RATEB v. CARLTON GARDENS CONDOMINIUMS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

With leave of a single justice of this court, Carlton Gardens Condominiums (Carlton) appeals from an interlocutory order allowing Nevine Rateb's motion for reconsideration and vacating the judgment dismissing her negligence action against Carlton.³ We affirm.

We will not set aside a ruling on a motion to vacate, pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), absent a clear showing of an abuse of discretion.⁴ See Atlanticare Med. Ctr. v. Division of Med. Assistance, 485 Mass. 233, 247 (2020). We discern none here.

On appeal, Carlton maintains that Rateb failed to satisfy the preconditions for relief under rule 60 (b) (6). We are not persuaded. Relief under rule 60 (b) (6) may be granted for reasons that do not fall within other subdivisions of the rule, and that rise to the level of “extraordinary circumstances” (quotation and citation omitted). Owens v. Mukendi, 448 Mass. 66, 71 (2006). In assessing a rule 60 (b) (6) motion, a judge may consider “whether the moving party has a meritorious claim or defense ․ and whether the substantial rights of the parties in the matter in controversy will be affected by granting the motion” (quotations and citation omitted). Id. at 72. Although, in the interest of finality, the rule should be applied with an “extremely meag[er] scope” (quotation and citation omitted), DeMarco v. DeMarco, 89 Mass. App. Ct. 618, 621 (2016), we also “keep in mind the purpose of the rule to accomplish substantial justice,” Freitas v. Freitas, 26 Mass. App. Ct. 196, 198 (1988). See Parrell v. Keenan, 389 Mass. 809, 815 (1983), quoting Klapprott v. United States, 335 U.S. 601, 615 (1949) (“In essence, rule 60 [b] [6] vests ‘power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice’ ”).

Here, we discern no abuse of discretion in the judge's conclusion that extraordinary circumstances were present that justified relief from the judgment under rule 60 (b) (6). In her decision and order, the judge carefully detailed the procedural history of two cases pursued by Rateb's attorney,⁵ and the circumstances thereafter that delayed the filing of the motion to vacate.⁶ See Owens, 448 Mass. at 71 (all facts should be considered in deciding motion). The facts here need not be viewed as a simple case of negligence or gross neglect by Rateb's attorney, as portrayed by Carlton. The judge could reasonably have concluded that the circumstances faced by Rateb's attorney, including two separate incapacitating medical problems and an extended overseas incarceration, were extraordinary. Given the combination of highly unusual circumstances, the judge could have found that the situation did not fit “neatly or completely” within the parameters of rule 60 (b) (1) (covering “mistake, inadvertence, surprise, or excusable neglect”). Owens, supra at 74. Accordingly, based on the reasonable conclusion that “something more” than one of the four grounds of rule 60 (b) (1) was in play, the judge had discretion to grant the motion pursuant to rule 60 (b) (6). See Owens, supra at 73; Chavoor v. Lewis, 383 Mass. 801, 807 (1981). See also Klapprott, 335 U.S. at 613-614 (incarceration and illness were “compelling reasons” requiring consideration under Federal Rule of Civil Procedure 60 [b] [6] ).⁷ Carlton directs us to no case requiring a finding that the unique circumstances “squarely” fit the mold of rule 60 (b) (1). See, e.g., Kennedy v. Beth Israel Deaconess Med. Ctr., Inc., 73 Mass. App. Ct. 459, 467 (2009).

To the extent that Carlton suggests that the explanation is not worthy of belief, the judge credited Rateb's attorney, as she was entitled to do. See Chavoor, 383 Mass. at 807. Moreover, the judge found that Rateb demonstrated, through the record, that her claim appeared to have merit.⁸ See Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 430 (1979) (considering rule 60 [b] [1] ruling). If the motion to vacate had not been granted, Rateb, though entirely blameless, would have been deprived of her day in court. See Adoption of Eugene, 415 Mass. 431, 437 (1993) (courts satisfied of movant's good faith have distinct preference for allowing trial on merits). Carlton, on the other hand, failed to even allege any prejudice. The judge could properly have concluded that the interests of justice trumped the interests of finality.

Rateb has requested an award of attorney's fees and double costs pursuant to Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019). Although we were ultimately not persuaded by Carlton's arguments, they are certainly not so frivolous as to warrant sanctions. See Marabello v. Boston Bark Corp., 463 Mass. 394, 400 (2012), and cases cited.

The September 10, 2019, order allowing Rateb's motion for reconsideration and vacating the judgment dismissing the complaint is affirmed.

So ordered.

Affirmed

FOOTNOTES

3.   The complaint apparently contains a misnomer; Carlton informs us that the proper name of the organization of unit owners is Carlton Garden Condominium Trust.

4.   Rateb's initial motion to vacate, though far from clear, was brought under Mass. R. Civ. P. 60 (b) (1)-(6), 365 Mass. 828 (1974). In her initial ruling, the judge denied the motion as untimely under rule 60 (b) (1), but did not address rule 60 (b) (6). On reconsideration, she allowed the motion under rule 60 (b) (6).

5.   Rateb filed this case in the Middlesex County Superior Court. Carlton raised improper venue as an affirmative defense. Judgment subsequently entered on February 13, 2018, due to Rateb's failure to comply with court orders. Instead of moving to vacate the February 13, 2018, judgment, Rateb filed a second negligence action against Carlton in the Worcester County Superior Court. On January 22, 2019, a judge allowed Carlton's motion to dismiss the Worcester action, agreeing with Carlton's defense of claim preclusion. The memorandum of decision and order directed Rateb's attorney to seek a remedy under rule 60 (b) in the Middlesex action. In February 2019, upon learning of that decision, Rateb's attorney, a solo practitioner, managed to get a motion to vacate submitted in the Middlesex action by dictating the contents of one to his son from a prison payphone in Greece. That motion was submitted just twelve days after the expiration of the one-year limitations period of rule 60 (b) (1). It was denied based upon noncompliance with Rule 9A of the Rules of the Superior Court (2018). It was then refiled and denied as untimely under rule 60 (b) (1).

6.   The judge found that after Rateb's attorney suffered a minor stroke and was hospitalized in January 2019, he travelled to Greece to reduce his stress. In Greece, he was incarcerated for approximately forty days on a warrant for failure to appear for a statement in a criminal matter. Following his release and return to the United States on or about April 6, 2019, he was diagnosed with an aneurysm and placed on medical restrictions for thirty days. He then filed the underlying motion for reconsideration on May 14, 2019. On appeal, Carlton has not challenged the judge's finding that Rateb's motion was brought within a “reasonable time” as required by rule 60 (b) (6). See Owens, 448 Mass. at 74.

7.   Massachusetts courts generally apply the same construction to our State procedural rules as that given to their Federal counterparts. See Parrell, 389 Mass. at 815 n.8.

8.   We are not persuaded by Carlton's contention that Rateb's showing of a meritorious claim was deficient. In her complaint, Rateb alleged that Carlton was responsible for maintaining the walkway outside her apartment and that Carlton knew or should have known about the unsafe condition of the walkway (i.e., an unnatural accumulation of ice). Rateb's attorney provided support for the claim in his pleadings and his affidavits. For example, Rateb's attorney averred that the locus of Rateb's accident was “ripe with what appears to be improper water run off pipes and landscaping that results in water run off accumulation,” and that Rateb's medical records established that she sustained serious and permanent injuries as a result of her slip and fall. If proved, these allegations would support liability. Nothing more was required.