Opinion
September 12, 1996.
Present: Martin, P.J., Welsh Minehan, JJ.
Mortgages, Money owed. Practice, Civil, Motion to vacate default judgment, supersede execution and dissolve real estate attachment; Motion to reconsider, Dist./Mun. Cts. R. A. D. A., Rule 4.
Opinion dismissing defendants' appeal. Motions heard in the Quincy Division by Charles E. Black, J.
Kenneth I. Goodman for the plaintiff.
Michael J. Conley for the defendants.
This is an appeal from an order denying defendants' Motion to Vacate Default Judgment, Supersede Execution and Dissolve Real Estate Attachment, and from the subsequent order denying defendants' Motion to Reconsider.
The underlying action arose from the October 1987 purchase of a condominium unit by defendants Dominic Pungitore and Patricia Pungitore. The condominium was located in a development known as Hawthorne Village in North Attleboro, Massachusetts.
The plaintiff, David E. Burns, Trustee of the Hawthorne Village Realty Trust, originally brought a complaint on December 28, 1990 alleging that there was money owed by the Pungitores on a second mortgage note held by the plaintiff. On February 7, 1991, defendants were defaulted and execution issued on February 26, 1991. Defendants filed a Motion to Vacate Default Judgment on September 5, 1995. On November 6, 1995, the motion was heard and denied. A Motion for Reconsideration was heard and denied on November 29, 1995. On December 11, 1995, defendants filed a Notice of Appeal.
There is no specific rule that allows for the appeal of the denial of a motion for relief from judgment. However, appellate divisions of the District Court have routinely allowed for review of such motion filed after the appeal period permitted by Dist./Mun. Cts. R. A. D. A., Rule 4 has expired. Yet, an appeal from such a denial must be brought within ten days of the denial. See PERLIN AND CONNORS, HANDBOOK OF CIVIL PROCEDURE IN THE MASSACHUSETTS DISTRICT COURTS, page 210 (Second Ed. 1990). The filing of the Motion for Reconsideration did not toll the appeal period. The appeal period began to run on November 6, 1995.
Substantively, the Motion for Reconsideration was based upon the same information presented to the trial court judge in defendant's Notion [Motion] to Vacate Default Judgment. The motion, therefore, does not present an appropriate circumstance for the Court to entertain an appeal from such a denial. Gerald J. Betro Co. v. D'Agostino, 1990 Nass. [Mass.] App. Div. 79.
On Appeal, the defendants argued that no default judgment had properly entered. The issue was not raised before in the District Court and is therefore deemed waived.
Appeal dismissed.