Opinion
20-P-1103
06-09-2022
THOMAS RONALD THEODORE v. ESTATE OF JUDITH M. THEODORE.
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
More than two decades ago, in August 2000, the plaintiff, Thomas Ronald Theodore, filed a complaint in the Superior Court alleging that the defendant, Judith Theodore (now deceased), had breached a contract with him. In March 2002, the complaint was dismissed by the court following notice of a reported settlement and the parties' failure to respond to an order for dismissal nisi. Eighteen years later, in June 2020, the plaintiff filed a "[m]otion [t]o [r]eopen" the case. In his motion and supporting papers, he alleged that the defendant and her attorney had induced dismissal of the complaint by "falsely represent[ing]" to the court that a settlement had been reached when in fact the plaintiff "was incarcerated at the time [of] the notice of settlement" and "never knew or agreed to a settlement." A Superior Court judge denied the motion to reopen as "untimely" under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974).
During appellate proceedings, the estate was substituted for the defendant. See Mass. R. A. P. 30 (a), as appearing in 481 Mass. 1661 (2019). For simplicity, we refer to the deceased as the defendant.
The plaintiff filed a motion for reconsideration. The motion for reconsideration did not address the time limits set forth in rule 60 (b). Instead, the plaintiff argued that his motion was timely because he filed it within the twenty-year statute of limitations for contracts under seal. See G. L. c. 260, § l. The judge denied the motion, and the plaintiff filed a notice of appeal solely "from the decision . . . denying the 'Motion for Reconsideration.'" Because the plaintiff did not specify the denial of the original motion to reopen in his notice of appeal, see Mass. R. A. P. 3 (c) (1), as appearing in 481 Mass. 1603 (2019), only the motion for reconsideration is properly before us. See Robinson v. Boston, 71 Mass.App.Ct. 765, 771 (2008) (validity of orders not referenced in notice of appeal not properly before appellate court).
A copy of the letter agreement between the parties was attached to the original complaint and is included in the record appendix. Neither an actual seal, nor even the word "seal," appears anywhere in the document. The agreement is not a sealed instrument. See Kingston Hous. Auth. v. Sandonato & Bogue, Inc., 31 Mass.App.Ct. 270, 275-276 (1991). The six-year statute of limitations for general contract actions would apply to this action. See G. L. c. 260, § 2.
"[W]e review the judge's denial of a motion for reconsideration only for abuse of discretion." Merchants Ins. Group v. Spicer, 88 Mass.App.Ct. 262, 271 (2015). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, . . . such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The plaintiff's motion for reconsideration failed to justify the eighteen-year delay between the dismissal of his complaint and his efforts to reopen the case. A motion for relief from a judgment must be "made within a reasonable time." Mass. R. Civ. P. 60 (b). A motion for relief from judgment based on "fraud . . ., misrepresentation, or other misconduct of an adverse party," Mass. R. Civ. P. 60 (b) (3), must be filed "not more than one year after the judgment, order or proceeding was entered or taken." Mass. R. Civ. P. 60 (b). However, the one-year limit does not apply if there is "something more," Owens v. Mukendi, 448 Mass. 66, 73 (2006), such as fraud on the court. See MacDonald v. MacDonald, 407 Mass. 196, 202 n.10 (1990). Nonetheless, an attempt to vacate a judgment for fraud on the court, whether under rule 60 (b) or by an independent action, still must be brought within a "reasonable time." Owens, supra at 77.
We acknowledge the broad dictum in MacDonald, 407 Mass. at 202 n.10, that "there is no time limitation which would bar a court from granting relief for fraud on the court." However, we construe the Supreme Judicial Court's decision in Owens, 448 Mass. at 77, as nonetheless imposing a reasonableness requirement on the time for seeking such relief.
Eighteen years was far from reasonable in these circumstances. See Owens, 448 Mass. at 76-77 (three and one-half year delay unreasonable). The plaintiff is unable to argue that the alleged fraud was hidden from him for eighteen years. The notice of settlement and dismissal appeared openly on the case docket in early 2002. Any effect that the plaintiff's incarceration may have had on his ability to recognize that his complaint had been dismissed against his will ended when he was released from custody, which, according to his own court filings, occurred at least seven years before he filed the motion to reopen the case.
The plaintiff's other arguments fail to excuse his delay in seeking to reopen the case. The motion judge could readily conclude that the "exceedingly limited" doctrine of equitable tolling should not be applied in this case, where the plaintiff was on notice of the alleged fraud for eighteen years and was not diligent in pursuing his judicial remedies. Halstrom v. Dube, 481 Mass. 480, 485 (2019). To the extent the plaintiff claims his own attorney was at fault in this case, the appropriate remedy is an action for malpractice, not a claim of ineffective assistance of counsel. See Commonwealth v. Patton, 458 Mass. 119, 124 (2010) .
We acknowledge that the plaintiff is a pro se litigant and that "some leniency is appropriate"; nonetheless, "the statutes and rules of procedure bind a pro se litigant as they bind other litigants" (quotations and citation omitted). Wilbur v. Tunnell, 98 Mass.App.Ct. 19, 25 n.10 (2020). We discern no abuse of discretion in the judge's denial of the plaintiff's motion for reconsideration.
Order dated July 3, 2020, affirmed.
Massing, Singh & Englander, JJ.
The panelists are listed in order of seniority.