CARMEN M. FIGUEROA v. AMJAD HUSSAIN and another [Note 1]

HADLEY, P.J. This action was commenced in the Worcester District Court in June, 2012. The plaintiff, Carmen M. Figueroa, alleges that in October, 2010, she was a tenant living in residential property owned and controlled by the defendants, Amjad Hussain ("Hussain") and Ameeta Walia. The plaintiff asserts that mold in the residence caused her to suffer personal injury and to incur medical expenses. The defendants filed an answer in August, 2012. Although the filing of an answer and counterclaims is not reflected on the docket, the record on appeal indicates that the defendants filed counterclaims with their answer and that their counterclaims remain unresolved.

On April 10, 2013, each defendant, through counsel, propounded a set of interrogatories to be answered by the plaintiff. The plaintiff failed to respond within forty-five days as required under Mass. R. Civ. P. 33, and there is no indication in the record that the plaintiff requested additional time to provide answers to the two sets of interrogatories. On August 22, 2013, pursuant to Mass. R. Civ. P. 33(a)(3), each of the defendants served a final request for answers upon the plaintiff, warning that the defendants could apply for final judgment if answers were not provided. No answers were received from the plaintiff, and, again, there is no evidence in the record that the plaintiff or her attorney sought additional time to respond from the defendants or the court.

On October 2, 2013, the defendants filed an application for final judgment pursuant to Mass. R. Civ. P. 33(a)(4). On October 15, 2013, plaintiff's counsel mailed out answers to interrogatories propounded by Hussain. On October 16, 2013, judgment entered, and the plaintiff's claims were dismissed for her failure to answer interrogatories in a timely manner.

On October 28, 2013, the plaintiff filed a motion to vacate the judgment of dismissal that had entered against her. In support of this motion, the plaintiff provided an affidavit of counsel stating that sometime after suit was filed, the plaintiff moved to Connecticut and that it was difficult for the plaintiff's attorney to contact her. The affidavit stated that mailings that were sent to the plaintiff at her previous address were returned by the United States Postal Service. In addition, the plaintiff attached

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a copy of her answers to the interrogatories propounded by Hussain. In her answers, the plaintiff represented that shortly after she moved into the rental property, she "noticed mold on the bathroom walls, which caused [her] to get sick." She stated that she "informed the landlord, but they never cleaned it up." She also stated that she "did not see any mold in the apartment prior to moving in."

A hearing was held on November 6, 2013, and the motion to vacate the judgment was denied on November 27, 2013. On December 30, 2013, the plaintiff filed a motion for reconsideration. A hearing was held on that motion on January 15, 2014, and that motion was denied on January 22, 2014.

The plaintiff filed a notice of appeal on January 31, 2014, but neglected to pay the filing fee required to process the appeal. That fee was subsequently paid, and the appeal was docketed on February 7, 2014. The defendants then filed a motion to strike the plaintiff's notice of appeal, asserting that because February 7, 2014 was more than ten days after both the November 27, 2013 denial of the motion to vacate and the January 22, 2014 denial of the motion for reconsideration, the appeal was untimely. A hearing was held on February 24, 2014, and on March 19, 2014, a judge denied the defendants' motion to strike the appeal.

At the outset, we note that the plaintiff's appeal is technically premature. As noted above, the record on appeal indicates that the defendants' counterclaims remain unresolved, and there is no record of the entry of a Mass. R. Civ. P. 54(b) separate and final judgment in favor of the defendants on the plaintiff's claims. Broadly speaking, the policy against piecemeal litigation precludes appellate review until after the entry of a final judgment. We note, however, that the civil rules are intended to "facilitate adjudication on the merits," not needlessly hamper it. Aroesty v. Cohen, 62 Mass. App. Ct. 215, 218 n.5 (2004), quoting Standard Register Co. v. Bolton-Emerson, Inc., 35 Mass. App. Ct. 570, 574 (1993). Here, review of the denial of the plaintiff's motion for relief will not offend the policy against interlocutory appeals, as the dismissal of the plaintiff's claims for the plaintiff's discovery violations was the motion judge's ultimate disposition of those claims. Moreover, as the parties have fully briefed and argued the issues at the heart of the judge's rulings, we are not inclined to dismiss the appeal on technical grounds and return the case to the trial court, only to compel the parties to begin the appellate process again. We therefore exercise our discretion to address the plaintiff's appeal.

With regard to the defendants' argument concerning the timeliness of the plaintiff's notice of appeal, our review of the record below indicates that the defendants did not file a notice of appeal with regard to the motion judge's denial of their motion to strike, as required pursuant to Dist./Mun. Cts. R. A. D. A. 3 and 4. We therefore do not have the same discretion to consider this issue, and we do not address it at this time.

We turn to the parties' arguments concerning the denial of the plaintiff's motion to vacate the order of dismissal for failure to answer interrogatories. As both sides recognize, the denial of a motion for relief from judgment will not be reversed in the absence of a clear showing of abuse of judicial discretion. Wang v. Niakaros, 67 Mass. App. Ct. 166, 169 (2006). The plaintiff asserts that the denial of her Mass. R. Civ. P. 60(b)(1) motion was an abuse of discretion because the trial judge did not apply the factors set out in Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426 (1979). In Berube, the Appeals Court provided guidelines for the disposition of Rule 60(b)(1) motions. They are: "(1) whether the offending party has acted promptly

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after entry of judgment to assert his claim for relief therefrom; (2) whether there is a showing either by way of affidavit, or otherwise apparent on the record, that the claim sought to be revived has merit; (3) whether the neglectful conduct occurs before trial, as opposed to during, or after the trial; (4) whether the neglect was the product of a consciously chosen course of conduct on the part of counsel; (5) whether prejudice has resulted to the other party; and (6) whether the error is chargeable to the party's legal representative, rather than to the party himself." Id. at 430-431.

In this instance, we do not know whether the plaintiff presented all of these arguments to the motion judge, as we do not have a transcript of the hearing. At the same time, we observe that the plaintiff sought relief promptly after the entry of judgment. As to whether the claim the plaintiff sought to revive had merit, as noted above, the plaintiff represented that she did not notice any mold in her apartment before she moved in; that she noticed mold on the bathroom walls after moving in; that she informed the landlord of the mold, but he did not remove it; and that the mold made her ill. These bare facts make it very difficult to determine whether the plaintiff's claims have merit, as they say nothing about the cause of the alleged mold and correspondingly whether the defendants had any responsibility for causing it or taking remedial measures to address it.

Continuing to address the Berube factors, we note that the plaintiff's neglectful conduct did occur before trial. As to whether the neglectful conduct was the product of a consciously chosen course of conduct on the part of the plaintiff's attorney, the plaintiff, through counsel, stated in a conclusory fashion that she failed to answer interrogatories due to "mistake, inadvertence, and/or excusable neglect." Counsel explained that the plaintiff relocated to Connecticut, apparently without advising her attorney, and that this made it difficult for her attorney to secure her discovery responses. The plaintiff's attorney indicated that mail sent to the plaintiff at her former Massachusetts address was returned. Neither the plaintiff nor her attorney, however, provides any information as to what other efforts were made to locate and contact the plaintiff over a six-month period, and no explanation is provided as to why the plaintiff's attorney did not seek an extension of time from opposing counsel or the court when confronted with these circumstances.

On the subject of whether prejudice resulted from the plaintiff's failure to provide discovery, the defendants put forth an exceedingly weak argument, asserting only that they would "be forced to endure the cost and ordeal of a trial" and the "pressure" this would entail should the dismissal order be vacated.

Finally, as to whether the error is chargeable to the plaintiff's legal representative, rather than to the plaintiff herself, reasonable minds may differ. On the one hand, the plaintiff reportedly moved out of the Commonwealth after suit was commenced, apparently without advising her attorney of how she could be contacted. On the other hand, the motion judge was provided with little evidence as to what efforts the plaintiff's attorney made to contact his client, and, once again, no effort was made to secure additional time to respond to the outstanding discovery.

When we review the above circumstances in the context of the factors set out in Berube, we must give deference to the motion judge's exercise of discretion, and we consider that the motion judge "is in the best position to balance the competing claims of fairness to the litigants and case-flow efficiency presented by" a Rule 60(b)(1) motion. Scannell v. Ed Ferreirinha & Irmao, Lda., 401 Mass. 155, 158 (1987). "[I]t

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is plainly not an abuse of discretion simply because a reviewing court would have reached a different result." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Against this legal framework, we find that the application of the Berube factors in this case presents a mixed result, and we conclude that the motion judge did not make "a clear error of judgment" in weighing these factors "such that the decision falls outside the range of reasonable alternatives." Id., quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).

Consequently, we hold that it was not an abuse of discretion to deny the plaintiff's motion to vacate the order of dismissal and her motion for reconsideration of that decision. The motion judge's decisions are therefore affirmed, and this case is returned to the Worcester District Court for further action with regard to the defendants' counterclaims.

So ordered.