Colley v. Benson, Young & Downs Ins. Agency, Inc.
Decision Date | 08 July 1997 |
Docket Number | No. 95-P-1533,95-P-1533 |
Citation | 42 Mass.App.Ct. 527,678 N.E.2d 440 |
Court | Appeals Court of Massachusetts |
Parties | Diana COLLEY v. BENSON, YOUNG & DOWNS INSURANCE AGENCY, INC. |
Francis E. Scheele, Barnstable, for plaintiff.
Christopher J. Snow, Provincetown, for defendant.
George A. Berman, Susan E. Cohen, David P. O'Brien, Lawson & Weitzen & others, Boston, amici curiae, submitted a brief.
Before PERRETTA, KASS and JACOBS, JJ.
In 1987, after Benson, Young & Downs Insurance Agency, Inc. (Benson), made payment on a promissory note which it had guaranteed on behalf of George Colley (George), husband of Diana Colley (Diana), it brought an action against George and Diana seeking to reach and apply George's interest in the marital residence which stood in Diana's name only. Benson was granted judgment by default on April 24, 1992, and an execution on that judgment issued. Benson's many attempts to obtain satisfaction on the judgment prompted Diana, on February 14, 1994, to commence the present action under Mass.R.Civ.P. 60(b)(4) and (6), 365 Mass. 828-829 (1974), in which she alleges that Benson's judgment against her is void for lack of subject matter and personal jurisdiction. On cross motions for summary judgment, the same Superior Court judge who had entered all the orders and judgment in the underlying action again ruled in favor of Benson. We affirm.
1. An independent action under rule 60(b). Although relief from judgment is typically sought by motion, rule 60(b) also allows relief to be sought by independent action: "This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court." 365 Mass. at 829. Because Diana sought relief from Benson's judgment against her by commencing an independent action with a complaint upon which she and Benson then sought summary judgment pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974), we need consider the appropriate standard of review to be applied before taking up her claims on appeal.
If we examine Diana's appeal in terms of its procedural posture, it is from a grant of summary judgment in Benson's favor. " Judson v. Essex Agric. & Technical Inst., 418 Mass. 159, 162, 635 N.E.2d 1172 (1994).
It is, however, unnecessary to consider whether summary judgment is appropriate in an independent action under rule 60(b). Choosing to place substance over form, we view Diana's request for relief as having been made by motion. See Weldon v. United States, 70 F.3d 1, 4-5 (2d Cir.1995), quoting from 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure: Civil § 2868, at 405 (2d ed. 1995) () . There was no circumstance which required Diana to seek relief under rule 60(b)(4) and (6) by an independent action rather than by motion, and our standard of review should not be controlled by the label she placed on her pleading. See Reporter's Notes to Mass.R.Civ.P. 60(b), Mass. Ann. Laws, Rules of Civil Procedure, at 587-588 (Law Co-Op.1982). Additionally, in filing cross motions for summary judgment, the parties stated that there were no facts in dispute.
The issue to be determined on an appeal from the denial of a motion brought under rule 60(b)(4) is simply whether the record shows that the judgment from which relief is sought is void. See Smith & Zobel, Massachusetts Rules Practice § 60.11 (1977) (); 12 Moore's Federal Practice § 60.44 (3d ed. 1997) ( ).
We look to the pleadings, affidavits, and exhibits to determine whether they show that the judgment in the underlying action is void and whether the judge erred in denying Diana's request for relief.
2. The underlying action. Pertinent papers in the underlying action to reach and apply establish certain facts. Proper service of process was made upon George but not Diana. George retained the law firm then known as Lawson & Wayne, and Lawson & Wayne filed an appearance on behalf of George and Diana. That firm entered into a stipulation that Diana would temporarily refrain from disposing of any real estate standing in her name alone. It filed an answer for George and Diana setting out nine affirmative defenses, none of which spoke to a lack of jurisdiction over Diana or the subject matter of the action, and it submitted a memorandum of law in opposition to Benson's request for a preliminary injunction against Diana's disposition of her property. About five years later, a default judgment entered against George and Diana. After Lawson & Wayne unsuccessfully sought to have the default vacated, damages were assessed and judgment entered. When Benson sought to satisfy the judgment through a sheriff's sale of the marital residence, Diana brought this action under rule 60(b).
3. The present action. In her affidavit, Diana states that although she knew that George was being sued by Benson and represented by Lawson & Wayne, she had no knowledge that she also was involved. As recited by her:
Although there are three affidavits from George in the record before us, the facts therein related pertain to Diana's lack of knowledge of the business transaction which gave rise to his debt and promissory note. None of the affidavits tells whether Diana had knowledge of the lawsuit or her representation by Lawson & Wayne. 1
In one affidavit, however, George does inform that after receiving "horrendous bills" from Lawson & Wayne, he requested his "papers from them which [he] took to Attorney [John] Stephenson so he could look into matters for me." Neither a motion for leave to withdraw from Lawson & Wayne nor an appearance by Mr. Stephenson is reflected on the docket of the underlying action.
After Benson's attorney, Mr. Christopher Snow, sent Lawson & Wayne a copy of his motion for entry of a default judgment and an assessment of damages, Lawson & Wayne filed a motion to remove the default. According to an affidavit submitted with that motion, Lawson & Wayne had returned the "defendants" file on September 29, 1989, as requested by George, by certified mail addressed to him and directed to the marital residence. When, on July 31, 1991, Lawson & Wayne received notice to appear in court on August 29, 1991, they "forwarded the notice to defendant believing that Defendants had retained successor counsel." The motion to remove the default was denied on March 19, 1992, for the failure to satisfy the standard set out in Berube v. McKesson Wine & Spirits Co., 7 Mass.App.Ct. 426, 388 N.E.2d 309 (1979). A default judgment entered against George and Diana on April 24, 1992, and a writ of attachment in the amount of the judgment issued on November 9, 1992.
We return to Diana's affidavit. As related by her, the first time she had knowledge that she too was involved in Benson's underlying action was on January 11, 1993, when she received notice from the registry of deeds that an execution document had been registered on her title to the marital home. 2 Upon receipt of this notice,...
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