2017 Mass.App.Div. 171, Belarmindo v. Choice Auto Center, LLC

Citation:2017 Mass.App.Div. 171
Opinion Judge:FINNERTY, J.
Party Name:GERALDA TORRES BELARMINDO v. CHOICE AUTO CENTER, LLC
Attorney:Seth G. Roman for the plaintff. E. Pamela Salpoglou for the defendant.
Judge Panel:Present: Welch, Finnerty & Kirkman, JJ.
Case Date:November 08, 2017
Court:Massachusetts Appellate Division
 
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2017 Mass.App.Div. 171

GERALDA TORRES BELARMINDO

v.

CHOICE AUTO CENTER, LLC

Massachusetts Appellate Division, District Court Department, Southern District

November 8, 2017

July 21, 2017

Seth G. Roman for the plaintff.

E. Pamela Salpoglou for the defendant.

Present: Welch, Finnerty & Kirkman, JJ.

FINNERTY, J.

The suit by Geralda Torres Belarmindo ("Belarmindo") against Choice Auto Center, LLC ("Choice"), regarding an allegedly defective motor vehicle she had purchased for her son, was dismissed when Belarmindo failed to answer interrogatories timely before application for final judgment pursuant to Mass. R. Civ. P. 33(a)(4) was filed with the court. Belarmindo here appeals the denial of her Mass. R. Civ. P. 60(b)(1) motion to vacate the judgment of dismissal.

When Choice answered the complaint, it also served interrogatories upon Belarmindo. Belarmindo having failed to answer the interrogatories within the forty-five days provided under the rule, Choice served its final request for answers under Mass. R. Civ. P. 33(a). When no answers were received after forty more days had passed, Choice served and filed its application for final judgment for relief and dismissal. That application was docketed by the trial court on December 19, 2016. The trial court scheduled a hearing on the application for final judgment for relief and dismissal, which was held on February 17, 2017. 1 Prior to that hearing, on January 19, 2017, Belarmindo served her answers to interrogatories.

At the February 17, 2017 hearing, the court ordered the entry of judgment for Choice on the application for final judgment for relief and dismissal. That judgment entered on February 21, 2017. Thereafter, Belarmindo filed a motion to vacate judgment of dismissal, which was heard on March 24, 2017 and denied.

Belarmindo does not contest the trial court's allowance of the application for final judgment (the subject of the February 17, 2017 hearing). She concedes that the action of the court was not discretionary and that pursuant to Mass. R. Civ. P. 33(a)(6), it was the ministerial obligation of the clerk to dismiss the case upon receipt of the final...

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