Opinion
14-P-1789
06-11-2015
CHRISTOS G. PANTOS v. WAYNE H. ZAROZNY & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The plaintiff appeals from a decision of the Appellate Division of the District Court affirming order denying his motion seeking leave to docket his appeal late. The plaintiff also appeals from the dismissal of his complaint on the ground that the defendants had not been properly served, and the order denying his motion to extend time for service (both rulings affirmed by the Appellate Division). We do not reach the question whether the judge abused his discretion in denying the motion to extend the time for docketing the appeal because we conclude that there was no error in dismissing the complaint or in denying the motion to extend time for service.
The plaintiff alleges that he was injured when he fell through the floor of a deck located at 83 Brookline Street, Worcester, on June 2, 2007. He filed suit on March 24, 2010, almost three years later, against the defendants, both of whom are alleged in the complaint to reside in Westborough. The complaint alleges that both defendants had a duty to maintain the premises at 83 Brookline Street in a safe and suitable condition, but does not state either defendant's connection with the property.
Service of the summons, interrogatories, and requests for production of documents was not made until May 4, 2010. The plaintiff chose to have service made by having a constable leave a copy of the summons and complaint at the defendants' last and usual place of abode, rather than in hand. Mass.R.Civ.P. 4(d)(1), as amended, 370 Mass. 918 (1976). The constable delivered the summons and complaint to 83 Brookline Street, Worcester, instead of the defendants' residence in Westborough.
The defendants' answer (filed July 27, 2010) asserted affirmative defenses that process was defective and that the claims should be dismissed under rules 12(b)(4) and 12(b)(5), 365 Mass. 754 (1974). The answer was followed on August 27, 2010, by a motion to dismiss on the ground that process had not been properly made. In support of the motion, both defendants submitted affidavits stating that they have never resided at 83 Brookline Street, and that they resided at 14 Jasper Street in Westborough. Defendant Wayne Zarozny acknowledged that he owned 83 Brookline Street.
The plaintiff's opposition was not supported by affidavits. Nor did the opposition detail what (if any) efforts were made to ascertain the defendants' last and usual place of abode. Attached to the motion was a copy of a deed showing Wayne Zarozny as the owner of 83 Brookline Street. Also attached was a computer printout of a public records search showing Wayne Zarozny as having owned several properties in Worcester County. However, only one of those addresses -- 14 Jasper Street, Westborough -- is listed as his current address. Nothing attached to or referenced in the opposition indicated Susan Zarozny's residence. The plaintiff's only explanation for why service was made at 83 Brookline Street rather than at the defendants' residence was that, because Wayne Zarozny owned 83 Brookline Street, "[t]here would have been no reason to suspect that the Defendant had another place of abode at the time service was made."
On appeal, the plaintiff does not so much argue that service was properly made at the defendants' last and usual residence, but rather that the judge erred in finding that the plaintiff had not shown good cause for the error. We review the dismissal of a complaint based on a defect in service for abuse of discretion. Shuman v. Stanley Works, 30 Mass. App. Ct. 951, 953 (1991).
If service is not properly made within ninety days of filing the complaint, the court shall dismiss the action unless the plaintiff can show "good cause" why service was not made as required by the rule. Ibid. Mass.R.Civ.P. 4(j), as appearing in 402 Mass. 1401 (1988). Dismissal is mandatory absent a showing of good cause. "'Good cause' is 'a stringent standard requiring diligent albeit unsuccessful effort to complete service within the period prescribed by the rule.'" Hull v. Attleboro Sav. Bank, 33 Mass. App. Ct. 18, 26 (1992), quoting from Shuman, supra. "The focus of the court's inquiry is the reasonableness and diligence of counsel's effort to effect service." Shuman, supra. "The only example of good cause provided by the legislative history is the obvious one of a defendant's evasion of service." Ibid.
Here, the plaintiff did not explain what efforts were made to ascertain the defendants' last and usual abode. However, the complaint itself shows that the plaintiff (or at least plaintiff's counsel) knew before filing suit that the defendants resided in Westborough. And that information is confirmed (at least with respect to Wayne Zarozny) by the public records search result attached to the plaintiff's opposition to the motion to dismiss. No explanation is given as to why the constable left the summons and complaint at 83 Brookline Street, Worcester, rather than in Westborough. If the error was on the part of the constable, counsel should have been aware of it once the return of service was received (on or about May 7, 2010). That date was still within the ninety days permitted for service, and before the running of the statute of limitations. In other words, there was time to cure the problem. If the error was on the part of counsel, mistake or inadvertence are not good cause. In these circumstances, the judge did not abuse his discretion in dismissing the complaint and in denying the motion to extend time for service.
We recognize that the effect of this decision will likely mean that the plaintiff's claims are time barred by the statute of limitations. "This will, of course, sometimes be the inevitable consequence of such a dismissal. It does not prevent the operation of rule 4(j), much less provide a basis of a finding of good cause for the failure to make service." Hull v. Attleboro Sav. Bank, 33 Mass. App. Ct. at 27.
Decision and order of Appellate Division affirmed.
By the Court (Vuono, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: June 11, 2015.