Opinion
No. 13–P–136.
2013-12-18
Mark TIEDE v. JAMES JOYCE, INC.
By the Court (KANTROWITZ, GRAHAM & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In its notice of appeal, the defendant, James Joyce, Inc., purports to appeal from (1) the denial of its motion for relief from a default judgment entered against it, and (2) the denial of its motion for reconsideration of that motion for relief from judgment. We affirm.
Mark Tiede, the plaintiff, complained that he was beaten by employees of the defendant's tavern, Kitty O'Shea's. The docket reflects that Tiede commenced the action February 14, 2011, and that service was effected on April 23, 2011. The defendant (whom we shall call the tavern) did not answer. A default entered on June 16, 2011. The damages assessment took place before a judge on November 29, 2011, and a default judgment entered against the tavern on December 6, 2011, in the amount of $160,000.
On April 13, 2012, the tavern filed a motion under Mass.R.Civ.P. 60(b)(1), 365 Mass. 828 (1974), for relief from the default judgment, claiming mistake or inadvertence due to its not having received notice of the complaint. Another judge denied the motion on May 17, 2012. As the judge ruled, the tavern's motion was unpersuasive because “the registered agent was served in hand, and his affidavit does not mention also receiving notice of assess[ment] of damages.” The tavern did not file a notice of appeal at this time. Execution issued on the judgment on July 11, 2012. On August 27, 2012, more than three months after the judge denied the tavern's rule 60(b) motion and over eight months after judgment entered, the tavern filed a motion for reconsideration of the order denying its rule 60(b) motion. The same judge denied the reconsideration motion on October 2, 2012, noting that the tavern “has failed to demonstrate in this motion any of the bases for reconsideration, but merely neither this arguments [ sic ] already made [and] ignores actual facts regarding service.” The tavern eventually filed its notice of appeal on October 22, 2012.
The tavern did not notice a timely appeal from the judgment, nor did it notice a timely appeal from the order denying its motion for relief from the judgment. The only matter properly before us is the order denying the tavern's motion for reconsideration. To that point, the tavern argues that the judge abused her discretion because the tavern “demonstrated good cause to remove the default judgment.”
Fatally for the tavern, the time to make that argument was in a timely appeal from the order denying the tavern's rule 60(b) motion. See Curly Customs, Inc. v. Pioneer Financial, 62 Mass.App.Ct. 92, 96 n. 6 (2004) (“[T]he notice of appeal from the denial of the motion for reconsideration would not have been sufficient by itself to preserve appellate rights with respect to the denial of the rule 60[b] motion”). See also Harris v. Sannella, 400 Mass. 392, 396 (1987) (motion for relief from judgment is not a substitute for appeal from the judgment itself; “If the wife had a quarrel with the judge's order of modification, she could have appealed it. This she did not do”). It is difficult to discern how the judge abused her discretion by denying a reconsideration motion that simply repeated arguments that could have been raised on direct appeal.
We have reviewed all of the arguments of the tavern and find them to be without merit.
For these reasons, as well as for substantially those in the brief of the plaintiff, we affirm.
Order denying motion for reconsideration of motion for relief from judgment affirmed.