Heacock v. Heacock, 89-P-618

Decision Date28 May 1991
Docket NumberNo. 89-P-618,89-P-618
Citation30 Mass.App.Ct. 304,568 N.E.2d 621
PartiesCarla HEACOCK v. Gregg HEACOCK.
CourtAppeals Court of Massachusetts

Cynthia J. Cohen, Boston, for Carla Heacock.

Henry P. Sorett, Boston, for Gregg Heacock.


KASS, Justice.

Heacock v. Heacock, 402 Mass. 21, 520 N.E.2d 151 (1988) ("Heacock I "), announced that a divorce judgment did not, in the circumstances, 1 on claim or issue preclusion principles, bar the maintenance of an independent tort action by one spouse against the other based on an event which occurred during the marriage.

Expressly left for further proceedings by Heacock I, at 25, 520 N.E.2d 151 at 153, was whether Carla Heacock, who had filed the tort action, had impermissibly delayed serving the complaint on her then husband, Gregg Heacock. The significant dates are as follows: the alleged assault and battery occurred on April 22, 1982; Carla Heacock filed her complaint in the tort case on April 22, 1985, the last day within the three-year statute of limitations, G.L. c. 260, § 4, for such an action and before the trial of the divorce case; the parties were divorced on August 19, 1985; and Carla Heacock served her complaint on Gregg Heacock on April 18, 1986. It is not disputed that Gregg first became aware of the tort action filed against him when the complaint was served, i.e., almost an entire year after Carla filed it. Nor is it disputed that the decision to delay serving the complaint was deliberate.

A judge of the Superior Court, acting on a motion brought under Mass.R.Civ.P. 41(b)(2), 365 Mass. 804 (1974) (failure to prosecute), decided: (1) that Carla's delay in serving the complaint was not excusable; (2) that the delay had deliberately been contrived for tactical advantage; and (3) that the delay had prejudiced Gregg's ability to defend against the tort action. Having so concluded, the judge allowed the motion and dismissed Carla's action, with prejudice. From the judgment of dismissal, Carla has appealed. We affirm.

Had the complaint been filed after July 1, 1988, the date upon which Mass.R.Civ.P. 4(j), inserted by 402 Mass. 1401 (1988), became effective, the failure to serve the complaint upon the defendant within ninety days after filing would have made the complaint subject to dismissal, the only saving grace possible being a show of good cause for delay by the party upon whom the duty of service rested. 2 As to Carla's complaint, filed April 22, 1985, more general principles apply concerning timeliness of serving a complaint. Those principles are not wholly eclipsed by the new Mass.R.Civ.P. 4(j); it is possible to conjure up facts in which service of a complaint thirty or sixty days after filing might be an unreasonable delay. Those occasions would be rare in the extreme and, as a general proposition, service of a complaint within ninety days of filing will count as having reached a safe harbor.

What is before us for review is the lawfulness of the Superior Court judge's dismissal of Carla's tort action under Mass.R.Civ.P. 41(b)(2), for failure to prosecute. It is a category of judicial act which rests in the sound discretion of the judge and we will not disturb the judge's disposition unless there has been an abuse of that discretion. Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641, 488 N.E.2d 1 (1986), and cases and authorities therein cited. The reviewing court does not substitute its judgment. Ibid. For cases which deal specifically with failure to serve a complaint with reasonable promptness, see School Comm. of Holyoke v. Duprey, 8 Mass.App.Ct. 58, 60-62, 391 N.E.2d 925 (1979); Ahern v. Warner, 16 Mass.App.Ct. 223, 227-228, 450 N.E.2d 662 (1983); Brissette v. Crantz, 23 Mass.App.Ct. 213, 214-215, 500 N.E.2d 828 (1986); Hoch v. Gavan, 25 Mass.App.Ct. 550, 552-553, 520 N.E.2d 1319 (1988). The criteria consistently set forth as especially important in considering a motion to dismiss for unreasonably tardy service of a complaint are: (1) delay for unfair tactical advantage and (2) prejudice to the defendant. The Superior Court judge found both elements present in this case.

The judge's finding that service upon the defendant had been delayed for unfair tactical advantage had foundation in the testimony of the plaintiff Carla's lawyer in the tort case, Mr. Jeffrey Newman, who offered as his principal reason for the delay that he desired to work up more potent evidence that Carla's epileptic seizures had been brought on by Gregg's battery. Further evidence, however, is commonly gathered during the pendency of proceedings. Indeed, the instruments of discovery are not available while a complaint remains up a plaintiff's sleeve, and one would suppose the search for evidence would, in some instances, be handicapped by that unavailability. It is also a startling proposition, which impugns two professions at once, that medical testimony can be better obtained on the sly. The transcript of the hearing before the motion judge discloses that he regarded Mr. Newman's rationale skeptically.

On appeal, plaintiff's appellate counsel add as a justification for not serving Carla's tort complaint on Gregg reasonably promptly that doing so would "improperly affect the probate proceedings," i.e., that the divorce case would be more justly disposed of if the defendant and the Probate Court judge were kept in the dark. That is a still more astonishing proposition because it suggests that the discretion and judgment of the Probate Court would be distorted by knowledge of the facts. As Heacock I illuminates, particularly in note 3 at 25, 520 N.E.2d at 154, a Probate Court judge can, with equilibrium, handle information about pending claims of a spouse independent of the divorce case, and the information should be made available. Although, of course, Heacock I had not been decided at the time Mr. Newman elected to delay service of the tort complaint, it should have occurred to him that...

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6 cases
  • Carpenter v. Carpenter
    • United States
    • Appeals Court of Massachusetts
    • February 25, 2009
    ...Mass.R.Dom.Rel.P. 52(a) (1984). See also Warman v. Warman, 21 Mass.App.Ct. 80, 82, 484 N.E.2d 1345 (1985); Heacock v. Heacock, 30 Mass.App.Ct. 304, 304 n. 1, 568 N.E.2d 621 (1991); Harvey, Moriarty & Ryan, Massachusetts Domestic Relations § 12-37 (4th ed. 2003). Moreover, we have not been p......
  • Brothers Bldg. Co. of Nantucket v. Yankow
    • United States
    • Appeals Court of Massachusetts
    • December 11, 2002
    ... ... c. 251, § 14 (arbitration award, if confirmed, may be enforced as any other judgment); Heacock v. Heacock, 402 Mass. 21, 23 n. 2, 520 N.E.2d 151 (1988), S.C., 30 Mass.App. Ct. 304, 568 N.E.2d ... ...
  • Shuman v. The Stanley Works
    • United States
    • Appeals Court of Massachusetts
    • June 24, 1991
    ...to vacate the dismissal. We have found no Massachusetts cases interpreting Mass.R.Civ.P. 4(j). See, however, Heacock v. Heacock, 30 Mass.App.Ct. 304, 305-306, 568 N.E.2d 621 (1991). We are, however, guided by judicial interpretation of the parallel Federal rule, absent compelling reasons to......
  • Jasmin v. Liss Brothers, Inc.
    • United States
    • Massachusetts Superior Court
    • November 26, 1997
    ... ... to effect timely service); Heacock v. Heacock, 30 ... Mass.App.Ct. 304, 305 (1991) (recognizing plaintiff may ... prevent Rule 4(j) ... ...
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