Opinion
20-P-496
06-17-2021
FEDERAL HOME LOAN MORTGAGE CORPORATION v. Marjorie Y. EVANS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The appellant, Marjorie Evans, was the defendant in a postforeclosure summary process action brought by the plaintiff Federal Home Loan Mortgage Corporation (Freddie Mac). See Evans v. Federal Home Loan Mtge. Corp., 481 Mass. 1050 (2019). In connection with that action, Evans initiated a proceeding in 2016 in the single justice session of this court; that proceeding was resolved in early 2017. More than three years later, in 2020, Evans filed a motion seeking to reopen that proceeding. The single justice denied the motion. Evans then filed a motion for reconsideration, which the single justice also denied. Evans appealed. We conclude that no appeal from the first order is properly before us; as to the second order, seeing no abuse of discretion or other error of law, we affirm it.
Background. In 2016, Evans sought review by a single justice of this court of a Housing Court judge's order that Evans make use and occupancy payments while she had an appeal pending. The matter was treated as arising under G. L. c. 239, § 5, and on October 26, 2016, the single justice issued an order staying eviction proceedings and remanding the matter to the Housing Court for a use and occupancy hearing pursuant to G. L. c. 239, § 6. The Housing Court judge scheduled the hearing for November 2, 2016.
More precisely, the single justice issued two orders on that date, one of which merely referred to the other. For convenience we refer to them collectively as a single order.
On the date of the hearing, Evans, asserting that she had not received sufficient notice of the hearing, came to the Housing Court in person and filed two motions. The first motion sought to postpone the hearing on the grounds that, due to insufficient notice and her asserted disabilities, she was unable to appear that day; the motion cited the Americans with Disabilities Act. The second motion sought to postpone the hearing on the ground that Freddie Mac had not yet provided certain discovery responses. The second motion also sought a new trial based on newly discovered evidence, and it further sought to vacate the underlying summary process judgment in Freddie Mac's favor on the grounds that there was newly discovered evidence, that the judgment was void, and for "any other reason justifying relief."
She later asserted that she received such notice on November 1. 2016.
Evans did not remain at the courthouse for the hearing, however, and, at that hearing, the judge denied her two motions for lack of prosecution. Based on materials submitted by Freddie Mac, the judge then issued an order for use and occupancy payments.
On January 11, 2017, apparently due to Evans's failure to make those payments, see Evans, 481 Mass. at 1050, a Housing Court judge allowed Freddie Mac's motion to dismiss the pending appeal, and execution issued. On January 31, 2017, the single justice lifted the stay entered the preceding October and remanded the matter to the Housing Court, stating that "[t]his matter is now closed in this court." On May 4, 2017, Freddie Mac levied on its execution for possession of the property. See Evans, 482 Mass. at 1050.
On February 13, 2020 -- more than three years after the single justice's closure order -- Evans filed with the single justice a "Motion to Reopen Her Case for Clerical Mistake" (motion to reopen), based on Mass. R. Civ. P. 60, 365 Mass. 828 (1974) ( rule 60 ). The single justice denied the motion, ruling in essence that if Evans was aggrieved by the Housing Court judge's November 2, 2016 use and occupancy order, Evans was required to have filed a request for review of that order within the short time periods provided by G. L. c. 239, § 5 (g ), which had long since expired.
Evans then filed a motion for reconsideration, asserting that her motion to reopen was based not on her being aggrieved by the use and occupancy order itself, but instead on what she characterized as a clerical mistake under rule 60 (a) : the failure of the clerk of this court to serve her with the single justice's October 26, 2016 order directing the Housing Court to hold the use and occupancy hearing. Evans's argument appears to have been that the lack of service prejudiced her by both (1) shortening the time for her to prepare for the use and occupancy hearing and (2) contributing in some fashion to the judge's denial at that hearing of the two motions Evans had filed earlier that day. Based on the lack of service, Evans asserted that the single justice's October 26, 2016 order should itself be reconsidered or reopened.
The motion for reconsideration stated, "[Evans] is not appealing from a use and occupancy order -- rather she is seeking relief from the failure of the [c]lerk of this [c]ourt to serve her with the [single justice's] October 26, 2016 [order]."
The single justice denied the motion for reconsideration, ruling that Evans's "failure to receive service of this court's October 26, 2016, order is not a ground for reopening that order." The single justice further explained that, although the lack of service "may have required the continuation of the November 2, 2016, hearing in the Housing Court ... the propriety of [that] hearing is not properly before me." Evans then appealed from the single justice's orders denying the motion to reopen and the motion to reconsider.
Discussion. We begin by observing that Evans's appeal from the order denying her motion to reopen is not properly before us. That order was issued on February 21, 2020. Evans did not file a notice of appeal within the thirty-day period set forth in Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019), but instead filed a motion to reconsider on March 23, 2020, which was too late to extend the time for filing a notice of appeal. See Mass. R. A. P. 4 (a) (2), as appearing in 481 Mass. 1606 (2019). Only after the single justice denied the motion to reconsider did Evans file a notice of appeal, on March 31, 2020, more than thirty days after the order denying the motion to reopen. Thus, that notice of appeal brought before us only the order denying the motion to reconsider, which we affirm. Nevertheless, even if the order denying the motion to reopen were also before us, we would affirm it as well, as we now explain.
For the purposes of this appeal we accept Evans's assertion, which Freddie Mac does not challenge, that her two motions were governed by rule 60. We proceed to consider her arguments under each part of rule 60 that she claims to be applicable.
1. Rule 60 (a) . Rule 60 (a) provides in pertinent part that "[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party." However, "[r]ule 60 (a) merely seeks to ensure that the record of judgment reflects what actually took place." 1973 Reporters’ Notes to Rule 60, Mass. Ann. Laws Court Rules, Rules of Civil Procedure, at 1243 (LexisNexis 2020). See Gagnon v. Fontaine, 36 Mass. App. Ct. 393, 396 (1994) (same). Here, the paper copy of the single justice's October 26, 2016 order, as in the record before us, indicates that copies were sent to various attorneys and to the Housing Court, but does not indicate that a copy was sent to Evans. This accurately represents what Evans claims to have occurred -- that she was not served with the order. Thus, there was no clerical mistake requiring correction, and the single justice did not abuse his discretion or otherwise err in denying relief under rule 60 (a). See Gagnon, supra, at 400 n.7.
Evan's claim would fare no better if we were to consider it under rule 60 (b) (1) for "mistake, inadvertence, surprise, or excusable neglect," as a motion for relief on these grounds must be made no more than one year after the order has entered. See Mass. R. Civ. P. 60 (b).
2. Rule 60 (b) (2). Under rule 60 (b) (2), a court may relieve a party from a judgment, order, or proceeding based on newly discovered evidence. However, under the rule, "a motion for relief from judgment based on newly discovered evidence must be made within one year of final judgment." Poskus v. Lombardo's of Randolph, Inc., 48 Mass. App. Ct. 527, 527 (2000). Here, Evan's motion to reopen was filed with the single justice more than three years after the single justice had taken final action on her request for review of the Housing Court's use and occupancy order and had made clear that "[t]his matter is now closed in this court." Therefore, the single justice did not err in in denying relief under rule 60 (b) (2).
3. Rule 60 (b) (4). Under rule 60 (b) (4), a court must relieve a party from a judgment that is void. See 1973 Reporters’ Notes to Rule 60, Mass. Ann. Laws Court Rules, Rules of Civil Procedure, at 1245 (LexisNexis 2020). But neither Evans's motion to reopen nor her motion for reconsideration argued that the single justice's October 26, 2016 order was void. Although one of Evans's November 2, 2016 motions sought relief under rule 60 (b) (4) from the Housing Court judgment on the ground that that judgment was void, she did not appeal from the Housing Court judge's order denying that motion. Further, as the single justice noted in denying Evan's motion for reconsideration, the propriety of the November 2, 2016 Housing Court hearing was not before him. Therefore, the single justice did not err in in denying relief under rule 60 (b) (4).
4. Rule 60 (b) (6). Rule 60 (b) (6) is a catch-all provision, meant to allow for relief for a reason not covered by subsections (1)-(5) of rule 60 (b), and thus is reserved for extraordinary circumstances. Bromfield v. Commonwealth, 400 Mass. 254, 256-257 (1987). Importantly, "[r]ule 60 is not a substitute for the normal appellate process" (citation omitted). Jones v. Boykan, 464 Mass. 285, 291 (2013).
Here, Evans identifies no prejudice flowing from the single justice's October 26, 2016 order that could not have been remedied through the normal appellate process. First, insofar as that order led to the Housing Court judge's issuance of the use and occupancy order, Evans could have obtained review of the use and occupancy order either under G. L. c. 239, § 5 (g ), or by declining to make payments under it and suffering the consequent dismissal of her appeal, and then appealing from that dismissal. See Ford v. Braman, 30 Mass. App. Ct. 968, 969 (1991).
Because Evans did not seek review through either of these mechanisms, we need not decide which one would have been appropriate in the tangled circumstances of this case. It bears repeating that Evans insisted in her motion for reconsideration that she was "not appealing from a use and occupancy order." See supra note 3.
Second, insofar as the single justice's October 26, 2016 order contributed in some fashion to the Housing Court judge's orders denying the two motions Evans filed on November 2, 2016, Evans could have obtained review of those orders by directly appealing from them. See Evans, 481 Mass. at 1051 (direct appeal available for denial of motion to vacate void judgment and denial of motion for reasonable accommodation of disabilities). Because Evans bypassed these other means of obtaining appellate review, there were no extraordinary circumstances warranting relief under rule 60 (b) (6), and the single justice did not abuse his discretion in denying relief.
We see no reason why, under the principles outlined in Evans, 481 Mass. at 1051, Evans could not likewise have obtained appellate review through normal channels of the judge's orders insofar as they (1) denied her motion for a continuance based on lack of adequate notice and (2) denied her motion for a new trial and to vacate the judgment based on newly discovered evidence.
Conclusion. The order of the single justice denying Evans's motion to reconsider is affirmed.
Because, as explained supra, the order denying the motion to reopen is not before us, we take no action with respect to it.
So ordered.
affirmed