Opinion
16-P-614
06-20-2017
James P. BARRON v. Jill J. BROFSKY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
James P. Barron brought this action alleging claims of legal malpractice and negligence against Attorney Jill F. Brofsky, who represented him in postdivorce proceedings. Barron appeals from a judgment dismissing his complaint with prejudice pursuant to Mass.R.Civ.P. 33(a)(4), as appearing in 436 Mass. 1401 (2002), and 33(a)(6), as appearing in 454 Mass. 1401 (2009), and from an order denying his motion for relief from judgment. We affirm.
Background. On January 9, 2015, Barron brought this action alleging that Brofsky erroneously advised him in connection with a complaint for modification of child support. On May 27, 2015, Brofsky served interrogatories. Barron did not respond. Brofsky then sent several communications, extensions and "reminders," in accordance with the requirements of rule 33(a)(4), but Barron still did not respond. In November, 2015, Brofsky moved to dismiss the complaint. Just before a scheduled hearing on the matter, Barron provided unsigned and, in the judge's view, wholly inadequate responses to Brofsky's interrogatories. Barron also filed an opposition to the motion to dismiss. He contended that because he filed his responses to the interrogatories by the time of the hearing on the motion to dismiss, and because he suffered from a disability (brain tumor), he should be excused from his earlier failure to respond. The judge disagreed, noting that the explicit language of rule 33(a)(4) and (6) does not give a judge discretion in the circumstances presented and that, even if the judge had discretion, Barron had failed to demonstrate any good cause or other reason to excuse his failure to answer the interrogatories promptly. Judgment entered dismissing the complaint with prejudice, and Barron filed a timely appeal.
The complaint alleges that the defendant improperly calculated the plaintiff's child support obligation, causing him to overpay child support until he discovered the error.
Thereafter, Barron moved for relief from the judgment under Mass.R.Civ.P. 60(b)(1), 365 Mass. 828 (1974). The rule 60(b) motion was denied for failure to comply with Superior Court Rule 9A and because Barron failed to show either excusable neglect or a meritorious claim. Barron also appeals from the order denying this motion.
Discussion. Rule 33(a)(6) specifies that the court, upon receipt of a properly supported application, "shall enter an appropriate judgment" against a party who chooses not to answer interrogatories (emphasis added). Here, as Barron himself acknowledged, Brofsky's interrogatories were "entirely unexceptional." Barron also agrees that Brofsky's rule 33(a)(4) application was properly supported and that all predicates to entry of judgment were met. In these circumstances, we conclude that dismissal of the complaint with prejudice was appropriate.
Just before hearing on Brofsky's rule 33(a)(4) application, Barron served unsigned, undated responses to interrogatories. At hearing, Barron acknowledged that those responses are "ripe with incompleteness" and that it is "perfectly obvious they are not satisfactory responses."
Brofsky's motion to dismiss, her final request for answers, her affidavit in support of the motion to dismiss, and the correspondences referred to by the judge in his decision are not in the appendix. See Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). In addition, Brofsky states in her brief that Barron did not consult with her on the contents of the appendix or submit to her a designation of the parts of the record he would include, as required by Mass.R.A.P. 18(b), as amended, 425 Mass. 1602 (1997). Barron had the burden to consult with Brofsky and to produce an appendix that contains "such court documents and exhibits ... as may assist [us] in deciding the appeal." Zatsky v. Zatsky, 36 Mass. App. Ct. 7, 10 n.3 (1994). Proceeding pro se does not excuse Barron's failure to do so. See Brossard v. West Roxbury Div. of the Dist. Ct. Dept., 417 Mass. 183, 184 (1994).
--------
The judge did not abuse his discretion in denying Barron's motion for relief from the judgment under rule 60(b). See Gath v. M/A-COM, Inc., 440 Mass. 482, 497 (2003). Barron's assertion that his failure to respond to the interrogatories was a "manifestation of [his] disability" is not supported by an affidavit. See Superior Court Rule 9A(a)(4). Furthermore, it is not "otherwise apparent on the record" that the claims stated in the complaint are meritorious. Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 430 (1979). For example, Barron has not provided any financial information to establish that child support was miscalculated, and the letter from his treating physician, "signed under the pains and penalties of perjury" but not notarized, is not sufficient to establish that that he lacked the capacity to understand the separation agreement when he signed it in 2007.
Judgment affirmed.
Order denying motion for relief from judgment affirmed.