Opinion
11-P-29
11-07-2011
LAW OFFICE OF ALFRED PAUL FARESE, JR. v. RICHARD FLORAMO & others.
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 plaintiff law office of Alfred Paul Farese, Jr. (Farese), challenges three motions that District Court judges granted in favor of the defendants: (1) the June 17, 2008, motion to vacate default judgments against defendants Richard Floramo, Jr., and Christa Floramo, Mass.R.Civ.P. 60(b)(1), 365 Mass. 828 (1974); (2) the June 8, 2009, motion to vacate default judgment against defendant Grace Floramo, Mass.R.Civ.P. 60(b)(1) or 60(b)(6); and (3) the January 12, 2010, motion for a directed verdict in favor of all three defendants.
Grace moved to vacate the default under rule 60(b)(1). During the motion hearing, Farese argued that the judge had no authority to remove the default under rule 60(b)(1) because Grace filed the motion after the one-year limitations period. In response, Grace's attorney cited Chavoor v. Lewis, 383 Mass. 801, 803-804 (1981), and argued that the judge had discretion to consider the motion under rule 60(b)(6). The judge endorsed the motion as 'allowed,' without further explanation. In their briefs, the parties have raised both rules 60(b)(1) and 60(b)(6) as potential bases for the decision, and we consider both.
Farese has failed to provide a copy of the decision of the Appellate Division of the District Court. In addition, the docket sheet included in the appendix is incomplete as it terminates prior to any entry concerning an appeal. See Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997) (appendix 'shall contain' relevant docket entries and 'the judgment, order, or decision in question'). Although, arguably, we could dismiss the appeal on this basis, we have the discretion to overlook the omission, and do so in this case. See Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 810-812 (1992); Chokel v. Genzyme Corp., 449 Mass. 272, 279-280 (2007). The defendants do not raise any issue regarding the record omissions. We infer that the Appellate Division summarily affirmed the judgment and, accordingly, we address the substantive arguments raised in the appeal.
Background. Farese met with Richard Floramo, Sr., who sought legal representation for his wife Grace, his son Richard, Jr., and Richard, Jr.'s wife, Christa. The defendants had been defaulted in a dispute with a contractor, and Farese agreed to attempt to remove the defaults and defend the case. Farese and Richard, Sr., negotiated an oral agreement, but did not execute a written fee agreement. Farese was successful as to the defaults and then tried the case to conclusion, resulting in a victory for the defendants. The defendants failed to pay the balance of Farese's charges, and he commenced the present action.
Farese's complaint is brief, alleging only that the defendants hired him with knowledge of his fee schedule, and that he performed the legal services requested. All three defendants defaulted, and judgments entered on October 12, 2007, against each defendant for $3,000, plus interest and costs.
On June 17, 2008, new counsel appeared on behalf of Richard, Jr., and Christa, and filed motions under Mass.R.Civ.P. 60(b)(1) to remove the default judgments against them, alleging that Richard, Jr., and Christa never were served. Richard and Christa alleged that their home was under construction when the complaint was taped to the garage, and that numerous workers had been in and out of the garage area. The same judge who had ordered judgment to enter also allowed the motion, and the case proceeded through discovery in which all three defendants, including Grace, participated. Shortly before the scheduled trial date, Farese informed defendants' counsel that a default judgment also had entered against Grace. On June 8, 2009, defendants' counsel filed a rule 60(b)(1) motion to remove the default against Grace. A second judge allowed the motion, although there is no written order or transcript in the record describing the basis for that decision. It is unclear whether the court ruled on the basis of rule 60(b)(1) or rule 60(b)(6).
Neither judge made findings of fact regarding the sufficiency of service upon the defendants when allowing the motions to vacate the defaults. As to Richard, Jr., and Christa, we rely on the parties' briefing and the transcript and appendix to identify facts the first judge could have relied upon within his discretion to remove their defaults. As to Grace, the only issue on appeal is whether the second judge could have granted the motion outside the time limit of rule 60(b)(1). The disputed facts regarding adequacy of service to Grace are immaterial.
See note 3, supra.
The trial judge (yet a third judge) ultimately granted the defendants' motion for a directed verdict following a jury-waived trial, finding that any agreement existed solely between Farese and Richard, Sr., and that the three defendants had no legal agreement with Farese. The third judge also ruled that Farese could not recover based on a theory of quantum meruit because he failed to include such a count in his complaint.
Discussion. 1. Richard, Jr.'s, and Christa's default. 'A motion to vacate judgment under rule 60(b)(1), is properly addressed to the sound discretion of the trial judge . . . . [A] judge's decision will not be overturned, except upon a showing of a clear abuse of discretion.' McIsaac v. Cedergren, 54 Mass. App. Ct. 607, 609 (2002). Here, Farese has failed to show that the first judge abused his discretion. The motion was filed within the one-year limitations period of rule 60(b)(1). We assume the judge found credible the defendants' claims that they never received notice due to the method of service and the high traffic around their garage. Although the judge did not address the six-factor test for rule 60(b)(1) motions laid out in Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 430-431 (1979), a 60(b)(1) inquiry is fact intensive and case specific, and the judge's decision was within his discretion. See McIsaac, supra.
2. Directed verdict. 'A motion for directed verdict is properly granted only where the evidence construed most favorably to the plaintiff is insufficient to support a verdict in his favor.' Power Serv. Supply, Inc. v. E. W. Wiggins Airways, Inc., 9 Mass. App. Ct. 122, 127 (1980), citing DiMarzo v. S. & P. Realty Corp., 364 Mass. 510, 514 (1974). Farese's complaint failed to allege a count of quantum meruit, and only barely alleged a breach of contract. All the evidence showed that Farese's agreement was with Richard, Sr., and the judge properly found no evidence suggesting an agency relationship in this matter between Richard, Sr., and any of the named defendants. The judge correctly ordered a directed verdict in favor of the defendants.
3. Grace's default. Grace cannot obtain relief under rule 60(b)(1) because her motion was filed eighteen months after the default judgment was entered. Although the second judge could have considered her motion under rule 60(b)(6), Chavoor v. Lewis, 383 Mass. 801, 803-804 (1981), Grace has not offered sufficient grounds for relief under rule 60(b)(6).
A removal of default under rule 60(b)(6) is appropriate only where 'vacating [the] judgment is justified by some reason other than those stated in subdivisions (1) through (5) . . . that presents extraordinary circumstances.' Owens v. Mukendi, 448 Mass. 66, 71 (2006) (internal quotations and citations omitted). Although the judge did not include his grounds for vacating the default, Grace only advanced two arguments.
First, she claims that she did not receive timely service of process, and that she never received notice of the default. Even accepting these statements as true, her counsel should have been alerted to her default when he moved to remove the defaults against Richard, Jr., and Christa, because the complaint named all three as defendants. Counsel's failure to do so presents a classic case of 'mistake, inadvertence, surprise, or excusable neglect,' grounds for relief under rule 60(b)(1). Mass.R.Civ.P. 60(b)(1). See Scannell v. Ed. Ferreirinha & Irmao, LDA, 401 Mass. 155, 158 (1987). See also Tai v. Boston, 45 Mass. App. Ct. 220, 222-223 (1998). Because Grace's first argument falls within the bounds of rule 60(b)(1), she cannot obtain relief under rule 60(b)(6).
Second, Grace advanced a laches defense, arguing that Farese purposefully kept secret his possession of the default judgment until one year had passed, while treating Grace as an active participant in the case, all to prevent her from discovering the default. Even accepting these statements as true, Grace merely has alleged 'fraud . . ., misrepresentation, or other misconduct of an adverse party,' which presents grounds for removal of default under rule 60(b)(3). Mass.R.Civ.P. 60(b)(3). See Owens, 448 Mass. at 73. Therefore she cannot obtain relief under rule 60(b)(6). Id. at 73 n.9. Rule 60(b)(3) also contains the same one-year time limit as rule 60(b)(1), so she is not entitled to relief under rule 60(b)(3) either. Ibid. The second judge, therefore, erred in allowing Grace's motion to remove default.
So much of the decision and order of the Appellate Division affirming the judgment that dismissed claims against Grace Floramo is modified to provide that the judgment dismissing all claims against Grace is reversed, the order removing default against Grace is reversed, and the judgment by default entered on October 12, 2007, in the amount of $3,000 plus interest and costs is reinstated as to Grace. The remainder of the decision and order of the Appellate Division affirming the judgment of dismissal as to claims against Richard Floramo, Jr., and Christa Floramo is affirmed.
So ordered.
By the Court (Mills, Smith & Wolohojian, JJ.),