Opinion
18-P-888
06-13-2019
JAMES P. RYAN v. CITY OF EVERETT.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The plaintiff, James P. Ryan, appeals from an order denying his motion to vacate a judgment, pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974) (rule 60 [b]). Nearly one year earlier, a judge had ordered the entry of a judgment based on a reported settlement between the parties, ordering the defendant city of Everett (city) to pay Ryan the reported settlement amount. Ryan took no appeal from that judgment. We affirm.
Background. In 2012, Ryan, the former owner of a residential building in the city, brought an action against the city asserting breach of contract and tort claims arising out of the city's attempt to condemn the property for purported violations of city ordinances. After a judge dismissed Ryan's contract claim on the pleadings, but before trial commenced on the remaining tort claim, the parties agreed to settle the dispute for $35,000, and the city reported the case as settled to the judge on May 27, 2016. Ryan subsequently refused to execute a settlement agreement that did not include an admission of wrongdoing by the city. After several months of inaction, the city filed a motion to dismiss or, in the alternative, to enforce the negotiated settlement (motion to enforce the settlement or motion). Five days before the scheduled hearing on the city's motion, Ryan's attorney filed a motion to withdraw from the case, which Ryan did not oppose. When Ryan did not appear at the motion hearing, or file an opposition to the motion to enforce the settlement, the judge allowed it in part and ordered the city to pay Ryan the agreed-to settlement amount. Judgment entered on February 22, 2017. As we have noted, Ryan did not appeal from the judgment.
After foreclosure proceedings, the property was sold to another individual in 2010.
A copy of this motion is not included in the record on appeal.
The judge reduced the settlement to $33,848.85, to reflect the amount incurred by the city in prosecuting its motion, and, attributing the delay of the settlement principally to Ryan, declined to include prejudgment interest.
While it is unclear when he learned of the judgment, Ryan does not claim that there was any delay in notification that would have impeded his ability to file a timely appeal.
Almost one year later, Ryan's new counsel filed a rule 60 (b) motion to vacate the judgment. In his supporting affidavit, Ryan alleged that his former attorney and the city had fraudulently represented to the judge that the matter was settled. Ryan asserted that vacating the judgment was "appropriate to accomplish justice" under rule 60 (b) (6) because it would allow him "to pursue his claim and have his day in court." The judge denied Ryan's motion to vacate "for the reason stated in the City's Opposition," which contended that Ryan failed to present "any facts demonstrating fraud or misrepresentation . . . [or] any other reason justifying relief from . . . judgment." This appeal followed.
In his affidavit and on appeal, Ryan asserts the parties reported the case as settled on May 31, 2016, and contends that he informed his former counsel via e-mail on May 30, 2016, that the city's admission of wrongdoing was an essential part of any settlement. Although the docket reflects that the parties reported the case as settled on May 31, 2016, e-mail communication between the attorneys indicates that the city reported the case as settled on May 27, 2016. Because we accept for purposes of this appeal that Ryan had communicated to his counsel that he would not settle without an admission of wrongdoing by the city, any dispute as to the date that the parties reported the case as settled is irrelevant.
Ryan additionally asserts on appeal that, instead of assisting him, his former attorney "threatened [Ryan] with a subpoena and later, filed a lien." Ryan's affidavit, however, states that, prior to the filing of the city's motion, the former attorney threatened that if Ryan did not sign the agreement "as is," the city (not the former attorney) would "subpoena [Ryan] to Court to sign the agreement." Although the former attorney did eventually file a lien against Ryan, it was only after judgment issued on the city's motion to enforce the settlement.
Discussion. The sole issue before us is whether the judge committed an abuse of discretion in denying Ryan's rule 60 (b) motion. See Matter of M.C., 481 Mass. 336, 344 (2019) ("We review the denial of a motion under Mass. R. Civ. P. 60 [b] for abuse of discretion"). There is no "abuse of discretion simply because a reviewing court would have reached a different result." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Ryan first contends that the judge should have granted his motion to vacate pursuant to rule 60 (b) (3) because his former attorney and the city committed "fraud on the court" by misrepresenting his assent to the settlement agreement to the judge. Rule 60 (b) (3) allows relief from a final judgment or order on the basis of fraud or misrepresentation. A party alleging "fraud on the court" must demonstrate -- through clear and convincing evidence -- that the other party "has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense" (quotation and citation omitted). Mt. Ivy Press, L.P. v. Defonseca, 78 Mass. App. Ct. 340, 349 (2010). A party may commit "fraud on the court" by "brib[ing] . . . judges, employ[ing] . . . counsel to influence the court, [and] involv[ing] . . . an attorney (an officer of the court) in the perpetration of fraud" (quotation and citation omitted). Id. See Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 730 (2006) (forged letters, fabricated e-mails, and "calculated pattern of false statements to the court" each held to constitute "fraud on the court"). Nevertheless, a party's "nondisclosure . . . to the court . . . of facts pertinent to a controversy before the court, without more, does not amount to 'fraud on the court' for purposes of vacating a judgment under rule 60 (b)" (quotation and citation omitted). Mt. Ivy Press, L.P., supra.
Here, Ryan failed to demonstrate an "unconscionable scheme" by either the city or his former attorney. Id. Ryan does not contest that he agreed to settle the matter for the amount stated; he claims only that both his former attorney and the city knew that his consent to a settlement agreement was contingent on language stipulating that the city acted "intentionally." Even if Ryan's former attorney and the city did not disclose that information to the judge, such conduct, "without more, does not amount to 'fraud on the court' for purposes of vacating a judgment under rule 60 (b)" (quotation and citation omitted). Id. Accordingly, we discern no abuse of discretion in the judge's denial of relief under rule 60 (b) (3).
Ryan also argues that the judge should have granted his motion pursuant to rule 60 (b) (6), which permits relief for "any other reason justifying relief." When determining whether rule 60 (b) (6) relief is warranted, we assess "whether the moving party has a meritorious claim or defense . . . whether extraordinary circumstances warrant relief . . . and whether the substantial rights of the parties in the matter in controversy will be affected by granting the motion" (quotation and citation omitted). Mt. Ivy Press, L.P., 78 Mass. App. Ct. at 346. See DeMarco v. DeMarco, 89 Mass. App. Ct. 618, 621-622 (2016) ("Extraordinary circumstances may include evidence of actual fraud, a genuine lack of consent, or a newly-emergent material issue"). "The party seeking relief must show that allowing the judgment to stand would be manifestly unconscionable" (quotation and citation omitted). Mt. Ivy Press, L.P., supra at 347. A party may not use a motion under rule 60 (b) (6) "as a substitute for a timely appeal" (quotation and citation omitted). Cohen v. Cohen, 470 Mass. 708, 717 (2015). See Bromfield v. Commonwealth, 400 Mass. 254, 257 (1987).
Here, Ryan did not demonstrate "extraordinary circumstances" warranting relief under rule 60 (b) (6). See generally DeMarco, 89 Mass. App. Ct. at 621-622; Mt. Ivy Press, L.P., 78 Mass. App. Ct. at 346. Ryan failed to (1) appear at the hearing on the city's motion to enforce the settlement, (2) oppose the city's motion, or (3) appeal from the February 22, 2017 judgment. He offers no explanation for this lack of action, and does not argue that he relied on the former attorney to oppose the motion. Ryan relinquished his opportunity to have his day in court, and it was not an abuse of discretion to prevent him from using his motion to vacate as a belated appeal from the judgment. See Cohen, 470 Mass. at 717; Bromfield, 400 Mass. at 257.
The judge who acted on the motion to enforce the settlement explicitly found that Ryan did not oppose the motion or appear at the motion hearing.
Conclusion. For the reasons discussed above, we affirm the order entered February 28, 2018, denying Ryan's motion to vacate the judgment.
The city states no grounds for its request for appellate attorney's fees, so that request is denied.
So ordered.
By the Court (Maldonado, McDonough & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 13, 2019.