Opinion
20-P-1148
02-04-2022
MARGARET TARBET v. SAMIA PROPERTIES LLC & another.[1]
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
The plaintiff, Margaret Tarbet, filed this action pro se against defendant Samia Properties LLC (Samia) -- the owner of her former apartment building -- arising from her slip and fall on ice in the building's parking lot. During the pendency of the case, Tarbet was evicted from her apartment and subsequently moved out of state. She failed to appear at the final pretrial conference, and a Superior Court judge sua sponte entered a judgment of dismissal for lack of prosecution. Just under one year after the dismissal, Tarbet sought and obtained leave from a single justice of this court to appeal from the judgment. On appeal, Tarbet assigns error to the dismissal of her complaint, as well as to various rulings regarding discovery motions. We affirm.
Dinarte Goncalves, who performed snowplowing services for Samia, was originally named as a defendant. Goncalves was subsequently granted summary judgment with Tarbet's assent, and a separate and final judgment entered in his favor. Tarbet does not raise any issues regarding Goncalves in this appeal.
Discussion.
1. Dismissal for lack of prosecution.
"Courts have inherent power to dismiss a case for lack of prosecution; such inherent power is necessary to keep the judicial system operating efficiently." Anderson v. Sport Lounge, Inc., 27 Mass.App.Ct. 1208, 1209 (1989). "The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an 'inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." State Realty Co. of Boston, Inc. v. MacNeil Bros. Co., 358 Mass. 374, 379 (1970), quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630-631 (1962). The decision to dismiss a case for the failure to prosecute lies within the sound discretion of the judge. Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986). "Only in rare instances will an appellate court rule that there has been an abuse of discretion amounting to an error of law." Anderson, supra.
Here, we are not persuaded that this is one of the "rare instances" in which a judge's decision to dismiss a case for lack of prosecution amounted to an abuse of discretion. Anderson, 27 Mass.App.Ct. at 1209. Tarbet failed to appear at the final pretrial conference on August 29, 2019, and she did not explicitly notify Samia or the court that she would not appear. She did, however, previously allude to a different Superior Court judge that she was moving and would discontinue pursuing her case. At a hearing on the defendants' joint motion for summary judgment held on April 11, 2019, Tarbet stated to the motion judge that, as a result of her eviction, she would be moving out of the Commonwealth the following month, which would "end [her] action" unless she was granted summary judgment. Notably, at that point, Tarbet had not moved for summary judgment. She filed a notice of intent to file a late motion for summary judgement several days after the hearing, but, on April 30, 2019, was informed that she would need to seek leave to do so because "the deadline for serving and filing motions for summary judgment ha[d] long passed."
As noted above, Tarbet then failed to appear at the final pretrial conference on August 19, 2019, and counsel for Samia informed the pretrial conference judge that Tarbet had made these earlier representations at a prior hearing before a different judge. Samia's counsel stated that Tarbet had moved out of her apartment in June and had not provided Samia or the court with an updated address. Counsel further represented that he had unsuccessfully attempted to contact Tarbet via email on several occasions, and that the telephone number on record for Tarbet was no longer in service. Additionally, various attempts by the clerk's office to contact Tarbet were similarly futile. Armed with this information, it was reasonable for the pretrial conference judge to conclude that Tarbet had abandoned her case, and the pretrial conference judge accordingly acted well within her discretion in dismissing the case for lack of prosecution. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (defining abuse of discretion as decision that "falls outside the range of reasonable alternatives").
On appeal, Tarbet contends that Samia prevented her from pursuing the case by improperly evicting her from her apartment, which forced her to move out of the Commonwealth. The propriety of Tarbet's eviction is not at issue in this case, and her reasoning for failing to appear at the final pretrial conference without notice was never raised in the lower court. Tellingly, Tarbet did not file a motion to vacate the judgment of dismissal asserting that her failure to appear was due to "mistake, inadvertence, surprise, or excusable neglect." See Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). The failure was grave, as "[w]e do not consider issues, arguments, or claims for relief raised for the first time on appeal." Cariglia v. Bar Counsel, 442 Mass. 372, 379 (2004) .
2. Discovery rulings.
Tarbet served interrogatories and requests for the production of documents on Samia on June 15, 2018, and Samia provided its answers and objections on August 15, 2019 -- just over two weeks past the forty-five day deadline. See Mass. R. Civ. P. 33 (a) (3), as appearing in 436 Mass. 1401 (2002). Tarbet then served Samia with a final request for answers and document production, and subsequently filed an application for final judgment under Mass. R. Civ. P. 33 (a) (3). Samia moved to strike the application for final judgment. The motion to strike was allowed, and Tarbet filed a motion for reconsideration, which was denied. On appeal, Tarbet argues that the judge erred in striking her application for final judgment and in denying her motion for reconsideration. To the extent these arguments are properly before us, they are without merit.
After being granted leave to file this late appeal, Tarbet filed a motion for clarification of the issues on appeal. A single justice of this court issued an order stating that "the issues raised by the appellant in her brief must relate to the 9/3/2019 judgment." For this reason, Samia contends that Tarbet's arguments concerning the discovery rulings are not properly part of the appeal. Nevertheless, because discovery orders are generally not appealable prior to final judgment, see Beit v. Probate & Family Court Dep't, 385 Mass. 854, 858 (1982), and this is Tarbet's appeal from the final judgment, we review her arguments on the merits.
Pursuant to Mass. R. Civ. P. 33 (a) (4), as appearing in 436 Mass. 1401 (2002), "[i]n the event that answers or objections have not been received and after the expiration of 40 days from the date of service of the final request for answers, . . . the interrogating party may file a written application for entry of final judgment for relief or dismissal." Here, rule 33 (a) (4) is inapplicable because Tarbet did receive answers and objections from Samia. Tarbet's primary argument in favor of final judgment was that Samia's answers were inadequate. That, however, is not a proper basis for final judgment under the rule. As the motion judge noted, if Tarbet was dissatisfied with Samia's answers, she could have filed a motion to compel more complete answers, pursuant to Mass. R. Civ. P. 37 (a) (2), 365 Mass. 797 (1974). We accordingly discern no error in the allowance of Samia's motion to strike the application for final judgment or the denial of Tarbet's motion for reconsideration.
Samia's request for attorney's fees and costs is denied.
Judgment affirmed.
The panelists are listed in order of seniority.