MENDONCA v. MEDEIROS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Crisanto Mendonca, appeals from the order denying his motion to vacate a jury verdict from 1997, following a trial, in favor of the defendants in his personal injury claim arising from a motor vehicle collision. Different panels of this court have twice found no basis to disturb the 1997 jury verdict. See Mendonca v. Medeiros, 60 Mass. App. Ct. 1121 (2004) (affirming 2002 order denying plaintiff's request to revisit merits of earlier appeal); Mendonca v. Medeiros, 46 Mass. App. Ct. 1120 (1999) (affirming 1997 judgment). The Supreme Judicial Court has denied further appellate review. See Mendonca v. Medeiros, 441 Mass. 1107 (2004); Mendonca v. Medeiros, 429 Mass. 1109 (1999). On appeal, Mendonca contends he is entitled to a new trial because his counsel did not present a rebuttal case and breached a rule of professional ethics. We affirm.

We review a judge's denial of a motion for relief from judgment for an abuse of discretion. See Bird v. Ross, 393 Mass. 789, 791 (1985). Although Mendonca's motion did not set forth the procedural basis on which he relies, on appeal he maintains that the judgment should be set aside pursuant to Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974), which permits a judge to set aside a void judgment.³ We disagree. The motion, brought two decades after the supposed errors were said to have occurred, was not “made within a reasonable time.” Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). Furthermore, neither counsel's strategic choices nor alleged lapses in professional conduct render the judgment void. See Harris v. Sannella, 400 Mass. 392, 395 (1987) (judgment void if court lacked jurisdiction over parties, lacked jurisdiction over subject matter, or failed to provide due process of law).

Order denying motion to vacate jury verdict affirmed.

FOOTNOTES

3.   Mendonca's alternative argument that the judgment should be set aside pursuant to rule 60 (b) (3) fails because such a motion is untimely. See Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974) (“The motion shall be made within a reasonable time, and for reasons [1], [2], and [3] not more than one year after the judgment, order or proceeding was entered or taken”).