Opinion
11-P-938
02-10-2012
LAURENCE W. GRANT v. MASSACHUSETTS BAY TRANSPORT AUTHORITY.
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 defendant, having obtained a judgment in its favor, appeals from an order entered by a different judge of the Superior Court (motion judge) setting aside that judgment under Mass.R.Civ.P. 60(b)(6), 365 Mass. 828 (1974). As we agree with the defendant's contention that the motion judge erred when she did not apply Mass.R.Civ.P. 60(b)(1), 365 Mass. 828 (1974), and its one-year time limits to the facts of this case, we reverse.
Background. The plaintiff, Laurence W. Grant, was an employee of the defendant, Massachusetts Bay Transportation Authority (MBTA), from 1997 until 2004, at which time he was fired as a result of an altercation with another employee. In 2005, Grant commenced this action under G. L. c. 149, § 185, claiming that he was discharged in retaliation for raising concerns about the safety of a new line of motorcars and not, as the MBTA alleged, because of the incident with the other employee. Grant's complaint was dismissed on July 3, 2007, upon the MBTA's motion for judgment on the pleadings. Three years later, having obtained new counsel, Grant filed a motion to vacate the judgment of dismissal pursuant to rule 60(b)(6). In an affidavit submitted in support of his motion, Grant alleged a high degree of negligence on the part of his former counsel, who failed to oppose MBTA's motion for judgment on the pleadings and misled Grant as to the merits of his case. Grant's motion was allowed over the MBTA's opposition, the motion judge providing no findings or other statements of reasons for the action. The MBTA filed a petition for interlocutory relief, see G. L. c. 231, § 118, par. 1, and a single justice of this court granted leave for the MBTA to appeal from the order vacating the judgment of dismissal.
The motion judge endorsed Grant's motion as follows: 'After hearing, Allowed.'
Discussion. The basis of Grant's motion to vacate the judgment of dismissal was the gross negligence and inexcusable conduct of his former attorney. These grounds do not fall within the 'extremely narrow and meager scope' of relief under rule 60(b)(6). Tibbitts v. Wisniewski, 27 Mass. App. Ct. 729, 732 (1989). Our cases hold that where a party seeks relief on the grounds that prior counsel was negligent, the authority to grant relief is derived from subsection (1), and such relief is not available if sought after one year from the judgment in question. See Kennedy v. Beth Israel Deaconess Med. Center, 73 Mass. App. Ct. 459, 467 (2009). Moreover, it has been firmly established that a party may resort to subsection (6) only when he seeks relief for a reason other than those enumerated in subsections (1) through (5). See Parrell v. Keenan, 389 Mass. 809, 814-815 (1983). Accordingly, we reverse the order allowing the motion to vacate the judgment of dismissal, and reinstate the judgment of dismissal dated July 3, 2007.
Given our conclusion we need not address the MBTA's alternate arguments that even if the motion judge properly applied subsection (6), she abused her discretion because Grant failed to show he had a meritorious claim and failed to file the motion to vacate judgment within a reasonable time.
--------
So ordered.
By the Court (Green, Vuono & Milkey, JJ.),