Opinion
No. 15–P–383.
08-23-2016
FEDERAL NATIONAL MORTGAGE ASSOCIATION v. Matthew GRIFFIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant (tenant) appeals from a Worcester Housing Court default judgment, that awarded possession of the subject premises to the plaintiff (Fannie Mae) and assessed damages in the amount of $8,216.50, and an order denying his motion to remove the default judgment. The adequacy of the service of the summons and complaint is the principal issue in this appeal. We affirm.
Background. The tenant had rights in a portion of one unit in a condominium in Worcester under a written lease with the former owner that established rent at $300 per month beginning on October 1, 2009, and expiring on September 30, 2010. The property was foreclosed upon in December, 2009, and Fannie Mae thereafter obtained title. On May 15, 2013, Fannie Mae was granted a court order requiring the tenant to pay $800 per month in rent beginning on June 1, 2013. In April, 2014, Fannie Mae served the tenant with a ninety-day notice to quit for nonpayment of rent beginning in November, 2013.
On July 21, 2014, a constable attempted to serve the tenant with a summary process summons and complaint. That notice advised the tenant that a trial would be held on August 7, 2014. The trial was continued after Fannie Mae requested discovery. The tenant was served with Fannie Mae's discovery requests, which included a copy of the summons and complaint. On August 21, 2014, both parties appeared in court; the tenant was accompanied by a “representative” who requested a further continuance due to the tenant's medical emergency. Fannie Mae's counsel agreed to a two-week continuance provided that a letter was received from the tenant's doctor. Counsel received such a letter that day in court and the matter was continued by agreement of the parties until September 4, 2014. However, the tenant did not appear on that scheduled date, and a default judgment issued on September 5, 2014. Fannie Mae was awarded possession of the premises and the tenant was assessed damages including fees and costs.
The constable stated, under pains and penalties of perjury, that he served the tenant by leaving a copy of the summons and complaint at his last and usual place of abode, and by mailing him a copy by first class mail. The tenant claims that nothing was posted at his residence, and that he received by mail only a copy of a summons and complaint for a completely unrelated case. Fannie Mae admits that the constable erroneously mailed an unrelated summons and complaint to the tenant. It submitted to the lower court a supplemental affidavit from the constable reasserting that he made service by leaving a copy of the summons and complaint at the tenant's last and usual place of abode.
The tenant, acting pro se, moved to remove the default on September 14, 2014. He asserted that he was improperly served, had been too sick to appear on the day of trial, and that the default judgment should be removed for those reasons. After hearing, the motion was denied.
The tenant's pro se motion requested relief under “either” Mass.R.Civ.P. 59, 365 Mass. 827 (1974), or 60, 365 Mass. 828 (1974), and then more specifically under rule 60(b)(6). His arguments regarding improper service implicate rule 60(b)(4). See Farley v. Sprague, 374 Mass. 419, 423, 425 (1978) (judgment vacated for want of jurisdiction due to insufficiency of service). Both parties' appellate briefs treat the motion to remove the default as a motion under rule 60(b).
The tenant then filed a document labeled motion, stating that he was appealing that order. A different judge held a hearing, at which the tenant was present. That judge ruled that Uniform Summary Process Rule 12 afforded no right of appeal from a default judgment in a summary process action, and that the only relief available would be a petition to a single justice of this court. The tenant petitioned this court for interlocutory relief and a single justice determined that the tenant's appeal from an order denying his rule 60(b) motion would be to a panel of this court and not to a single justice. See Cullen Enterprises, Inc. v. Massachusetts Property Ins. Underwriting Assn., 399 Mass. 886, 894 (1987), quoting from Chu– Kun Woon v. Moy, 17 Mass.App.Ct. 949, 949 (1983) (“Resolution of a rule 60(b) motion rests in the discretion of the trial judge, and we ‘will show marked deference to the lower court's resolution of such a motion’ “; an order denying a rule 60(b) motion will be set aside only on clear showing of abuse of discretion).
Discussion. “A motion for relief under rule 60(b) is directed to the sound discretion of the motion judge, and we review the judge's ruling for abuse of discretion.” Nortek, Inc. v. Liberty Mut. Ins. Co., 65 Mass.App.Ct. 764, 775 (2006). To obtain relief, “a party must show both a good reason to remove the default and also the existence of meritorious claims or defenses.” Clamp–All Corp. v. Foresta, 53 Mass.App.Ct. 795, 806 (2002). The tenant here has set forth neither.
a. Service of process. The tenant argues that he was not served with the summons and complaint in accordance with Uniform Summary Process Rule 2(b), and thus the Housing Court lacked jurisdiction over him. He denies ever having received the summons and complaint that the constable stated under oath he served at the tenant's last and usual place of abode on July 21, 2014. Asserting that he had no knowledge of the case until it was entered on July 28, 2014, the tenant claims that the constable fabricated his return of service, sworn under pains and penalties of perjury. Relying on Johnson v. Witkowski, 30 Mass.App.Ct. 697, 714 (1991), he argues that the affidavit is only prima facie evidence of service. He cites Farley v. Sprague, 374 Mass. 419 (1978), for the proposition that he is entitled to relief based on an “uncontroverted” affidavit rebutting the evidence of service.
He also argued in his rule 60(b) motion that his medical circumstances, which he asserts prevented him from appearing on September 4, 2014, constituted excusable neglect. He has not renewed that argument on appeal.
Even though the tenant's affidavit is not uncontroverted and, unlike Konan v. Carroll, 37 Mass.App.Ct. 225, 229 (1994), the constable's supplemental affidavit stated with specificity his efforts to accomplish service, there is an alternative basis for the result we reach.
Fannie Mae also argues on appeal that even if service were insufficient, the tenant's general appearance on the first day of trial demonstrates that he had actual notice of the proceedings. See Wang v. Niakaros, 67 Mass.App.Ct. 166, 171 (2006) (suggesting that “actual knowledge and continued participation in the litigation” by defendant could excuse plaintiff from specific compliance with Mass.R.Civ.P. 4, as amended, 402 Mass. 1401 [1988] ). We agree. Whether a party had actual notice prior to the default is a matter to be considered in deciding whether to grant a motion for relief from judgment. See Massey v. Cloutier, 26 Mass.App.Ct. 1003, 1003 (1988). In his affidavit in support of his rule 60(b) motion, the tenant admitted that he received actual notice of the proceedings when he was served with Fannie Mae's discovery requests. In any event, he appeared on the scheduled date of trial and requested, and was granted, a continuance. He had the opportunity to be heard on the next scheduled date, but did not appear. Although we must accept as true the tenant's assertion that he did not receive the notice allegedly posted at his abode, we must also accept as true his admission that he received the summons and complaint included with Fannie Mae's discovery requests. See Farley, supra at 423–424. There was no abuse of discretion in denying the motion to remove the default judgment.
This case and others involving rule 4 are distinguishable from cases involving insufficiency of statutorily required process. See, e.g., Reynolds v. Remick, 327 Mass. 465, 469–471 (1951) (proper service required by former G.L. c. 206, § 24).
b. Meritorious claims or defenses. Even if service were indeed defective, the tenant's 60(b) motion must fail in the absence of a meritorious, appealable issue. He does not attempt to set forth any such issue, nor did he do so in the court below. The tenant does not assert that he has complied with the May 15, 2013, court order ordering him to pay $800 per month in rent. He cannot, therefore, claim that he was entitled to prevail in the underlying summary process action. See Mede v. Colbert, 342 Mass. 166, 169 (1961) (court may not dispense with requirement of showing that movant had meritorious case).
Judgment affirmed.
Order denying motion to remove default judgment affirmed.