297 NEWBURY STREET, LLC v. LAURA BALDINI

The defendant, Laura Baldini, appeals the denial of her motion to vacate default judgment and to recall the execution. The plaintiff/landlord 297 Newbury Street, LLC asks this Court to affirm the decision of the motion judge. The Court adopts and incorporates the factual background set forth in the motion judge's written decision. RA1-3.

For the reasons set forth below, this Court rules that it was error to deny Baldini's motion to vacate.

Discussion

Rule 60(b) of the Massachusetts Rules of Civil Procedure provides a procedure for removing the burdens of a judgment where the interests of justice and fairness require relief. Care One Mgmt., LLC v. Brown, 98 Mass. App. Ct. 589, 593-94 (2020). It "contemplates an equitable balancing of interests in determining the merits of a motion brought under its provisions." Id. at 594, quoting Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 429 (1979). "An adequate basis for allowing the motion must be shown, but any doubt should be resolved in favor of setting aside defaults so that cases may be decided on their merits." Ceruolo v. Garcia, 92 Mass. App. Ct. 185, 188-89 (2017).

"Motions for relief from final judgment brought under rule 60(b) are commended to the judge's discretion, and a judge's decision will not be overturned, except upon a showing of a clear abuse of discretion." Care One Mgmt., 98 Mass. App. Ct. at 594. "However, an important exception exists to the principle that a motion for relief from judgment is addressed to the judge's discretion." Wang v. Niakaros, 67 Mass. App. Ct. 166, 169 (2006). "If a judgment is void for lack of subject matter or personal jurisdiction, or for failure to conform to the requirements of due process of law, the judge must vacate it." Id. An appellate court reviews de novo the denial of a rule 60(b)(4) motion. Dumas v. Tenacity Constr. Inc., 95 Mass. App. Ct. 111, 114 (2019). In considering a motion alleging that the judgment is void because of improper service of process, the Court is required to accept the defendant's uncontroverted affidavits as true. Id. at 111.

I. The landlord did not effectuate proper service on Baldini.

Here, Baldini moved to vacate the judgment under Rule 60(b)(4) arguing that the judgment was void because of a lack of personal service. "A default judgment is void if the defendant has not been properly served with process." Dumas, 95 Mass. App. Ct. at 114. Acquisition of personal jurisdiction over a defendant cannot be satisfied without proper service of process or an appropriate substitute. Wang, 67 Mass. App. Ct. at 172. Similarly, the due process requirements of adequate notice and opportunity to appear are typically not satisfied without adherence to Rule 4 of the

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Massachusetts Rules of Civil Procedure. Id. at 171. Rule 4(d)(1) requires that service be made as follows:

Upon an individual by delivering a copy of the summons and of the 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, provided that any further notice required by such statute be given. If the person authorized to serve process makes return that after diligent search he can find neither the defendant, nor defendant's last and usual abode, nor any agent upon whom service may be made in compliance with this subsection, the court may on application of the plaintiff issue an order of notice in the manner and form prescribed by law.

Rule 2 of the Massachusetts Rules of Summary Process explicitly requires that a plaintiff comply with Rule 4(d).

In general, the plaintiff bears the burden of establishing the validity of service of process. Dumas, 95 Mass. App. Ct. at 114. A plaintiff's submission of the return of service establishes prima facie evidence that service was validly made. Id. at 115.

Here, the return of service is insufficient to make that prima facie showing. The Deputy Sheriff certified that, on December 1, 2020, he served the summons and complaint "in hand to Aaron Sells, agent, person in charge at the time of service for Luara [sic] Baldini, at 297 Newbury Street 3rd Floor Boston, MA 02115." RA 9. Baldini was never served in hand or at her last and usual place of abode. The certification makes no mention of any steps taken to locate Baldini or her home address. Nor is there anything in the return to show that Sells was Baldini's agent by appointment or by statute. The Deputy Sheriff's affidavit does not establish even minimal compliance with Rule 4(d)(1).

The landlord seeks to overcome this deficiency by arguing that Sells had both actual and apparent authority to accept service of process on Baldini's behalf. Generally, an agency relationship is created by express or implied mutual consent that an agent will act on behalf and for the benefit of the principal, and subject to the principal's control. Fergus v. Ross, 477 Mass. 563, 566 (2017). Here, there is nothing in the record to suggest that Sells was empowered to act on Baldini's behalf. The emails cited by the landlord (see RA 150, n. 1) only show that, at least until September of 2020, Baldini and Sells were in contact with the landlord regarding overdue rent. The emails shed no light on whether either Baldini or Sells was authorized to act as an agent for the other. That Sells used the pronoun "we" and appeared to be taking the lead in these discussions does not render him Baldini's agent, particularly in relation to legal proceedings stemming from the tenancy.

Apparent authority arises from written or spoken words or any other conduct of the principal which, reasonably interpreted, causes a third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him. Licata v. GGNSC Malden Dexter LLC, 466 Mass. 793, 801 (2014). Here, the Deputy Sheriff's return states no facts to support his determination that Sells was Baldini's agent. See Dumas, 95 Mass. App. Ct. at 116 ("The deputy sheriff's return does not state with any specificity what investigation he made to verify either that

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[person served] was the person in charge or was the person to whom he gave the summons and complaint."). "Merely stating in a perfunctory fashion the manner of service does not controvert the defendants' affidavit[]." Id.; see also Fleishman v. Stone, 57 Mass. App. Ct. 916, 916 (2003) (deputy sheriff failed to detail steps taken to confirm identity of person served).

There is nothing else in the record to support a showing of apparent authority. At the time of service, Sells was Baldini's former business partner in a by-then failed venture. RA 114-115. Baldini had vacated the property roughly two months earlier, leaving Sells free to seek a new lease without her. RA 115. Simply put, there is no indication that Sells and Baldini had any ongoing business relationship in December of 2020, much less that Sells was her agent.

The landlord lastly points to the provisions of the lease relating to notice, upon which the motion judge relied in denying Baldini's motion to vacate. RA 177. Two provisions are relevant. Section 31 of the lease permits the landlord, upon the tenants' uncured default, to terminate the tenancy by entry or by written notice, without need for a formal notice to quit. RA 26. Section 28 relates to "[a]ny notice which is required or permitted to be given by either party under this Lease" and permits notice at the subject address (emphasis added). Section 28 imposes a burden on the parties to notify the other of any changes to their notice address. RA 24. Otherwise, service at the subject address is "deemed receipt" even if the party can no longer be found there. RA24. The landlord correctly argues that service at the subject address satisfies the requirements set forth in the lease for the termination of the tenancy. But termination of the tenancy and the initiation of a summary process action are two distinct events. The termination of the lease by its own terms or by a notice to quit is a condition precedent to bringing suit. Cambridge St. Realty, LLC v. Stewart, 481 Mass. 121, 128 (2018). The mere fact that the landlord properly terminated the tenancy, however, does not relieve it of its duty as a plaintiff to comply with court rules relating to service of the summons and complaint. Even if we assume, arguendo, that the parties were free to bargain away the notice requirements of Rule 4, they did not do so. Section 28 applies to notices required "under this Lease" but makes no mention of notices required by law. The plain language of the lease does not alter the landlord's obligation to give notice of the pending suit to each defendant.

II. The judgment is void and must be vacated.

A motion to vacate under Rule 60(b)(4) must usually "be made within a reasonable time" but there is no time limit with respect to rule 60(b)(4) motions based on void judgments. Uzoma v. Okereke, 88 Mass. App. Ct. 330, 331 (2015). This is because the question is not one of waiver by the defendant of a right, but of a lack of authority on the part of the court to have issued the underlying judgment. Id. Because the judgment is void, no action by the defendant in delaying his challenge can render it valid. Id. "Notwithstanding the powerful interest in finality of judgments, a motion for relief from a judgment which was void from its inception lies without limitation of time." Bowers v. Bd of Appeals of Marshfield, 16 Mass. App. Ct. 29, 31 (1983).

A defendant may, however, forfeit a defense based upon the absence of personal jurisdiction. Am. Int' Ins. Co. v. Robert Seuffer GMBH & Co. KG, 468 Mass. 109, 115 (2014). For example, "[i]f a party alleges a lack of personal jurisdiction in an answer and then fails timely to pursue the defense, a forfeiture of that defense may result."

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Id. The inquiry whether a party has forfeited a defense predicated on a lack of personal jurisdiction is fact sensitive, requiring a thorough assessment of the parties' conduct throughout the litigation. Id. at 119. Here, the record does not support a finding of forfeiture. The material portions of Baldini's affidavit are uncontroverted and we must therefore accept them as true. Dumas, 95 Mass. App. Ct. at 111. Baldini avers that she became aware "sometime in spring of 2021" of the landlord's attempts to serve her with notice of the summary process action. RA 115. Contrary to the landlord's position, there is no basis to infer that she was aware of the lawsuit prior to that point in time. Interpreting the term "spring" in its literal sense, Baldini became aware of the attempted service after the court had already defaulted her on March 3, 2021 and entered a default judgment on March 8, 2021. It is reasonable to conclude that she became aware of the litigation no later than late April or early May of 2021 after receiving notice of the landlord's motion to amend judgment, which sought additional damages and attorneys' fees. RA 44-45; Supp. RA 3-4. The amended judgment entered on May 19, 2021.

Baldini did not move to vacate the default judgment until March 7, 2022. RA 91-112. The landlord argues that this delay was excessive and that Baldini's actual notice of the lawsuit should bar her from having the judgment vacated. It is true that actual notice can sometimes provide an independent basis warranting denial of a motion for relief from the judgment. "It works no deprivation of due process to hold that a personal defense of insufficiency of service of process may be waived by an individual defendant's failure to timely assert it, where, as here, it has been made to appear that the party not only has had actual notice of the complaint but also has, by word or deed, implicitly submitted to the court's jurisdiction." Jones v. Boykan, 79 Mass. App. Ct. 464, 470 (2011), vacated in part, 464 Mass. 285 (2013).

The landlord cites a number of Massachusetts cases where courts have declined to vacate judgments. See Appellee's brief at 23-24, n 1. The landlord asserts that, like the defendants in those cases, "[Baldini] had actual notice of the lawsuit and deliberately ignored it." Id. at 22. But there is no evidence here that Baldini ignored the lawsuit until the spring of 2021, by which point a default judgment had already entered against her. This stands in stark contrast to the cases cited by the landlord in which defendants had actual notice early enough in the proceedings so that they could meaningfully defend themselves prior to the entry of judgment. See e.g. Atlas Elevator Co., v. Stasinos, 4 Mass. App. Ct. 285, 288 (1976) (service at last and usual place of abode put defendant on notice of litigation at early stage); Khan v. Pamedge, Inc., 91 Mass. App. Ct. 1133 (2017) (Table) (actual notice prior to default); APEM, Inc. v. Applied Res. Corp., 94 Mass. App. Ct. 1106 , *2 (2018) (Table) (service of summons and motion for default judgment prior to entry of judgment); Commonwealth v. Nine Thousand Nine Hundred Sixty-Six Dollars, 88 Mass. App. Ct. 1111 (2015) (Table) (actual notice prior to default judgment); Jones, 79 Mass. App. Ct. at 469 (notice "well in advance of the entry of default judgment"); Cadle Co. v. Rowe, 2000 Mass. App. Div. 49, *2-3 (Dist. Ct. 2000) (defendant received summons and complaint and was therefore aware of the action from its inception); Am. Int' Ins. Co, 468 Mass. at 122 (defendant actively participated in the litigation).

Here, Baldini had actual notice of the suit at a stage in the proceedings when she no longer possessed "a meaningful opportunity to be heard in answer to the claims raised." Jones, 79 Mass. App. Ct. at 470. She had already been defaulted

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despite the landlord's failure to effectuate service. That default and the ensuing default judgment should not have entered. See Wang, 67 Mass. App. Ct. at 170-171 ("Absent a justification for [plaintiff]'s failure to effect proper service of process of the amended complaint pursuant to rule 4, [defendant] had no obligation to answer the amended complaint, and there was manifestly no basis to enter an order of default or a default judgment."). The default judgment was void at the time of its inception and must be vacated.

Conclusion

For the above-stated reasons, this Court reverses the decision of the trial court. The default judgment is vacated and the execution is recalled. The Court remands to the trial court for further proceedings. [Note 1]