Opinion
No. 11–P–1091.
2012-05-17
Marilyn C. LABOUNTY v. Lee UNITT.
By the Court (KATZMANN, RUBIN & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Lee Unitt, appeals from the denial of her motion for relief from judgment pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), and the denial of the motion for reconsideration of the same. We affirm.
Background. The plaintiff, Marilyn C. LaBounty, filed a complaint in Superior Court on December 14, 2009, against the defendant and others.
The plaintiff alleged that she retained the defendant and the defendant's husband to handle her financial affairs upon the death of the plaintiff's husband. Subsequently, the plaintiff became the victim of a Ponzi scheme by which the defendant and her husband convinced homeowners to mortgage their homes and turn over the proceeds of the mortgage to the defendant and her husband. The plaintiff alleged in her complaint that the defendant converted the funds from two mortgages, breached the fiduciary duties owed to her as the holder of her power of attorney, and engaged in unfair and deceptive business acts and practices in violation of G.L. c. 93A, §§ 2 and 9.
The other defendants in the action are not parties to this appeal.
On January 8, 2010, the defendant was defaulted for failure to file an answer, Mass.R.Civ.P. 55(a), 365 Mass. 822 (1974), as requested by the plaintiff.
The defendant filed an “opposition and request to vacate plaintiff's application for an entry of default.” On March 22, 2010, there was a stipulation by the parties allowing for the setting aside of the entry of default and the filing of an answer by March 29, 2010. No answer was filed and on April 8, 2010, the plaintiff again requested entry of default against the defendant. The defendant's counsel filed an answer and counterclaim on May 19, 2010, which the docket reflects was rejected by the court because the defendant had defaulted and needed to file for relief from default. On September 7, 2010, the plaintiff filed an emergency motion for clarification of status regarding the defendant's default. A hearing to assess the damages was held on October 7, 2010. On October 21, 2010, the judge entered a judgment awarding the plaintiff $935,017.47 in trebled G.L. c. 93A damages, $31,147.84 in interest, and $44,432.50 in attorney's fees and costs.
“When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.” Mass.R.Civ.P. 55(a).
Pursuant to Mass.R.Civ.P. 60(b), the defendant filed a motion for relief from judgment on January 20, 2011, which was denied on March 9, 2011. The defendant then filed a motion for reconsideration of the order denying the motion for relief from judgment. This motion was also denied.
Discussion. On appeal from the denial of a motion for relief from judgment pursuant to Mass.R.Civ.P. 60(b) and the denial of a motion for reconsideration of said motion, the defendant puts forth various arguments and defenses, which we address in turn.
First, the defendant presents arguments concerning the merits of the claims of conversion and breach of fiduciary duties and sets out defenses, including improper service of the demand letter and fraud upon the court. The defendant also claims that the plaintiff failed to include a necessary party in the complaint. We do not review the defendant's arguments because the merits of the claims and the defenses are not properly before us. “A party is not entitled to raise arguments on appeal that could have been raised, but were not raised, before the court below.” Lincoln Pharmacy of Milford, Inc. v. Commissioner of the Div. of Unemployment Assistance, 74 Mass.App.Ct. 428, 436 (2009). Here, the defendant defaulted by failing to file an answer and counterclaims by the extended deadline. Her subsequent attempts to file the answer and counterclaims were unsuccessful due to the existing default. See Mass.R.Civ.P. 55(c) (upon the entry of default, the defaulted party must show good cause to have the default set aside). Thus, any arguments raised in the defendant's answer and counterclaims were not properly before the Superior Court and cannot be heard on appeal. Lincoln Pharmacy of Milford, Inc., 74 Mass.App.Ct. at 436.
Next, the defendant challenges the denial of her motions for relief from judgment and for reconsideration. We review to determine if there is a clear abuse of discretion. Clamp–All Corp. v. Foresta, 53 Mass.App.Ct. 795, 807 (2002). The decision to grant or deny the rule 60(b) motion is left to the “broad discretion of the motion judge.” Tai v. Boston, 45 Mass.App.Ct. 220, 224 (1998).
On appeal, the appellant has the “burden ... in the first instance to furnish a record that supports [her] claims on appeal.” Arch Med. Assocs., Inc. v. Bartlett Health Enterprises, Inc., 32 Mass.App.Ct. 404, 406 (1992). Furthermore, “[e]rrors that are not disclosed by the record afford no basis for reversal.” Ibid. Here, the record furnished by the defendant does not show that the judge abused her discretion in denying the motion for relief from judgment and the motion for reconsideration. While the defendant has provided extensive documentation in the appendix, these documents are not part of the record and do not support the claim that the motions were improperly denied. The fact that the defendant is acting pro se “does not excuse [her] from complying with the basic requirements of appellate procedure.” Buckmore v. Czelusniak Funeral Home, Inc., 427 Mass. 1014 (1998). Thus, we discern no abuse of discretion by the judge in denying the motion for relief from judgment and the motion for reconsideration.
Orders denying motion for relief from judgment and motion for reconsideration affirmed.