SANINOCENCIO v. PIERCE MANDELL PC (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This appeal stems from one of several lawsuits Nellie Saninocencio has brought in connection with an injury she sustained as a result of falling on snow and ice outside her unit at Bradford Village, a condominium complex.³ In a 2012 negligence action (underlying action), Saninocencio unsuccessfully sued her condominium owner, property manager, and landscape contractors (collectively, the condo defendants).⁴ On the conclusion of that litigation, Saninocencio brought this suit against the attorneys and law firms (collectively, defendants or attorney defendants) who had represented the condo defendants in the underlying action. The attorney defendants filed a motion to dismiss under Mass. R. Civ. P. 12, 365 Mass. 754 (1974), which was allowed. A judgment dismissing the complaint with prejudice entered, followed shortly thereafter by an order denying Saninocencio's motion for reconsideration. Saninocencio appeals from the judgment, the order denying her motion for reconsideration, and a protective order to stay discovery while the motion to dismiss was pending.⁵ For the reasons explained below, we affirm the dismissal of the complaint and related orders.

Background.⁶ The key relevant event in the underlying action is the pretrial conference. In April 2015, a Superior Court judge ordered the parties to file a jointly prepared pretrial conference memorandum (PTC memo) three business days prior to the pretrial conference. In the memorandum, the parties were required to disclose any expert witness they planned to call at trial.⁷ After being postponed twice, the conference was eventually held on June 17, 2015. The parties executed and jointly filed a PTC memo directly with the judge at the conference. The memorandum had been e-mailed to Saninocencio's attorney the day before the conference.⁸

On the same day that the executed PTC memo was filed with the judge, Saninocencio's attorney filed an unexecuted PTC memo in the clerk's office. The two memoranda were similar but not identical. First, the executed memorandum included a proposal to bifurcate the trial and, second, it included the identification of a potential expert.

At a later point, with the consent of Saninocencio's counsel, the trial judge bifurcated the case with respect to the issues of liability and damages. A jury subsequently returned a verdict against her, and in favor of the condo defendants, on the liability issue. After Saninocencio's motion for a new trial was denied, judgment entered on January 11, 2016.

Saninocencio appealed from the judgment to this court, where she argued that the decision to bifurcate the trial was improper, despite her counsel's consent, because it was the product of a fraud on the court perpetrated by the condo defendants. The essence of Saninocencio's argument was that the executed PTC memo filed with the judge who presided over the pretrial conference was a forgery. We dismissed the appeal as untimely, but stated that “even assuming the appeal were properly before us,” we would conclude that not only was the decision to bifurcate well within the trial judge's discretion, but that her attorney's consent precluded a posttrial challenge. We further stated that Saninocencio's contention that the bifurcation was the product of a fraud on the court was unsupported, and that any alleged egregious conduct by the condo defendants was insufficient to constitute fraud. See Saninocencio vs. Bradford Village Condo Trust, Appeals Court No. 16-P-1265 (Sept. 8, 2017). A motion for rehearing and an application for further appellate review to the Supreme Judicial Court were subsequently denied.

In March 2018, about five months after the conclusion of the underlying action, Saninocencio filed the instant action against the attorney defendants that had represented the condo defendants in the trial and appeal of the underlying action. Saninocencio again argues that the bifurcation decision in the underlying action was a result of the defendants allegedly filing a forged PTC memo, which she claims constitutes a fraud on the trial and appellate courts. She further asserts that the decision to bifurcate was improper because it rested on an emergency motion by the defendants that contained misrepresentations, and ultimately prevented her from presenting evidence of her injuries to the jury. Based on these claims, Saninocencio sought to vacate the judgment entered in the underlying action.

The defendants filed a motion to dismiss, which was allowed by the motion judge on his determination that the alleged newly discovered evidence Saninocencio proffered did not qualify as “new evidence” under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), and that the substance of Saninocencio's allegations in the current action “mirror perfectly” her previously-denied posttrial motion for a new trial and appeal in the underlying action. The motion judge dismissed the complaint with prejudice, and Saninocencio appeals.

Discussion. We review the allowance of a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in the nonmoving party's favor. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). The ultimate inquiry is whether Saninocencio alleged facts “so as to plausibly suggest an entitlement to relief.” Baker v. Wilmer Cutler Pickering Hale & Dorr, LLP, 91 Mass. App. Ct. 835, 842 (2017).

Saninocencio's current complaint asserts claims for fraud on the trial court pursuant to Mass. R. Civ. P. 60 (b) (6) (count I); fraud on the Appeals Court (count II); and fraud on the Supreme Judicial Court (count III). “A ‘fraud on the court’ occurs where it can be demonstrated, clearly and convincingly, that a 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.” Mt. Ivy Press, L.P. v. Defonseca, 78 Mass. App. Ct. 340, 349 (2010), quoting Rockdale Mgt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994). There was no such clear and convincing evidence of an “unconscionable scheme” shown here.

Saninocencio's claims of a fraud on the court rest essentially on two allegations. First, she asserts that the executed PTC memo is a forgery, based on the allegation that the defendants added information to it without her knowledge, and then misrepresented it to the judge presiding over the pretrial conference as a “jointly prepared and agreed upon legal document.”⁹ Saninocencio makes this claim despite acknowledging that a draft of the alleged forged memorandum was e-mailed to her attorney the day before the pretrial conference, and does not contest that her attorney executed it. She thus fails to address the fact that she could have discovered the alleged fraud through reasonable diligence. Indeed, her complaint provides no additional allegations beyond the conclusory and speculative assertion that the executed PTC memo was a forgery. Such an allegation, even when taken as true, must still be sufficient “to raise a right to relief above the speculative level” (quotation omitted). Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Saninocencio's allegations fail in this regard. See Paternity of Cheryl, 434 Mass. 23, 36 (2001) (fraud only demonstrated by “the most egregious conduct involving a corruption of the judicial process itself” [quotation omitted] ).

The conduct she complains of does not satisfy the onerous standard of having committed a fraud on the court. Her attorney was given an opportunity to review the allegedly forged PTC memo, and elected to execute it the following day. The fact that the defendants did not explicitly point out the proposed changes in this version does not make it a forgery.¹⁰ “A party's nondisclosure to an adverse party ․ or 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).” Paternity of Cheryl, 434 Mass. at 36.

Saninocencio further claims that the defendants committed a second fraud on the court through their motion to bifurcate. She alleges that the motion (a) contained misrepresentations regarding expert witnesses that were intended to induce, and which did induce, the judge to bifurcate the case;¹¹ and (b) was intentionally designed to be filed late in order to gain an unfair advantage on the morning of the trial, and to bar her evidence.

Saninocencio's allegations regarding the defendants' intentions to mislead the judge, or the impact of the defendants' motion on the judge's decision-making are, again, conclusory, speculative, and contradicted by the fact that she assented to the bifurcation on the first day of trial. Thus, such allegations concerning intent and impact do not plausibly suggest an entitlement to relief, resting instead on “ ‘naked assertions’ devoid of ‘further factual enhancement.’ ” Doe v. American Guar. & Liab. Co., 91 Mass. App. Ct. 99, 105 (2017), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

On its face, the defendants' filing of a motion to bifurcate was not improper, nor was it untimely. The motion was filed three weeks before trial, and Saninocencio had an opportunity to both file an opposition and to be heard (thus mitigating any adverse effects from the defendants' failure to comply with any previous orders). Thus, any allegations as to the defendants' nefarious intentions with respect to the filing itself, or the timing of the filing, do not plausibly state a claim for relief supporting a fraud on the court.

At bottom, a plausible inference cannot be drawn that the defendants committed the fraud as alleged in Saninocencio's complaint. Saninocencio's allegations do not plausibly suggest that she will be able to “clearly and convincingly” demonstrate that the defendants “sentiently set in motion some unconscionable scheme” to deceive the trial court (or any of the appellate courts), or which unfairly hampered her ability to prosecute her case. Rockdale Mgt. Co., 418 Mass. at 598. She has failed to demonstrate any misconduct on the part of the defendants that would warrant relief under rule 60 (b) in the circumstances of this case.

Saninocencio's remaining arguments, concerning her objections related to the protective order, the motion to recuse (which, again, does not appear in her notice of appeal), and her due process question, are either moot or premised on the same central assertion involving the alleged forged PTC memo and the motion to bifurcate. Given the result we reach, we need not address these issues, or other arguments raised by the defendants. “Other points, relied on by [the parties] but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).¹²

Judgment affirmed.

Orders dated August 21, 2018, and January 9, 2019, affirmed.

FOOTNOTES

3.   The spelling of Saninocencio's name appears inconsistently as either Saninocencio or San Inocencio. We adopt the spelling used in the complaint in this action.

4.   Saninocencio also filed a separate medical malpractice action against her treating physician a year later, which was dismissed for lack of evidence.

5.   Saninocencio also references an appeal from a denial of a motion to recuse, but there is no notice of appeal from this order on the record before us.

6.   We consider here the allegations set forth in the complaint in the action before us, supplemented by facts drawn from documents that are a part of the public record in the underlying proceeding. See Reliance Ins. Co. v. Boston, 71 Mass. App. Ct. 550, 555 (2008) (in evaluating motion brought pursuant to Mass. R. Civ. P. 12 [b] [6], court may take judicial notice of court records in related proceedings).

7.   The order also required Saninocencio to state in the memorandum her intent to file a Daubert-Lanigan motion to preserve her right to challenge the admissibility of any disclosed expert, and to attach a motion to depose any disclosed expert so the judge could hear it on the same day of the conference. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Commonwealth v. Lanigan, 419 Mass. 15 (1994).

8.   Saninocencio does not challenge the authenticity of this e-mail or that a copy of the PTC memo that was executed the next day was attached to it; in fact, she admits receipt of the e-mail and the “altered” memorandum in her brief, and includes the e-mail in the record on appeal. Accordingly, we will consider the e-mail not to be outside the complaint. See Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998).

9.   Saninocencio claims the forged memorandum was planted by the defendants in the record for the purposes of deceptively inducing the trial judge to think they had an expert witness prepared to testify at trial. She contends this was done to prevent her from filing a Daubert-Lanigan motion or deposing the expert, which she claims would have prevented the defendants from filing a motion to bifurcate the trial.

10.   Saninocencio presumes the defendants' intent without alleging any evidence in support. Even if the defendants' actions were, in fact, strategic, such conduct does not rise to the level of a fraud on the court, and underscores the importance of opposing counsel thoroughly reviewing documents before executing them.

11.   Thereby preventing her from presenting her claims to the jury, and to deny her motion for a new trial.

12.   Saninocencio's request for appellate attorney's fees and costs is denied, and the defendants' request for fees pursuant to Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019), is also denied.