Opinion
11-P-162
03-22-2012
GRACE LIU v. GORDON W. SPENCER.
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, Grace Liu, appeals from a Superior Court judge's denial of two motions to reconsider his allowance of the motion of defendant Gordon W. Spencer pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), for dismissal of her complaint. For the following reasons, we affirm his denials of her motions for reconsideration.
Background. The material facts are undisputed. In prior litigation, Attorney Spencer had represented Grace Liu in a claim of discrimination against a former employer. The parties went to mediation. At the conclusion of a substantial mediation session, they signed a mediation agreement by which Grace Liu accepted payment of $42,000 'with deductions and withholdings for FICA and taxes.' The net amount forwarded to Liu by the former employer came to $26,167. Liu was dissatisfied with the net amount and refused to cash the check. These events transpired in 2007.
On July 7, 2010, Liu commenced the present action against Spencer in Superior Court. She alleged that he had not represented her properly in the mediation and had not explained the terms of the settlement accurately to her. She alleged causes of action for professional negligence and breach of contract. The following procedural sequence ensued over the next several months.
On August 19, 2010, Spencer filed a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6). By affidavit he reported that he had complied with Superior Court Rule 9A (2009), by serving a copy of the motion on Liu on or about July 28, and that he had waited vainly for the required period of thirteen days for her opposition. On August 23, a judge of the Superior Court (motion judge) allowed the motion. He observed that no opposition had arisen. Judgment of dismissal entered on August 25.
On September 2, Liu filed a motion to vacate the judgment. On October 16, the judge denied the motion. In effect, he treated it as a motion pursuant to Mass.R.Civ.P. 60(b)(1), 365 Mass. 828 (1974). In particular, he assessed the potential merits of the complaint and concluded that on its face and with exhibits it showed (I) that Liu had signed the settlement agreement explicitly announcing the deduction of FICA and taxes from the $42,000, (ii) that she was not alleging undue influence or duress on the part of her attorney, and (iii) that she had failed to connect any other alleged losses or injury to the conduct of her attorney. Most significantly, at no time thereafter did Liu file a notice of appeal in accordance with Mass.R.A.P. 4(a), as amended, 430 Mass. 1603 (1999), either from the judgment of dismissal entered on August 25 or from the denial of the motion to vacate entered on October 16.
This analysis followed the pattern set out for motions for relief from judgment under rule 60(b)(1) in Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 430-431, 433 (1979).
Liu did submit the following motions. On November 8, pursuant to Superior Court Rule 9D (2004), she filed a motion to reconsider the allowance of the dismissal. On November 10, the judge denied the motion with the observation that it presented no new factual or legal material for his consideration. On November 23, the plaintiff filed an additional motion for reconsideration of (I) the denial of the earlier motion to vacate judgment and (ii) the denial of her first motion to reconsider the allowance of dismissal. The judge denied the second motion for reconsideration without comment on November 26.
On December 10, Liu filed a notice of appeal specifically and exclusively from (I) the denial of the first motion for reconsideration, and (ii) the denial of the second motion for reconsideration.
Analysis. Liu argues, in effect, that the judge wrongly denied both motions for reconsideration and that proper allowance of those motions for reconsideration would preserve her appeal from the judgment of dismissal. Two procedural standards govern the case.
First, decisional law has settled the rule that a motion for reconsideration filed after the expiration of the thirty-day period set by Mass.R.A.P. 4(a) for submission of a notice of appeal cannot substitute for the required notice of appeal from the underlying judgment and cannot preserve the entitlement to an appeal from that judgment. See Muir v. Hall, 37 Mass. App. Ct. 38, 41 (1994); Diedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184, 188 (1995); Pielech v. Massasoit Greyhound, Inc., 47 Mass. App. Ct. 322, 327 (1999). Those cases explain that a motion for reconsideration submitted beyond the ten-day period set by Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974), to alter or amend the judgment and beyond the thirty-day period set by Mass.R.A.P. 4(a) will have the character of a motion for relief from judgment authorized by Mass.R.Civ.P. 60(b). Motions for relief under rule 60(b) do not alter the thirty-day deadline set by Mass.R.A.P. 4(a). That rule cannot 'be used as a substitute for the regular appeal procedure.' Muir v. Hall, supra.
If Liu's appeal from the judgment is not preserved, the remaining lesser question is whether she is entitled to reconsideration by the motion judge of her argument against dismissal and against the denial to vacate that dismissal. A party moving for reconsideration under Superior Court Rule 9D (2004), must show a change of fact or law, or a clear error of fact or law, in support of eligibility for reconsideration. Peterson v. Hopson, 306 Mass. 597, 600 (1940). Barbosa v. Hopper Feeds, Inc., 404 Mass. 610, 622 (1989). See King v. Globe Newspaper Co., 400 Mass. 705, 707 (1987), cert. denied, 485 U.S. 940 (1988). Courts will apply these standards strictly. No duty exists to reconsider an issue of fact or law, once decided. Otherwise a party could move endlessly for reconsideration upon the basis of materials available but not submitted at the time of original consideration. Phoenix Home Life Mut. Ins. Co. v. Brown, 49 Mass. App. Ct. 657, 661 (2000). Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 810 (2002).
As the judge noted in his denial of the first motion for reconsideration, the plaintiff had submitted no information of a change of law or circumstance since his explanatory denial (on October 16) of the earlier motion to vacate judgment of dismissal. The judge showed in that earlier ruling that he had examined carefully the full content of her complaint and its substantial exhibits. His denial of both motions for reconsideration constituted a sound exercise of discretion under the governing standards.
Orders denying motions for reconsideration affirmed.
By the Court (Rapoza, C.J., Grainger & Sikora, JJ.),