2017 Mass. App. Div. 171

July 21, 2017 - November 8, 2017

Appellate Division Southern District

Court Below: District Court, Barnstable Division

Present: Welch, Finnerty & Kirkman, JJ.

Seth G. Roman for the plaintff.

E. Pamela Salpoglou for the defendant.

FINNERTY, J. The suit by Geralda Torres Belarmindo ("Belarmindo") against Choice Auto Center, LLC ("Choice"), regarding an allegedly defective motor vehicle she had purchased for her son, was dismissed when Belarmindo failed to answer interrogatories timely before application for final judgment pursuant to Mass. R. Civ. P. 33(a)(4) was filed with the court. Belarmindo here appeals the denial of her Mass. R. Civ. P. 60(b)(1) motion to vacate the judgment of dismissal.

When Choice answered the complaint, it also served interrogatories upon Belarmindo. Belarmindo having failed to answer the interrogatories within the forty-five days provided under the rule, Choice served its final request for answers under Mass. R. Civ. P. 33(a). When no answers were received after forty more days had passed, Choice served and filed its application for final judgment for relief and dismissal. That application was docketed by the trial court on December 19, 2016. The trial court scheduled a hearing on the application for final judgment for relief and dismissal, which was held on February 17, 2017. [Note 1] Prior to that hearing, on January 19, 2017, Belarmindo served her answers to interrogatories.

At the February 17, 2017 hearing, the court ordered the entry of judgment for Choice on the application for final judgment for relief and dismissal. That judgment entered on February 21, 2017. Thereafter, Belarmindo filed a motion to vacate judgment of dismissal, which was heard on March 24, 2017 and denied.

Belarmindo does not contest the trial court's allowance of the application for final judgment (the subject of the February 17, 2017 hearing). She concedes that the action of the court was not discretionary and that pursuant to Mass. R. Civ. P. 33(a)(6), it was the ministerial obligation of the clerk to dismiss the case upon receipt of the final application. Pursuant to Rule 33(a)(3), answers to interrogatories must be served within forty-five days after service of the interrogatories. Upon failure to serve timely answers, the interrogating party may serve a final request for answers. Answers (or an objection) must be served within thirty days from the service of the final request. If no answers have been served within forty days after service of the final request, the interrogating party may file an application for a final

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judgment for relief or dismissal. [Note 2] Here, Choice complied with the rules and, upon its filing of the application for final judgment for relief and dismissal, it was entitled to the dismissal of the complaint and judgment in its favor.

Belarmindo argues that the trial court abused its discretion in denying her motion to vacate the judgment of dismissal pursuant to Mass. R. Civ. P 60(b) in that relief should have been granted where a "movant's mistake or neglect" resulted in the "excessive, unduly harsh, or unreasonable" sanction of dismissal. Gargano v. Stop & Shop Supermarket Co., 2006 Mass. App. Div. 182 , 184.

Rule 60(b)(1) of the Mass. R. Civ. P. allows relief for "mistake, inadvertence, surprise or excusable neglect." The party seeking relief for excusable neglect bears the burden of justifying failure to avoid the mistake or inadvertence. The reasons must be substantial. See Reporters' Notes to Mass. R. Civ. P. 60 (1973). A motion under this rule is addressed to the trial judge's discretion, and we here review the judge's denial for an abuse of discretion. "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, see Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008) (citation omitted), such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169 , 185 n.27 (2014).

Belarmindo gave as the reason for not timely answering the interrogatories that her son, for whom she had purchased the car, was in Brazil for two and a half months and she needed him in order to answer the interrogatories. Choice argued that it would have been prejudiced by allowance of the relief as the subject motor vehicle was no longer available. Further, it argued that Belarmindo's claims were not meritorious, and that even with the son's extended absence, Belarmindo had sufficient time to answer before the application for final relief was filed.

No written decision or findings were issued on the denial of the motion to vacate, nor do we have the benefit of the hearing transcript, but the record shows that each party presented written arguments setting forth the relevant law and their respective positions, including the factors set forth in Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426 , 430-431 (1979).

The well-written opinion in Gargano, supra, iterates the principles of deference to the motion judge as well as the burden resting with the party seeking relief. Id. at 183. [Note 3]

We cannot say, based on the record before us, that the motion judge abused his discretion in denying the motion. The appeal is dismissed. We decline to assess costs as requested by Choice.


[Note 1] This hearing was not necessary because, upon application, the clerk "shall enter an appropriate judgment" (emphasis added). Mass. R. Civ. P. 33(a)(6).

[Note 2] Pursuant to Mass. R. Civ. P. 5(d)(2), interrogatories and answers to interrogatories are not filed with the court, except upon order of the court or on motion. The final request for answers is not filed, but served. The final application for judgment is filed (and, of course, served). The upshot of Rule 33 is that if the answers are served on the interrogating party before the final application is filed with the court, the answering party will not be automatically defaulted or have its suit dismissed.

[Note 3] Gargano is the other side of the coin on this issue, as in that case, the appellant challenged the court's allowance of a motion for relief.