JAMES DeVINCENT [Note 1] v. SANDRA MARIE STRAWBRIDGE [Note 2]

CUNIS, J. This postforeclosure summary process action involves property located at 11 Woodland Road in Wellesley, Massachusetts ("property"). After trial, a Dedham District Court judge entered judgment for possession to the plaintiff, James DeVincent ("DeVincent"). On appeal, the defendant, Sandra Marie Strawbridge ("Strawbridge"), argues that the trial judge "abused his discretion" in not considering her claim to superior title to the property. Her claim rests largely upon her assertion that title to the property had not been definitively established when DeVincent filed the summary process action, because her application for further appellate review to the Supreme Judicial Court in the underlying foreclosure matter, Strawbridge v. Bank of N.Y. Mellon, 91 Mass. App. Ct. 827 (2017), [Note 3] was still pending at the time DeVincent filed the action. Strawbridge contends that the District Court judge violated Mass. R. Civ. P. 62(d), [Note 4] which mandates the stay of execution upon a judgment while an appeal is pending.

At trial, DeVincent testified that he, as sole trustee of the 11 Woodland Realty Trust, purchased the property for $800,000.00 at a foreclosure sale on January 10, 2017. Since the date of the purchase (approximately nine months as of the October 12, 2017 trial date), DeVincent had been paying property taxes and insurance, while Strawbridge remained in the single-family home on the property, refusing to leave. The foreclosure deed was introduced as an exhibit.

Strawbridge, on the other hand, did not testify at trial or otherwise offer any evidence that she held title superior to that of DeVincent. Her attorney barely cross-examined DeVincent, and in his client's defense merely attempted to introduce into evidence the further appellate review application to the Supreme Judicial Court, presumably in the Strawbridge v. Bank of N.Y. Mellon matter. The trial judge disallowed the admission

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of this evidence, finding that it was not relevant. Strawbridge's argument at trial was essentially a procedural one: that because the Supreme Judicial Court had not decided her further appellate review application as of the date of trial, her appeal was still pending, and thus the question of who holds superior title was not definitively settled. Consequently, under Mass. R. Civ. P. 62(d), Strawbridge claims that the trial judge should not have entered judgment against her.

Strawbridge misreads the plain language of Mass. R. Civ. P. 62(d). The rule does not preclude a party from filing a civil action while the opposing party pursues an appeal. The rule provides that "the taking of an appeal from a judgment shall stay execution upon the judgment during the pendency of the appeal" (emphasis added). As DeVincent correctly points out in his brief, nothing in Rule 62(d) prevents him from filing a summary process action and obtaining a judgment. If anything, it may mean only that DeVincent cannot levy upon an execution while Strawbridge's appeal from the summary process judgment is pending.

If the Supreme Judicial Court had granted further appellate review in the Strawbridge v. Bank of N.Y. Mellon case and reversed the Superior Court's dismissal of that case, Strawbridge may have had recourse to a Mass. R. Civ. P. 60(b)(5) motion, which allows for relief from judgment where "a prior judgment upon which it is based has been reversed or otherwise vacated." As it turns out, less than a month after the trial in this case, the Supreme Judicial Court denied further appellate review in Strawbridge v. Bank of N.Y. Mellon, 478 Mass. 1105 (2017). Under Mass. R. App. P. 23, the Appeals Court rescript issued forthwith, and the Superior Court judgment of dismissal became final.

The judgment of the trial court is affirmed.

So ordered.