FARRAH v. LAMSON (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff-tenants, Marie and Francis Farrah, commenced this action in 2014, seeking the return of their security deposit and interest accrued on that security deposit as well as the last month's rent paid in advance to the defendant-landlord, Kymberleigh Lamson. On appeal, we consider whether the Housing Court judge properly (1) dismissed the landlord's appeal for lack of prosecution and (2) denied the landlord's motion to remove a default. We reverse and remand the matter to the Housing Court.

Background. On August 29, 2016, the landlord failed to attend a status hearing and was defaulted. On September 2, 2016, the landlord filed a motion to remove default. Following a hearing on October 17, 2016, the judge denied the landlord's motion to remove default and dismissed the landlord's counterclaims, finding that the landlord had “no reasonable excuse” for failing to attend the August 29 hearing.³ Two days later, the judge entered the default judgment and assessed damages in the amount of $ 10,936.08.⁴

On October 28, 2016, the landlord ordered electronic recordings of the August and October hearings (hearings). On October 31, 2016, the landlord filed a motion for relief (first motion for relief) from the denial of her motion to remove default and from the final judgment, citing Mass. R. Civ. P. 60 (b) (1), 365 Mass. 828 (1974), which was denied without hearing on November 1, 2016.⁵ Also on October 31, 2016, the Housing Court received from the landlord a notice of appeal (first appeal).⁶

The landlord received a compact disc (CD) containing the recordings of the hearings from the court no later than November 21, 2016.⁷ On December 14, 2016, the tenants moved to dismiss the landlord's first appeal for failure to comply with Mass. R. A. P. 8 (b) (3) (ii), as amended, 428 Mass. 1601 (1998), which provides, in relevant part, that “[i]f the appellant deems all or part of the electronic recording necessary for inclusion in the record,” the appellant, within fifteen days of receipt of the electronic recording, must inform the court and the appellee of the date on which the appellant received the recording, the parts the appellant intends to include in the record on appeal, and the name and contact information of the transcriber.

On December 16, 2016, the landlord filed an opposition to the tenants' motion to dismiss the first appeal and a motion for rehearing (second motion for relief) to review the denials of her first motion for relief and her motion to remove default. In her opposition, the landlord asserted that she did not plan to use the electronic recordings in her appeal. After a hearing on January 9, 2017, the same judge denied the landlord's second motion for relief and allowed the tenants' motion to dismiss the landlord's first appeal for lack of prosecution. The landlord filed a timely notice of appeal from the January 9, 2017 orders, which are now before us.

Discussion. 1. Dismissal of first appeal. We review an order dismissing an appeal for abuse of discretion, remaining “mindful ․ that the burden was on the defendant, as appellant, to pursue [her] appeal, and to provide an adequate record for [her] appeal.” Scheuer v. Mahoney, 80 Mass. App. Ct. 704, 708 (2011), quoting Spivey v. Neitlich, 59 Mass. App. Ct. 742, 744 (2003).

This case highlights the interplay between and a gap in Rules 8, 9, and 10 of the Massachusetts Rules of Appellate Procedure. If an appellant fails to comply with Mass. R. A. P. 9 (c), then Mass. R. A. P. 10 (c), as amended, 417 Mass. 1602 (1994), authorizes a trial court judge to dismiss an appeal, “but only upon a finding of inexcusable neglect; otherwise, the court shall enlarge the appellant's time for taking the required action.” Relevant here, rule 9 (c) (1) requires an appellant to “perform any act reasonably necessary to enable the clerk to assemble the record.” Mass. R. A. P. 9 (c) (1), as amended, 378 Mass. 935 (1979).⁸ The Supreme Judicial Court has held that it is a violation of rule 9 (c) (1) to fail to comply with rule 8 (b) (3) (ii). See Adoption of Simone, 427 Mass. 34, 45 (1998); Hawkins v. Hawkins, 397 Mass. 401, 405 (1986). Rule 8 (b) (3) (ii), in turn, governs the procedures that an appellant must follow in arranging for transcription services when the proceeding was electronically recorded. Rule 8 (b) (3) (ii), as in effect during the pendency of the first appeal, did not articulate the appellant's transcription obligations when the appellant decides not to use transcripts in the appeal. However, our case law imposes an affirmative obligation on the appellant to inform the appellee of such a decision. See Doten v. Doten, 395 Mass. 135, 139 (1985); Points East, Inc. v. City Council of Gloucester, 15 Mass. App. Ct. 722, 724 (1983). That said, “[i]f, prior to the lower court's hearing such motion for noncompliance with Rule 9(c), the appellant shall have cured the noncompliance, the appellant's compliance shall be deemed timely.” Mass. R. A. P. 10 (c).⁹

In this case, the judge dismissed the landlord's appeal for “lack of prosecution.” Neither the margin order allowing the motion to dismiss nor the transcript makes any mention of the inexcusable neglect standard. The question is whether on these specific facts the motion judge could have permissibly dismissed the appeal.

The tenants claimed that the landlord did not comply with rule 8 (b) (3) (ii) because she failed to inform the court and the appellees in writing of the date on which she received the electronic recordings, and failed both to designate the record for transcription and to identify the transcriber within fifteen days of receiving the electronic recordings. However, in her opposition to the tenants' motion to dismiss the appeal, the landlord informed both the court and the appellees of the date on which she received the electronic recordings and her intention to prosecute the appeal without reliance on the electronic recordings. The landlord filed her opposition on December 16, 2016, over three weeks prior to the hearing on the tenants' motion to dismiss.¹⁰ Thus, the landlord cured her noncompliance prior to the hearing, which is deemed timely, as expressly provided by rule 10 (c).¹¹ See Mass. R. A. P. 10 (c); South Boston Elderly Residences, Inc. v. Moynahan, 88 Mass. App. Ct. 742, 743-744 (2015) (cure provision of rule 10 [c] is liberal and “compulsory,” meaning that judge has no discretion to dismiss appeal if appellant has timely cured her noncompliance with rules). Accordingly, the judge's order allowing the tenants' motion to dismiss the appeal must be reversed. Contrast Points East, Inc. v. City Council of Gloucester, 15 Mass. App. Ct. at 724 (affirming dismissal of appeal because “it would have been a simple matter for the appellants to have cured their noncompliance by ordering a transcript, or, if they intended to raise no issues requiring a transcript of the evidence, to say so”).

2. Denial of motion to remove default. Given that the parties have briefed the issue of whether the judge properly denied the landlord's motion to remove default, we exercise our discretion and consider the issue on its merits.

We review the denial of the landlord's motion for removal of default for an abuse of discretion. See Ceruolo v. Garcia, 92 Mass. App. Ct. 185, 188 (2017). “An abuse of discretion occurs when the judge's decision rests upon a clear error of judgment in weighing the factors relevant to the decision ․ such that [it] falls outside the range of reasonable alternatives, or when the judge's decision constitutes a significant error of law.” Id., quoting Chambers v. RDI Logistics, Inc., 476 Mass. 95, 110 (2016).

When reviewing a motion to remove the entry of default under Mass. R. Civ. P. 55 (c), a judge may set aside the entry upon a finding of “good cause.” Mass. R. Civ. P. 55 (c), 365 Mass. 822 (1974). In contrast, rule 55 (c) provides that, when reviewing a motion to remove a default judgment, a judge must apply the more stringent standards set forth in Mass. R. Civ. P. 60 (b).

In this case, the landlord filed her motion to remove the default on September 2, 2016, and the default judgment did not enter until October 19, 2016.¹² Accordingly, the landlord's motion should have been assessed under the rule 55 (c) “good cause” standard.¹³ However, the judge found that the landlord had “no reasonable excuse for failing to attend court on August 29, 2016”; we thus conclude that the judge erred by applying the incorrect standard.¹⁴

Conclusion. The January 9, 2017 orders allowing the tenants' motion to dismiss the first appeal and denying the landlord's motion for rehearing are reversed, and the case is remanded to the Housing Court to determine whether the landlord can show good cause sufficient to remove the entry of default.

So ordered.

Reversed and remanded.

FOOTNOTES

3.   The judge also found that the landlord had no meritorious defense to the plaintiffs' security deposit claims, that one of her defenses was “false and specious,” and that there was “no plausible merit” to her counterclaims for unpaid rent and waste damage.

4.   This amount included treble the unreturned security deposit, treble unpaid interest on the tenants' last month's rent and security deposit, and statutory interest, as well as attorney's fees in the amount of $ 6,250.

5.   In support of her motion, the landlord argued, inter alia, that she had not received a notice to appear. At least as to a later notice, the clerk agreed that the clerk's office had sent the notice (of the denial of the motion for reconsideration) to the wrong address.

6.   The landlord purported to make her appeal “contingent upon the outcome” of her first motion for relief. Contingent appeals are not authorized by the Massachusetts Rules of Appellate Procedure. Moreover, because the landlord did not file a new notice of appeal after the judge denied her first motion for relief, she failed to comply with Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013) (“A notice of appeal filed before the disposition of motions [for relief from judgment under Mass. R. Civ. P. 60] shall have no effect”). However, “[o]n the compressed time frame here, the concerns underlying rule 4 (a) are not implicated: no action on the appeal had yet been taken before the motion for reconsideration was decided.” Roch v. Mollica, 481 Mass. 164, 165 n.2 (2019). Therefore, we decide the appeal on its merits. See Matter of a Care & Protection Summons, 437 Mass. 224, 231 n.14 (2002), quoting Swampscott Educ. Ass'n v. Swampscott, 391 Mass. 864, 865-866 (1984) (“a decision on the merits should not be avoided on the technicality that a premature notice of appeal was or may have been filed, where no other party has been prejudiced by that fact”).

7.   The CD was available at the Housing Court on November 7, 2016. The docket does not reflect when the landlord retrieved the CD. The landlord represents that she picked up the CD on November 21. Regardless of the date, our analysis is the same.

8.   Rule 9 (c), as in effect during the pendency of the first appeal, contains two subsections. The dismissal could not have been based on rule 9 (c) (2) because that subsection does not apply to “electronically recorded proceedings governed by Rule 8(b)(3),” as was the case here. See Mass. R. A. P. 9 (c) (2), as amended, 437 Mass. 1602 (2002). See also Spivey v. Neitlich, 59 Mass. App. Ct. at 745.

9.   The newly amended Rules of Appellate Procedure, which go into effect on March 1, 2019, now expressly require the appellant to certify to the clerk when “no lower court proceedings are relevant to the appeal.” Mass. R. A. P. 8 (b) (1) (A), as amended, 481 Mass. 1611 (2018).

10.   Moreover, the landlord informed the court at the January 9, 2017 hearing that she had spoken to the clerk and had “now ․ given you that stuff for [assembly of the record].”

11.   We note that embedding the landlord's intention not to use the transcripts in the appeal within her opposition to the motion to dismiss may not be best practice. However, under these specific facts, we conclude that it, along with her statement at the January 9, 2017 hearing, was sufficient to notify both the appellee and the court of her intention.

12.   The landlord's motion to remove the default is not in the record; thus, we do not know under which rule it was filed. Even if she cited the incorrect rule, we still review the motion under rule 55 (c)'s “good cause” standard. See Institution for Sav. in Newburyport & its Vicinity v. Langis, 92 Mass. App. Ct. 815, 821-822 (2018).

13.   When determining whether good cause exists, the court should consider seven factors: “(1) whether the default was willful; (2) whether setting it aside would prejudice the adversary; ․ (3) whether a meritorious defense is presented ․ (4) the nature of the defendant's explanation for the default; (5) the good faith of the parties; (6) the amount of money involved; [and] (7) the timing of the motion [to set aside the entry of default” (quotations omitted). Ceruolo v. Garcia, 92 Mass. App. Ct. at 189.

14.   Given our conclusion, we need not decide the standard to which the judge was referring when he said “reasonable excuse,” as that is not the proper standard under rule 55 (c) or rule 60 (b). See Ceruolo v. Garcia, 92 Mass. App. Ct. at 189 (“any doubt should be resolved in favor of setting aside defaults so that cases may be decided on their merits” [quotation omitted] ). Moreover, we also note that in deciding whether to remove the default, the judge made a determination as to the landlord's credibility regarding the merit of one of her defenses. Where a party moves to remove a default, our case law permits a judge to assess the party's accompanying affidavit for credibility. See Hermanson v. Szafarowicz, 457 Mass. 39, 43, 47 (2010) (judge “was not bound to accept the defendant's self-serving statement” that he “heard nothing about the case” following default judgment). However, we have found no Massachusetts case that addresses the permissibility of credibility findings with regard to meritorious defenses. We note that the Supreme Judicial Court has held that it was inappropriate for a judge to make credibility findings when evaluating a motion to intervene in an eviction. See Beacon Residential Mgt., LP v. R.P., 477 Mass. 749, 756 (2017) (“Any further determination of the credibility of her factual allegations ․ would be properly adjudicated at a later stage”). We also note that determining credibility at the default stage is prohibited in other jurisdictions. See United States v. Signed Personal Check No. 730 of Yurban S. Mesle, 615 F.3d 1085, 1094 (9th Cir. 2010) (“to satisfy the ‘meritorious defense’ requirement is to allege sufficient facts that, if true, would constitute a defense”; whether the allegation is true must be determined in later litigation); Hart v. Terry L. Hopkins, Inc., 588 A.2d 1187, 1190 (Me. 1991) (“The truth of the defense claimed by the moving party is not litigated at the motion hearing”); Sastry v. Sastry, 302 S.W.3d 264, 267 (Mo. Ct. App. 2010) (“The credibility of the evidence supporting the meritorious defense is determined after the default judgment is set aside at a subsequent trial on the merits, not at this stage).