Opinion
12-P-797
12-19-2012
GABRIEL RIVERA v. MICHAEL VENDITTO, JR., & another.
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
On February 6, 2012, lessee Gabriel Rivera commenced the present action against lessor Michael Venditto, Jr. (and the special process server in the underlying litigation), under Mass.R.Civ.P. 60(b)(4) and (6), 365 Mass. 828 (1974), alleging that the complaint underlying the appeal in a related case is void for lack of service -- grounds identical to those asserted, and found wanting, in his rule 60(b)(4) and (6) motion in the underlying litigation.
See Venditto vs. Rivera, Mass. App. Ct., No. 11-P-1092, released this day.
It appears that this is a collateral attack on the orders denying the latter motion and the motion for relief from the default judgment in the related case, as the Superior Court judge recognized in allowing Venditto's motion to dismiss on grounds of res judicata. Her order states: 'After hearing and review, the motion to dismiss is ALLOWED. The matter of service of process on plaintiff in MICV 2008-4045 has been litigated and resolved and said issue is currently on appeal in the Appeals Court in Docket No. 2011-P-1092.'
Judgment properly was entered dismissing the complaint as to both defendants.
No more need be said other than, as in Cary Place Condominium Assn. vs. Rivera, Mass. App. Ct., No. 12-P-94, also released this day, the state of the law is clear. As such, and due to the conduct of the plaintiff, appellate attorney's fees and costs for the defendants are appropriate and so ordered. Contrast Pierce v. Clark, 66 Mass. App. Ct. 912, 915 (2006). The defendants are to submit, within fourteen days of the date of the rescript, the specific amount requested, along with a breakdown of all fees and costs and supporting documentation. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The plaintiff may then, within seven days thereafter, submit a response challenging the requested amounts. See ibid.
We deny the plaintiff's request for attorney's fees and costs.
Judgment affirmed.
By the Court (Kantrowitz, Berry & Grainger, JJ.),