Opinion
11-P-377
03-07-2012
BEVERLY FALLON, trustee, v. TOWN OF SOUTHBOROUGH.
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
Fallon, as trustee of the MGR Realty Trust, appeals from the dismissal of her complaint by a Superior Court judge. The complaint was dismissed when Fallon failed to either oppose the motion to dismiss or respond when the motion was submitted as unopposed. Despite the motion judge's clarification that the motion was allowed on procedural grounds because Fallon failed to oppose it, Fallon asserts, incorrectly, that the motion was denied on the merits and continues to argue only the merits of her complaint.
Fallon and her husband were in a dispute with the town over their tax liability for the years 1999, 2000, and 2003 centering primarily around the town's failure to give them the benefit of a veteran's exemption under G. L. c. 59, § 5. The dispute culminated in the town's Land Court petition to foreclose on the outstanding tax liability. Fallon raised as a defense her entitlement to the veteran's exemption. Fallon paid the disputed amount ($16,809.78), and then filed this action in the Superior Court, pursuant to G. L. c. 60, § 98, seeking to recover the tax paid.
On November 22, 2010, pursuant to Rule 9A of the Rules of the Superior Court (2009), the town served a motion to dismiss the complaint on Fallon, both by mail and by facsimile transmission. The motion sought dismissal on several grounds, including the pendency of the Land Court action where the issue was raised as a defense. Fallon does not dispute that she received the motion. However, instead of responding to the motion by serving her opposition on the town within ten days as required by Rule 9A(b)(2), Fallon sought clarification from the Land Court concerning which court had jurisdiction over her claim. Having not received a response from Fallon to its motion to dismiss, the town filed its motion as unopposed, as permitted under the rule. It served a copy of the package filed with the court, including its 'Affidavit of Compliance with Rule 9A and Receipt of No Opposition,' on Fallon on December 8, 2010. Again Fallon failed to respond. On January 3, 2011, the motion was indorsed: 'Allowed -- no opposition.' Judgment entered to that effect on January 11, 2011.
Rule 9A(b)(2) provides in pertinent part:
'If the moving party does not receive an opposition within 3 business days after expiration of the time permitted for service of an opposition, then the moving party shall file with the clerk the motion and other documents initially served on the other parties with an affidavit reciting compliance with this rule and receipt of no opposition in timely fashion.'
On January 28, 2011, Fallon filed a rule 60(b) motion, see Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), essentially stating that she was unaware that a hearing date had been set, or that the motion to dismiss could be acted on without a hearing, and that she was waiting for a decision by the Land Court on the jurisdictional issue. The motion was indorsed: 'No action taken since there is no proof of compliance with Sup. Court Rule 9A.' On February 4, 2011, Fallon filed an 'Emergency Motion for Clarification,' which the Superior Court judge allowed. He then issued a memorandum of decision on the motion, which recounted the above-described procedural history and ruled:
'The clarification is as follows: the defendant served a dispositive motion on the plaintiff; the plaintiff, having been notified of the motion, chose or neglected to oppose it; the defendant served a notice that it was filing the motion and further, informed the Court that no opposition had been received; and finally, the plaintiff chose, or neglected, a second time, to oppose the motion. Now, about a month after dismissal, the plaintiff seeks to know what happened.
'The plaintiff's motion for clarification is ALLOWED; this clarification responds to the plaintiff's motion; and the original Order of Dismissal stands.'
On appeal, Fallon ignores the procedural basis upon which her complaint was dismissed and attacks the merits of the motion. Indeed, her brief asserts that in response to her motion for clarification, the Superior Court judge 'maintained that the dismissal was proper based upon the pending action in the Land Court.' The statement is incorrect given the judge's very clear 'clarification.' In short, Fallon's brief is irrelevant to the issue on appeal. Having failed to even address the basis for the judge's decision in her brief, she has waived any applicable argument, see Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), and the judgment can be affirmed on that basis alone.
Furthermore, having failed to file an opposition to the motion to dismiss in the trial court, Fallon can be deemed to have waived all substantive arguments on appeal. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) ('An issue not raised or argued below may not be argued for the first time on appeal').
Finally, even were we to address, sua sponte, the merits of the judge's decision, we would conclude that the allowance of the motion on the ground that it was unopposed was not an abuse of discretion, compare Teamsters Local Union No. 404 v. Secretary of Admn. & Fin., 434 Mass. 651, 660-661 (2001), in light of Fallon's repeated failure to respond to the motion, or to seek leave to extend the time to file an opposition, or, once judgment had entered on the basis of her failure to oppose, to seek relief under rule 60(b) on that basis.
Fallon's rule 60(b) motion, which itself was not accepted by the trial court because of noncompliance with Rule 9A, does not mention Rule 9A; it asserts that she did not respond because she was not aware that a hearing date on the motion to dismiss had been set.
Judgment affirmed.
By the Court (Katzmann, Vuono & Meade, JJ.)