2018 Mass. App. Div. 121

December 8, 2017 - July 31, 2018

Appellate Division Southern District

Court Below: District Court, Hingham Division

Present: Hand, P.J., Kirkman & Finigan, JJ.

Kevin M. Flannigan for the plaintiff.

Stephen P. Rahavy for the defendants.

FINIGAN, J. This case stems from a commercial eviction proceeding. Plaintiff-appellee Minahan Family Trust ("Minahan") and defendants-appellants National Investigations, Inc. ("National Investigations") and Glenn Gillis ("Gillis") were parties to a written lease for property at 199 Weymouth Street, Rockland, Massachusetts. The lease was dated November 25, 2015 for a one-year term beginning December 1, 2015, and provided that any notices to the lessee "shall be deemed duly served" if sent by registered mail to the lessee at the address of the property.

Evidently, the relationship between the parties quickly soured, and by the spring of 2016, counsel for the parties were engaged in discussions concerning National Investigations's damage to the premises and failure to pay rent for the months of January through March of 2016. When efforts to resolve the matter failed, Minahan sent a fourteen-day notice to quit to the leased premises, as required by the lease, as well as to Gillis as registered agent for National Investigations at the address on record at the Massachusetts Secretary of State's office (National Investigations is a registered Massachusetts corporation). [Note 2] The notice to quit to the leased premises was returned as undeliverable as the addressee had moved and left no forwarding address; to the corporate address, a notice was left because no authorized recipient was available.

In May of 2016, Minahan began a summary process eviction proceeding by serving a summons and complaint and filing the same in the Hingham District Court. According to the return, the summons and complaint were served upon a "Junior Gillis, authorized to accept for Glenn Gillis & National Investigations, Inc." at the registered corporate office of National Investigations in Weymouth. The complaint included a trial date of June 2, 2016. When neither National Investigations nor Gillis appeared at the trial, default judgment entered in favor of Minahan.

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In an effort to collect upon the judgment, Minahan brought a supplementary process action against National Investigations and Gillis. In the face of that action, National Investigations and Gillis sought relief from the judgment under Mass. R. Civ. P. 60(b). That motion and a motion for reconsideration were denied by the trial judge, and this appeal followed.

In its motion for relief from judgment, the appellants relied upon three particular subsections of Mass. R. Civ. P. 60(b): subsection (3) ("fraud . . . , misrepresentation, or other misconduct of an adverse party"), subsection (4) ("the judgment is void"), and subsection (6) ("any other reason justifying relief from the operation of the judgment"). Denial of a motion under Rule 60(b) will be set aside only on a clear showing of an abuse of discretion. Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 227 (1979). See Schulz v. Black, 369 Mass. 958 (1975).

1. Rule 60(b)(3) misrepresentation or misconduct. We see nothing in the record before us that could be characterized as misrepresentation or misconduct on the part of the appellee. For a party to prevail under Rule 60(b)(3), which permits relief from judgment for fraud, misrepresentation, or other misconduct of an adverse party, it must demonstrate "the most egregious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated." Winthrop Corp. v. Lowenthal, 29 Mass. App. Ct. 180, 184 (1990), quoting United States v. International Tel. & Tel. Corp., 349 F. Supp. 22, 29 (D. Conn. 1972). In essence, this case is a straightforward attempt by a commercial landlord, acting through counsel, to regain possession and establish damages after nonpayment of rent and damage to the leased premises. The controversy, to the extent one exists, turns on whether proper notice was given and whether Gillis was a party to the lease. There is nothing in the record to suggest that counsel for Minahan engaged in chicanery that would rise to the level of that contemplated by Rule 60(b)(3). See Pina v. McGill Dev. Corp., 388 Mass. 159, 165 (1983).

2. Rule 60(b)(4) void judgment. We are mindful that this controversy arose in a commercial setting, where parties are presumed to hold some level of sophistication. Rockport Schooner Co., Inc. v. Rockport Whale Watch Corp., 58 Mass. App. Ct. 910, 911 (2003) ("[W]e note that the present dispute concerns a commercial lease between business entities, who are in a better position to understand and protect their rights than a residential tenant might be."). The concept of a void judgment from which a party is entitled to relief pursuant to Rule 60(b)(4) is narrowly construed. Harris v. Sannella, 400 Mass. 392, 395 (1987). A judgment is void only when entered without due process of law, or by a court that lacks either subject matter jurisdiction or personal jurisdiction over the parties. Bowers v. Board of Appeals of Marshfield, 16 Mass. App. Ct. 29, 32 (1983). The appellants argue that they were entitled to Rule 60(b)(4) relief on the basis that the default judgment was void for lack of personal jurisdiction due to lack of proper service of both the notice to quit and the summons and complaint. The lease merely provided that any notices made pursuant to the lease were "duly served" if sent by registered mail to the leased premises. The record reflects Minahan did in fact send the notice in such a fashion. Nothing in the lease obligates the lessor to await the return of proof of delivery before commencing a summary process

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action; Minahan merely had to wait the requisite fourteen days, which it did. See G.L. c. 186, ยง 11A, which provides that a commercial landlord may terminate a written lease for the commercial tenant's nonpayment of rent either "(i) in accordance with the provisions of the lease or (ii) in the absence of such lease provisions, by at least fourteen days notice to quit, given in writing to the tenant." We are equally unpersuaded by National Investigations's argument that the summons and complaint were not properly served upon it. The record reflects that Minahan engaged the services of a constable and provided him with the registered address of National Investigations as reflected in the records of the Secretary of State's office. (Presumably, Minahan by that point had abandoned the idea of attempting service at the leased premises, since the tenant had vacated the space without leaving a forwarding address.) After hearing, the trial judge apparently accepted the service made by the constable on someone acting on National Investigations's behalf. As between the parties, the deputy's return of service is conclusive as to matters properly the subject of a return by him. United Drug Co. v. Cordley & Hayes, 239 Mass. 334 (1921). As the return recites proper service, the judgment is not void as against National Investigations.

The judgment against Gillis requires a separate analysis. As an individual defendant, Minahan was obligated to serve Gillis in accordance with Mass. R. Civ. P. 4(d)(1), "by delivering a copy of the summons and complaint to him personally; or by leaving copies thereof at his last and usual place of abode; or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by statute to receive service of process." The summons and complaint bore only the corporate address of National Investigations, and the constable's return makes no mention of making service by any of the methods allowed by Rule 4(d)(1). The return refers only to a "Junior Gillis," but the record is silent regarding any evidence that such a person was authorized "by appointment or by statute" to accept service for Gillis. Because the return of service as it relates to Gillis was insufficient on its face and Minahan advanced no other evidence demonstrating that Gillis was properly served, Gillis's motion to vacate the default judgment should have been allowed. See New England Die Cutting, Inc. v. Charles F. O'Neil, 1997 Mass. App. Div. 6, 7-8. [Note 3]

3. Rule 60(b)(6) extraordinary circumstances. A Rule 60(b)(6) motion must be predicated on a showing of extraordinary circumstances, Artco v. DiFruscia, 5 Mass. App. Ct. 513, 517 (1977), for which relief would be unavailable under Rule 60(b)(1) through (5). There has been no clear showing that the judge abused his discretion in denying the motion for relief from judgment in so far as it was predicated on Rule 60(b)(6). Trustees of the Stigmatine Fathers, Inc. v. Secretary of Admin. & Fin., 369 Mass. 562, 565-566 (1976); Nolan v. Weiner, 4 Mass. App. Ct. 800 (1976). The appellants' brief raises no ground for relief other than ones that were brought under Rule 60(b)(3) and (4), discussed above.

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The trial court's denial of National Investigations's motion for relief from judgment is affirmed; the trial court's denial of Gillis's motion is reversed, and the default judgment as against Gillis is vacated.

So ordered.


[Note 1] Glenn Gillis.

[Note 2] The notices were sent by certified mail through the United States Postal Service, which we view as equivalent to "registered."

[Note 3] In light of our decision, we do not reach Gillis's argument that he did not sign the lease in an individual capacity but only as an officer of National Investigations. See Commonwealth Bank & Trust Co. v. Plotkin, 371 Mass. 218, 220 (1976) (burden is on signer to disprove liability where signature appears in unqualified capacity).