Opinion
22-P-390
11-17-2022
STACY NORRELL [1] v. SPRING VALLEY COUNTRY CLUB, INC., & others.[2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
After the judgment had been affirmed, see Norrell v. Spring Valley Country Club, Inc., 98 Mass.App.Ct. 57 (2020), and denial of the plaintiffs' application for further appellate review had entered, see Norrell v. Spring Valley Country Club, Inc., 486 Mass. 1108 (2020), the plaintiffs moved unsuccessfully in the Superior Court for postjudgment relief, and this appeal followed. We discern no abuse of discretion or error of law in the denial of the plaintiffs' motion, and affirm.
As a threshold matter, we observe that the basis on which the plaintiffs seek relief is not available to them under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). In essence, the plaintiffs contend that the decision of the Supreme Judicial Court in Hovagimian v. Concert Blue Hill, LLC, 488 Mass. 237 (2021), demonstrates that the trial judge (and this court on appeal) decided certain questions of law incorrectly. Such a claim falls within the ambit of Mass. R. Civ. P. 60 (b) (5), which authorizes relief if "the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application." However, the Reporter's Notes to that rule explicitly state that the rule "does not authorize relief from a judgment on the ground that the law applied by the court in making its adjudication has been subsequently overruled or declared erroneous in another and unrelated proceeding."
To the extent that the plaintiffs instead seek relief under the general provisions of Rule 60(b)(6), we are skeptical that despite the exclusion of such cases from the broad category described in rule 60(b)(5) as reflected in the Reporter's Notes, relief may be obtained on the same theory under subsection 6 of the same rule because "it is no longer equitable that the judgment should have prospective application."
We also observe that Norrell, 98 Mass.App.Ct. 57 (2020) and Hovagimian were heard by the same panel of this court on the same day, and that the Supreme Judicial Court considered applications for further appellate review in both cases and issued orders on the same day, allowing further review in Hovagimian and denying review in this case. Moreover, the Court specifically cited with approval this court's opinion in Norrell to illustrate contrast with its reasoning in Hovagimian. See 488 Mass. at 242. In addition, to the extent that the plaintiffs seek again to press a claim "that the inclusion of the word 'charge' in the statutory language means the safe harbor provision should not be limited to those documents that have been identified as a 'bill, invoice or charge,' but, rather, also should be applied to the entirety of the documents that make up the transaction between the employer and the patron," Id. at 246 n.11, we note that the Hovagimian Court rather explicitly rejected the claim. See id.
The plaintiffs' request for attorney's fees and costs is denied as they did not prevail on the motion that gave rise to this appeal.
Order dated January 19, 2022, denying motion for reconsideration affirmed.
Green, C.J., Vuono & Brennan, JJ.
The panelists are listed in order of seniority.