Berube v. McKesson Wine & Spirits Co.

• Decision Date: 19 April 1979
• Parties: Alvan G. BERUBE et al. 1 v. McKESSON WINE & SPIRITS COMPANY.
• Court: Appeals Court of Massachusetts

Page 309

388 N.E.2d 309

7 Mass.App.Ct. 426

Alvan G. BERUBE et al. ¹ v. McKESSON WINE & SPIRITS COMPANY.

Appeals Court of Massachusetts, Bristol.

Argued March 20, 1979.

Decided April 19, 1979.

Paul B. Galvani, Boston, for defendant.

George T. Bolger, Fall River, for plaintiffs.

Before BROWN, GREANEY and KASS, JJ.

GREANEY, Judge.

This is an appeal from the allowance of the plaintiffs' motion under Mass.R.Civ.P. 60(b)(1), 365 Mass. 828 (1974), ² for relief from a judgment. The defendant asserts that the judge made an error of law and abused his discretion by the allowance of the motion and the restoration of the case to the trial list. We rule under the circumstances of this case that the judge's action was justified.

We summarize the facts necessary to frame the main procedural issues. In early 1975 the plaintiffs, by their amended complaint asserted claims against the defendant for tortious interference with advantageous business relations and the intentional infliction of emotional distress as a result of, and subsequent to, the defendant's termination of the male plaintiff's employment as a liquor salesman. The action was scheduled and noticed for trial in the Superior Court in January, 1978. All parties were apparently prepared for trial at that time, but as a result of the state of the list during that month, the case was not reached. The defendant next requested the setting of a date certain for trial. ³ An order was entered, with notice to both parties, establishing May 15, 1978, as the trial date under sanction of dismissal. On the scheduled trial date, the defendant appeared with its out of State witness, ready for trial. On that day, however, another lawyer appeared on behalf of the plaintiffs and requested a continuance on the basis that principal counsel who would try the case was ill and could not proceed. The judge in the trial assignment session allowed the requested continuance, conditioned on the plaintiffs' reimbursement of reasonable costs incurred by the defendant's witness. ⁴ On May 23, 1978, the plaintiffs' counsel filed a motion to revoke the order directing the payment of costs. On June 22, 1978, the judge approved the bill of costs submitted by the defendant in the amount of $371.51, and denied the plaintiffs' motion seeking to revoke the order, thereby triggering the thirty day period for payment. On July 17, 1978, the plaintiffs filed a notice of appeal from the order directing payment of costs. On July 25, 1978 (one day after the payment of the costs was due ⁵), counsel for the parties appeared in a motion session concerning a contested aspect of discovery in the case. On that date, a judge other than the one who had assessed the costs, after disposing of the discovery motion, learned that the costs had not been paid. This judge directed the defendant's counsel to immediately prepare an affidavit regarding the nonpayment of the costs and a motion for entry of judgment. The defendant's counsel prepared a handwritten affidavit and motion, and the judge directed the entry of a judgment dismissing the action. Two days later the plaintiffs applied to have the judgment vacated; the same judge who had directed the entry of the judgment denied the motion summarily and without a hearing. On July 31, 1978, the costs were paid in full. On August 8, 1978, the plaintiffs' counsel moved under Mass.R.Civ.P. 60(b)(1) for relief from the judgment. ⁶ The judge who had assessed the costs heard and allowed the Rule 60(b)(1) motion, over the defendant's objection, and made express findings as to the reasons for the allowance. ^{7 7} The defendant filed a petition for review under the first paragraph of G.L. c. 231, § 118. A single justice of this court denied plenary relief but authorized the defendant to prosecute an interlocutory appeal from the order granting relief from the judgment. Foreign Auto Import, Inc. v. Renault Northeast, Inc., 367 Mass. 464, 470, 326 N.E.2d 888 (1975). Town of Mansfield v. GAF Corp., 5 Mass.App. --- ^A, 364 N.E.2d 1292 (1977).

Rule 60(b)(1) permits a judge of the Superior Court to relieve a party from the effect of an otherwise final judgment for reasons of "mistake, inadvertence, surprise, or excusable neglect." The rule, like its predecessor, the petition to vacate judgment, provides a procedure for removing the burdens of a judgment where the interests of justice and fairness require relief. Pulliam v. Pulliam, 156 U.S.App.D.C. 25, 26-27, 478 F.2d 935, 936-937 (1973). The exercise of the power to grant relief from a judgment rests within the sound discretion of the judge, which is to be applied "toward the objective that legal procedure becomes the vehicle for determination of the issues upon their merits instead of upon refinements of procedure . . ." Florida Investment Enterprises, Inc. v. Kentucky Co., 160 So.2d 733, 736 (Fla.App.1964). Rule 60(b) is remedial in character and subject to a liberal interpretation and application in a situation where the mischief leading to the judgment occurs at the pretrial stage. In addition, the rule has been said to contemplate an equitable balancing of interests in determining the merits of a motion brought under its provisions. Manos v. Fickenscher, 62 A.2d 791, 792-793 (D.C.1948). Orange Transp. Co. v. Taylor, 71 Idaho 275, 280, 230 P.2d 689 (1951). Kohlbeck v. Handley, 3 Ariz.App. 469, 415 P.2d 483 (1966). See also discussion in Smith & Zobel, Rules Practice § 60.7 (1977). ⁸

An equation for determining when relief should be granted under the rule for excusable neglect attributable to conduct by counsel for a party cannot be stated in categorical terms. The cases have been divided on exactly what neglectful conduct of an attorney will be excusable. ⁹ In the last analysis, the question whether relief should be granted for excusable neglect is a question which requires a case by case assessment of the circumstances. As a result, we think it is important in reviewing action on motions of this type that the record be measured against a consideration, among other relevant circumstances, of at least the following factors: (1) whether the offending party has acted promptly after entry of judgment to assert his claim for relief therefrom; (2) whether there is a showing either by way of affidavit, or otherwise apparent on the record, that the claim sought to be revived has merit; (3) whether the neglectful conduct occurs before trial, as opposed to during, or after the trial; (4) whether the neglect was the product of a consciously chosen course of conduct on the part of counsel; (5) whether prejudice has resulted to the other party; and (6) whether the error is chargeable to the party's legal representative, rather than to the party himself; for "the courts have been reluctant to attribute to the parties the errors of their legal representatives." Barber v. Tuberville, 94 U.S.App.D.C. 335, 337, 218 F.2d 34, 36 (1954). See also Maki v. New York, N. H. & H. R. R., 293 Mass. 223, 199 N.E. 760 (1936). ¹⁰ We now appraise the defendant's contentions in the light of these standards.

1. The defendant first argues that the judge committed an error of law by his allowance of the motion. The argument in this regard is that no basis existed for the judge to exercise his discretion for two reasons: (1) plaintiffs' counsel in failing to pay the costs acted not out of neglect, but in pursuit of a conscious decision to avoid payment; and (2) no showing was made in support of the motion that the action was meritorious.

The notice of appeal from the order assessing the costs was, of course, a nullity. The order was interlocutory in character, thus, not appealable as of right; yet plaintiffs' counsel did not file a petition, seeking relief from the order or for leave to take an interlocutory appeal, under the first paragraph of G.L. c. 231, § 118, nor did he request that the judge report his order under the third paragraph of G.L. c. 231, § 111, Mass.R.Civ.P. 64, 365 Mass. 831-832 (1974). Despite these lapses, the record in our view does not compel a conclusion that plaintiffs' counsel engaged in a conscious strategy designed to disobey the judge's order or otherwise frustrate the progress of the litigation. The motions by plaintiffs' counsel to revoke the order as to costs or to enlarge the time for payment are consistent with an effort to obtain some relief from the order at the trial level. The judge's finding that the plaintiffs' principal counsel was under a medical disability and unavailable when the costs were imposed supplies the motivation for the effort to seek review of the order. The motions seeking relief from the costs reflect on the meaning of the futile notice of appeal. The circumstances, taken together, may well have indicated to the judge a confused and inept attempt to have the order as to costs reviewed in the hope that it would be abated in whole or in part. ¹¹ The whole of the conduct was also suffused with a demonstrable ignorance of the rules of appellate practice, ¹² since once the error was discovered the costs were promptly paid. We rule on the entire record that the judge was correct in declining to treat the conduct as part of a design to flout the court's order.

We also find that there was enough in the record to permit the judge to conclude that the action had merit. The standard in this regard does not require a showing of certainty of success. All that is necessary is an indication that the claim is one "worthy of judicial investigation because raising a material question of law meriting discussion and decision, or a real controversy as to essential facts arising from conflicting or doubtful evidence." Russell v. Foley, 278 Mass. 145, 148, 179 N.E. 619, 621 (1932). See also Anderson v. Goodman, 341 Mass. 704, 705-706, 172 N.E.2d 257 (1961). The judge who had passed upon the Rule 60(b)(1) motion appears from the docket to have been involved with almost every pretrial motion argued in the case. We are...