own negligence).
DeCicco signed the contract and is apparently the manager of the LLC. He was named in the complaint, but the parties dismissed all claims against him by agreement.
2. Motion to vacate the judgment for misrepresentation. "Relief may be granted under [Mass. R. Civ. P.] 60 (b) (3) if there has been fraud, misrepresentation, or other misconduct of an adverse party." Owens v. Mukendi, 448 Mass. 66, 73 (2006). "[T]he moving party has the burden of proving by clear and convincing evidence that the alleged fraud or misrepresentation exists and that [the party] is entitled to relief." Adoption of Yvonne, 99 Mass. App. Ct. 574, 583 n.15 (2021), quoting Reporter's Notes to Rule 60, Mass. Ann. Laws Court Rules, Rules of Civil Procedure, at 1244 (LexisNexis 2020). The moving party must also show "reliance on the false statement by the [moving party] to the [moving party's] detriment." Franzosa v. Franzosa, 98 Mass. App. Ct. 179, 182 (2020), quoting Zimmerman v. Kent, 31 Mass. App. Ct. 72, 77 (1991). We review for an abuse of discretion. See Wojcicki v. Caragher, 447 Mass. 200, 209 (2006).
The judge acted within her discretion in concluding that the LLC did not meet this standard. The plaintiff provided the court with the December 2010 contract, the authenticity of which is uncontested. The plaintiff's affidavit stated that the operating agreement provided to the court was a draft created in December 2010, that he was "unable to locate an original or copy of an executed Operating Agreement," and that DeCicco likely had possession of the executed agreement. The LLC has not produced any evidence that these statements were false, much less that the LLC relied on these statements to its detriment. See Cahaly v. Benistar Prop. Exch. Trust Co., 451 Mass. 343, 367 n.51 (2008). Accordingly, the judge acted with her discretion in denying the LLC's motion.
3. Lifting of the stay. The LLC's argument that its own operating agreement controls over the law regarding the execution of judgments is unsupported by logic or any citation to legal authority. See 468 Consulting Group, LLC v. Agritech, Inc., 99 Mass. App. Ct. 758, 767 n.15 (2021) (argument made "without citation to legal authority" is waived). In any event, the operating agreement provides three different "Events" resulting in dissolution: (a) the sale of all or substantially all of the LLC's assets; (b) a written election by the manager and members of the LLC; (c) the "consolidation or merger of the LLC with or into any entity in which the LLC is not the resulting or surviving entity." The agreement does not join these events with "and," nor is it reasonable to read the agreement as barring dissolution of the LLC unless all three of these events occur. See Norfolk & Dedham Mut. Fire Ins. Co. v. Norton, 100 Mass. App. Ct. 476, 478 (2021), quoting Massachusetts Prop. Ins. Underwriting Ass'n v. Wynn, 60 Mass. App. Ct. 824, 827 (2004) (contract is to be construed "in a reasonable and practical way, consistent with its language, background, and purpose"). Accordingly, we discern no error in the judge's order lifting the stay of execution.
The plaintiff's request for attorney's fees is denied. "Although the ... appeal is unsuccessful, it is not frivolous." Perry v. Zoning Bd. of Appeals of Hull, 100 Mass. App. Ct. 19, 25 n.10 (2021), quoting Filbey v. Carr, 98 Mass. App. Ct. 455, 462 n.10 (2020).
Orders entered May 6, 2020, denying motion to vacate default judgment and lifting stay of execution, affirmed.