Chawla v. J & L Musto Construction, Inc., 2003 Mass. App. Div. 169 (Mass. App. Div. 10/10/2003)
| Decision Date | 10 October 2003 |
| Parties | Bachan Chawla <I>vs.</I> J & L Musto Construction, Inc. |
| Court | Massachusetts Appellate Division |
Marsha L. Weber for the plaintiff.
Jon M. Nelson for the defendant.
Present: Wheatley, P.J., Welsh & Barrett, JJ.
Plaintiff-Appellant (Chawla) appeals pursuant to Dist/Mun.Cts. R. A. D. A., Rule 8A, from a denial of her motion to vacate a judgment of dismissal.1 The dismissal, in favor of Defendant-Appellee (Musto), was entered in accordance with Mass. R. Civ. P., Rule 33(a), for Chawla's failure to answer interrogatories.
The summary of undisputed facts offered pursuant to Rule 8A is as follows. On February 13, 2002, Chawla sued for negligence arising out of an auto accident. Musto properly served Chawla with interrogatories on March 25, 2002. The interrogatories were not answered. On August 29, 2002, Musto served Chawla with a Final Request for Answers pursuant to Mass. R. Civ. P., Rule 33(a) (3). The interrogatories remained unanswered and on October 9, 2002, Musto filed and served Chawla with an Application for Final judgment of Dismissal. Still, no answers were forthcoming. On October 17, 2002, the court issued a final judgment of dismissal. Chawla filed her motion to vacate judgment on October 29, 2002.2 It was denied, following a hearing on November 12, 2002.
Chawla lodges this appeal on two grounds: (1) that the matter should not have been dismissed because Musto's application for final judgment did not contain language advising Chawla that her failure to file answers within thirty (30) days would result in the dismissal of her claim, and (2) that even if the case was properly positioned for dismissal, the court abused its discretion in doing so.
On May 1, 2002, Mass. R. Civ. P., Rule 33(a), was revised to provide that interrogatories and answers were no longer to be filed with the court.3 The revision relieved court clerks of their obligation to send out notices concerning late answers. The revised rule put the onus on the interrogating party to notice opposing counsel if answers to its interrogatories are outstanding. The interrogating party must also advise if it plans to seek a judgment for noncompliance with Rule 33. It is the absence of this notice to seek final judgment in Musto's August 29th request of which Chawla complains. Only when a party applies for final judgment is the court involved. At that point, the interrogating party files an affidavit outlining the series of events leading up to its application. See Rule 33(a)(4). The court then, based upon the affidavit, which must include a copy of the final request, issues its judgment. Rule 33(a)(6).
Chawla's counsel candidly admits her practice has been to withhold answers to interrogatories until she receives notice of a request for final judgment. This court sees no need to comment on the dangers associated with such a practice. Chawla does not contend she did not receive the interrogatories or the notices sent by Musto. Her argument is that while she knew her answers were long overdue, she was either unaware that final judgment could enter, not having been properly noticed by Musto, or she thought that judgment could not enter because the "final request" was procedurally deficient. A final request for answers is designed not only to place the delinquent party on notice concerning the status of its answers but also to advise that final judgment may enter if answers are not received within thirty (30) days. Without this "admonition," Chawla contends that any dismissal of her claim was improper. We disagree.
Chawla was represented by counsel throughout these proceedings. Her attorney, while perhaps not familiar with the recent rule change, was very familiar with the time limits imposed for answering interrogatories, both before and after a request for final judgment. Counsel's practice of waiting, apparently without reason, for a request for final judgment before answering interrogatories makes a game of the civil procedure rules. Partlow v. Hertz Corp., 370 Mass. 787, 790 (1970) (). Counsel's stated familiarity with Rule 33(a) before its revision on May 1, 2002, means that when she received a final request for answers on August 29, even though it contained no notice of an intent to apply for final judgment, she was aware Musto had started the process that could end in her case being dismissed. By taking no action, she knowingly assumed the risk of dismissal and cannot "convincingly claim she was denied due process." See Peipul v. Bryson, 41 Mass. App. Ct. 932, 932-33 (1996) which holds:
Rule 33(a) is neither obscure nor unfamiliar: interrogatories are to be answered within forty-five days. Step one of the application for a final judgment — for failure to answer within forty-five days — is a routine event. Parties are then on notice that, unless the court orders otherwise, the interrogatories must be answered within the next thirty days or the machinery which produces final judgement may begin to engage in earnest. A posture of relaxation at that point is perilous, however much the day-to-day culture among lawyers tends toward a relaxed attitude about the rigors of the rules.
A telephone call to opposing counsel at any point during these proceedings to explain why the answers were overdue and to request an extension was apparently never made. Had Chawla taken even the late opportunity to file her answers after she received notice of the application (October 9, 2002) but before judgment entered (October 17, 2002) she would have forestalled the entry of judgment. At her peril, however, she took no action from March 25, 2002, when the interrogatories were served, until October 29, 2002, when she filed her motion to vacate. Had Chawla been unrepresented, her claim of surprise at the issuance of a final judgment, under these circumstances, would carry more weight. But here, such a claim, after more than seven months of inaction, rings hollow. Musto's failure specifically to advise it was not proceeding to final judgment is not enough to save this plaintiff. The dismissal here was not due to a lack of notice, but to a lack of action.
Chawla's claim that the court abused its discretion in failing to allow her motion to vacate judgment also fails. The decision of whether or not to vacate judgment is "committed to the sound discretion of the (motion) judge." Greenleaf v. Massachusetts Bay Transport Auth., 22 Mass. App. Ct. 426, 429 (1986) and cases cited therein. An...
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