Opinion
10-P-1779
11-01-2011
INDEPENDENCE SEAPORT MUSEUM v. JOHN CARTER.
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 appeals from an order denying his late filed motion to vacate a judgment that had been previously affirmed by a panel of this court. In an unpublished decision, (Independence Seaport Museum v. Carter, 76 Mass. App. Ct. 1125 [2010]), we affirmed the allowance of summary judgment for the plaintiff for numerous failures by the defendant to comply with the rules of appellate procedure, and for his failure 'to present below any affidavits or other materials to contradict the factual assertions of the plaintiff.' Ibid. The defendant seeks to relitigate issues that were considered and rejected by the trial judge and this court. Because the defendant's motion is untimely and his case is not strengthened by his unsubstantiated allegations of fraud and other forms of misconduct, we affirm the order denying the defendant's motion to vacate judgment.
Discussion. A final judgment in favor of the plaintiff was entered by in the Superior Court on December 23, 2008, awarding it $2,392,942.70 plus interest from January 22, 2007. On December 28, 2009, more than one year after the entry of judgment and while the direct appeal referred to above was pending, the defendant filed, pro se, a 'Complaint pursuant to [Mass.R.Civ.P. 60(b)(3), 365 Mass. 828-829 (1974)] To Vacate Judgment for Fraud, Misrepresentation or other Misconduct of an Adverse Party' (motion to vacate judgment). Despite his allegations of fraud and misrepresentation, the defendant did not offer any affidavits or new evidence in support of his motion. Rule 60(b)(3) requires that a motion to vacate a judgment due to fraud must be filed within one year of the entry of the judgment. See Owens v. Mukendi, 448 Mass. 66, 74 (2006). Therefore, the motion is late. Moreover, apart from the fact that the issues the defendant seeks to raise could have been raised in his direct appeal, the law is settled that regardless of the allegations made by a party, fraud will not be presumed. See Pina v. McGill Dev. Corp., 388 Mass. 159, 165 (1983). Upon a consideration of the entire record, it is abundantly clear that the lower court did not abuse its discretion in denying the defendant's motion to vacate judgment. Id. at 166.
Mass.R.Civ.P. 60(b) provides, in part, as follows: '[o]n 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 (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; . . . . The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken. . . .'
Finally, the plaintiff seeks appellate attorney's fees and double costs under Mass.R.A.P. 25, 376 Mass. 949 (1979). For the reasons set forth in the brief of the plaintiff at 22-24, the request is allowed. This appeal consists entirely of a frivolous repetition of unsubstantiated allegations of fraud and misrepresentation that were leveled against the plaintiff in the lower court and repeated by the defendant in his earlier, unsuccessful appeal. The plaintiff's request for appellate attorney's fees and double costs is allowed. The plaintiff shall, within fourteen days of the date of the rescript in this case, file and serve a petition for attorney's fees incurred on appeal, supported by an affidavit detailing such fees in accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The plaintiff will have fourteen days thereafter to respond.
So ordered.
By the Court (Rapoza, C.J., Cohen & Agnes, JJ.),