Opinion
14-P-1916
01-05-2016
CATHERINE FEROLI v. MICHAEL FEROLI & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal arises out of the denial of plaintiff Catherine Feroli's motion for relief from judgment, see Mass.R.Civ.P. 60(b)(3), 365 Mass. 828 (1974). The underlying cause of action is based on a slip and fall that the plaintiff encountered while at the home she shared with the defendants, Michael Feroli and Laurie Feroli. The defendants' motion to dismiss the complaint was granted because the defendants did not have notice of the lawsuit due to improper service of the complaint., Following the dismissal, the plaintiff filed a rule 60(b)(3) motion arguing that the defendants perpetrated a fraud on the court because they had notice of the lawsuit. Accompanying the motion were affidavits from Michael Graziano Sr., the father and father-in-law, respectively, of the defendants, and Michael Graziano Jr., indicating that upon Michael Sr.'s receipt of the summons, he gave it to Michael Jr., who then texted Laurie that they were being sued. Michaels Sr. and Jr. then dropped off the summons and complaint to Laurie. The plaintiff filed this appeal alleging the judge abused her discretion in denying the plaintiff's rule 60(b)(3) motion because she "require[ed] the defendant/appellee, Laurie Feroli, to admit to perjury in order to grant the requested relief."
The plaintiff served process not at the home shared by them, but at the home of her and Laurie's father. The plaintiff concedes in her brief that service of the complaint was improper because she knew the defendants continued to reside at the home the plaintiff shared with them.
We employ first names where necessary to promote clarity.
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). Rule 60(b)(3) provides in pertinent part, "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (3) fraud[,] . . . misrepresentation, or other misconduct of an adverse party." A fraud on the court occurs when "it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier [of fact] or unfairly hampering the presentation of the opposing party's claim or defense." Sahin v. Sahin, 435 Mass. 396, 405-406 (2001) (quotation omitted). In such a case, fraud on the court occurs when conduct rises "to the level of a deliberate and calculated plan to use the judicial system in an unconscionable and fraudulent manner." Pina v. McGill Dev. Corp., 388 Mass. 159, 168 (1983).
The judge did not abuse her discretion when she denied the plaintiff's rule 60(b) motion. The plaintiff's assertion that the judge "require[ed] the defendant/appellee, Laurie Feroli, to admit to perjury in order to grant the requested relief" is not supported by the judge's thoughtful and articulate decision. The judge denied the motion and noted that the plaintiff failed to call either her father or brother to testify. Furthermore, the plaintiff had offered no reason why this testimony was not presented at the hearing. The judge also commented that this was not a situation where the defendants had admitted to perjury, but rather had "alluded to the questionable veracity of the affidavits." Consequently, she placed "little weight in the affidavits," and ruled that "the plaintiff has not met her burden to show by clear and convincing evidence that fraud was perpetrated on the court such that it interfered with the court's ability to impartially adjudicate the matter." We discern no abuse of discretion by the judge.
Order denying motion for relief from judgment affirmed.
By the Court (Cypher, Trainor & Rubin, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 5, 2016.