JONATHAN MILLEN and HELEN MILLEN v. ANNE PARDEE, HARRY PARDEE III, and RUTH GEORGE

Introduction

This is a Registration proceeding in which plaintiffs Jonathan and Helen Millen seek registered title for their land on Landmark Lane in Rockport. [Note 1] See G.L. c.185, §§45-47. More specifically, they allege:

* fee ownership of the "L"-shaped parcel fronting on Landmark Lane shown as Lot 78 on the Rockport tax assessor's map - the lot on which their house sits (hereafter referred-to as the "L"), [Note 2]

* fee ownership of an additional 16.5'-wide strip of land abutting the toe of the "L" (Lot 12A on the tax assessor's map) - a strip which is owned of record by defendant Ruth George, [Note 3]

* a 15'-wide appurtenant easement, running from Granite Street to the upper part of the "L", over land owned of record by defendants Anne and Harry Pardee, [Note 4] and

* the abandonment or extinguishment of any easement rights over their land. [Note 5]

All of the Millens' claims were based on record title arguments. None were based on assertions of prescriptive rights of any kind. See Trial Tr., Vol. 2 at 58-60.

The case was tried before me, jury-waived, and in my Decision dated October 10, 2018, I found and ruled that (1) the Millens established good title, suitable for registration, to the "L", (2) they do not have any right, title or interest in the 16.5' strip, either fee or easement, and (3) they do not have an easement over any other part of the George or Pardee land. Although the final registration decree and Certificate of Title await an updated title review and other ministerial tasks, these rulings were the final "judgment" on those issues for purposes of appeal, and the parties were so notified. [Note 6] A declaration that no one has easement rights over the Millens' land awaits their motion for entry of default judgment against the other abutters and potentially interested parties, none of whom, despite due and proper notice, appeared in this action to assert such an easement. The defendants stipulated that they had no such rights. See Trial Tr. Vol. 2 at 57.

The Millens did not challenge the Decision by filing or serving a Rule 50(b), Rule 52(b), Rule 59, or Rule 60 motion within 10 days after October 10, 2018, i.e. on or before October 22, 2018. [Note 7] The time for them to file an appeal from the merits of that Decision thus expired on November 9, 2018. See Mass. R. App. P. 4(a). No such appeal was filed nor was an extension of that deadline sought, timely or otherwise. See Mass. R. App. P. 4(c). The Millens are thus now precluded from appealing the Decision. See Mass. R. App. P. 4(a). Indeed, by motion filed on March 11, 2019, they themselves sought to enforce its rulings. See Mem. & Order on Plaintiffs' Motion for Removal of Portion of Fence (Jan. 17, 2020).

Nonetheless, on October 31, 2019, over one year after the October 10, 2018 Decision, the Millens filed a motion styled "PLAINTIFFS' MOTION for RECONSIDERATION of the COURT'S October 10, 2018 'Decision', as provided by M.R.Civ.Pro. rule 60(b)(6), for 'A FRAUD UPON THE COURT'; and, for RELIEF." The "fraud" alleged was the defendants' decision not to call Ms. Millen as an adverse witness during their part of the trial, and the "relief" sought was to "void, cancel [and] expunge" the Decision and its rulings. See Motion at 5-8. For the reasons set forth below, the motion is DENIED.

Analysis

The Millens' motion is denied on two grounds.

First, because it is based on an alleged "fraud" and nothing else, and was filed more than one year after the Decision, the motion is time-barred. See Mass. R. Civ. P. 60(b)(3) (motions to relieve a party from a final judgment, order, or proceeding based on allegations of "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party . . . shall be made within a reasonable time and, for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken"). See also Owens v. Mukendi, 448 Mass. 66 , 73 (2006) (one-year time bar applies unless there is "something more than one of the grounds stated in rule 60(b)(1) - (5)"). Here, only "fraud" and "misconduct of an adverse party" were alleged.

Second, the motion is denied because the conduct complained-of by the Millens - the defendants' decision not to call Ms. Millen as an adverse witness during the defense case - is not "fraud," "misrepresentation," or "misconduct" within the meaning of the rule. Ms. Millen testified at length during the Millens' part of the case (see Trial Tr. Vol. 1 at 34-60) and the Millens rested their affirmative case at that point. See Trial Tr. Vol. 1 at 57, 60. The defendants initially intended to call Ms. Millen as an adverse witness in their case and reserved their cross- examination of her until that time (see Trial Tr. Vol. 1 at 56), but ultimately called only Mr. Millen. See Trial Tr. Vol. 2 at 31-46. Calling or not calling witnesses for a particular party's case are normal trial decisions, fully within the discretion of that party's counsel, and there is nothing that requires that counsel to call the adverse party (or, for that matter, any other witness) at that point, even if they had earlier reserved the right to do so. And the Millens cannot claim prejudice from Ms. Millen not being called by the defendants because they were given full opportunity to put on whatever rebuttal testimony they chose to present, including calling Ms. Millen to testify again, [Note 8] and they rested their case without doing so. See n.8 and Trial Tr. Vol. 2 at 55.

Rule 60(b) motions of the type asserted by the Millens are in the discretion of the court, to be granted only in "extraordinary circumstances." See Owens, 448 Mass. at 73. I see no such circumstances here. The Millens had full opportunity to present their case at trial, and are bound by the choices they made at that time.

Conclusion

For the foregoing reasons, the plaintiffs' Rule 60(b) motion for reconsideration is

DENIED.

SO ORDERED.