Opinion
13-P-1807
10-22-2014
ELIZABETH M. KUURI v. KIRSTI J. SALMI.
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 plaintiff, Elizabeth M. Kuuri, appeals from a judgment entered pursuant to Mass.R.Civ.P. 33(a), as appearing in 436 Mass. 1401 (2002) (rule 33[a]), dismissing her complaint against the defendant, Kirsti J. Salmi, for failure to respond to interrogatories, and from an order denying her motion to vacate that judgment.
On May 1, 2009, a motor vehicle driven by Salmi struck a motor vehicle driven by Kuuri at the intersection of McKinley and Ashton Streets in Worcester. Although at first suffering just minor numbness in her left leg, on May 5, 2009, Kuuri presented to the Fallon Clinic in Worcester with severe left shoulder pain. She has received treatment since then, and had surgery on the shoulder on May 13, 2013.
Kuuri's complaint is timely as to Salmi, though barely. On the face of her complaint, she claimed to have discovered her serious shoulder injury "on or around" May 5, 2009. The last day for commencement of the negligence action fell on a Saturday, so Kuuri had until the next business day, May 7, 2012, a Monday, to file in timely fashion, as she did. See Mahoney v. DeMatteo-Flatiron LLP, 66 Mass. App. Ct. 903, 904 (2006).
By complaint filed on May 7, 2012, Kuuri commenced the present action alleging motor vehicle negligence against Salmi. Salmi served interrogatories on Kuuri on November 30, 2012, and a final request for answers to interrogatories on April 10, 2013, with no response. On June 4, 2013, Salmi applied for entry of judgment under rule 33(a), supported by affidavit of her counsel. On June 6, 2013, judgment was entered for Salmi dismissing Kuuri's complaint, with notice being sent to counsel for Kuuri on the same date.
The complaint named Commerce Insurance Company (Commerce), as a party defendant, but did not articulate anything that Commerce did or failed to do. After hearing, a Superior Court judge allowed Commerce's motion to dismiss the complaint against it. No aspect of the judgment for Commerce is before the court on this appeal.
By letter dated December 12, 2012, counsel for Kuuri acknowledged receipt of Salmi's first set of interrogatories.
Salmi's application for entry of final judgment under rule 33(a) was served upon, and notice of entry of judgment was sent to, Kuuri's counsel at his office address of "340 Main Street, Suite 301, Worcester, MA 01608."
On June 25, 2013, Kuuri filed a motion to vacate the judgment for Salmi, supported by affidavit of counsel. Also on June 26, Kuuri purported to serve her answers to interrogatories on Salmi. On July 30, 2013, after a hearing, a Superior Court judge denied Kuuri's motion to vacate. On August 13, 2013, Kuuri filed a notice of appeal from the judgment and the order denying her motion to vacate.
Counsel's affidavit filed in support of this motion has not been reproduced. A later affidavit of counsel, dated November 4, 2013, and filed in support of a motion to stay, was not before the court when it ruled on the motion to vacate and we do not consider it.
Absent the certificate of service on the motion to vacate, it is impossible to ascertain whether it was served in timely fashion so as to qualify as a motion under Mass.R.Civ.P. 59, 365 Mass. 827 (1974), thus tolling the thirty-day appeal period. See Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013). We assume, in the absence of a contrary assertion by Salmi, that the motion was timely served under rule 59, thereby tolling the appeal period, to the end that the notice of appeal was timely as to both the judgment and the order denying the motion to vacate.
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The gist of Kuuri's motion to vacate (and her argument on appeal) is that "plaintiff['s] attorney states that he was not given notice and was not properly served with defendant's interrogatories. In further support please see plaintiff's attorney['s] attached affidavit." As a threshold matter, we observe that counsel has not reproduced the above-described affidavit in the record appendix; for that reason alone Kuuri has not established the basis for her argument. In any event, it was established below that Kuuri's counsel received the first set of interrogatories (see note 3, supra) and that Salmi's application for entry of final judgment under rule 33(a) was served upon, and notice of entry of judgment was sent to, Kuuri's counsel at his correct office address of "340 Main Street, Suite 301, Worcester, MA 01608" (see note 4, supra). The motion judge was not required to credit counsel's explanation (that some other mailings in the case had been sent to an incorrect address), particularly in light of the evidence before her that, as to the documents material to the issue before her, service was properly made and notice properly sent. In view of the foregoing, Kuuri has made no demonstrable showing of good cause, and thus we discern no abuse of discretion. See Piepul v. Bryson, 41 Mass. App. Ct. 932, 932-933 (1996). Compare Kalenderian v. Marden, 46 Mass. App. Ct. 930, 931 (1999) (abuse of discretion in allowing motion to vacate judgment for failure to comply with discovery, where no basis shown).
Judgment affirmed.
Order denying motion to vacate judgment affirmed.
By the Court (Green, Graham & Katzmann, JJ.),
Clerk Entered: October 22, 2014.