Opinion
No. 11–P–946.
2012-06-22
James VILLANDRY & another v. Ronald J. JANINO.
By the Court (GREEN, GRAINGER & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
James and Katrina Villandry (Villandrys) appeal from the denial of their motion to vacate judgment, made pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), following the entry of judgment under Mass.R.Civ.P. 33(a), as appearing in 436 Mass. 1401 (2002), for failure to timely respond to interrogatories. For the reasons set forth, we affirm.
“A motion for relief under rule 60(b) is directed to the sound discretion of the motion judge, and we review the judge's ruling for abuse of discretion.” Nortek, Inc. v. Liberty Mut. Ins. Co., 65 Mass.App.Ct. 764, 775 (2006). “The exercise of discretion in this area involves the ‘absence of arbitrary determination, capricious disposition, or whimsical thinking.’ “ Berube v. McKesson Wine & Spirits Co., 7 Mass.App.Ct. 426, 433 (1979), quoting from Davis v. Boston Elev. Ry., 235 Mass. 482, 496 (1920). While the factors a judge should apply in deciding a rule 60(b) motion are set forth in Berube, supra, “[t]here is no error of law amounting to an abuse of discretion simply because a reviewing court might have reached a different result; the standard of review is not substituted judgment.” Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986).
In this case, after being given a thirty-day extension, the Villandrys failed to timely answer Janino's interrogatories. In fact, over four months elapsed between Janino's request for answers to interrogatories and his application for final judgment. Even after judgment entered for Janino, the Villandrys did not correspond with Janino regarding the unanswered interrogatories for nearly a month. The Villandrys' attorney swore in an affidavit that she was sick and that there was a death in the family during part of the time the discovery requests went unanswered, but even considering this, the Villandrys still had at least three months within which to respond. In addition, after the court entered judgment for Janino pursuant to rule 33(a), the Villandrys waited two days short of a year to file their rule 60(b) motion.
While we recognize that the record might permit some of the Berube factors to be interpreted in favor of the Villandrys, we will not reverse a motion judge's decision “except upon a showing of a clear abuse of discretion.” Tai v. Boston, 45 Mass.App.Ct. 220, 224 (1998), quoting from Scannell v. Ed. Ferreirinha & Irmao, Lda., 401 Mass. 155, 158 (1987). See Piepul v. Bryson, 41 Mass.App.Ct. 932 (1996); McIsaac v. Cedergren, 54 Mass.App.Ct. 607, 609–610 (2002). Because the Villandrys were afforded ample time to respond to the interrogatories and failed to do so, and because they waited two days short of a year to file their rule 60(b) motion, the judge did not abuse his discretion in finding an absence of “excusable neglect.”
Counsel's explanation for the failure to comply explains some, but not all, of the delay in this case. The record is silent whether the Villandrys themselves contributed as well. “[W]e recognize that a relevant factor to be considered by the judge in evaluating the excusability of the neglect is whether the error is chargeable to the party's legal representative, rather than to the party himself. We have, however, approached this factor with caution, stressing the general rule that litigants are properly bound by the conduct of their attorneys.” McIsaac v. Cedergren, supra at 611–612 (2002) (internal quotations and citations omitted).
Order denying motion to vacate judgment affirmed.