Thibbitts v. Crowley

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore LIACOS; ABRAMS
Citation539 N.E.2d 1035,405 Mass. 222
Decision Date22 June 1989
PartiesJohn F. THIBBITTS et al. 1 v. Richard P. CROWLEY, trustee. 2

Page 1035

539 N.E.2d 1035
405 Mass. 222
John F. THIBBITTS et al. 1
v.
Richard P. CROWLEY, trustee. 2
Supreme Judicial Court of Massachusetts,
Barnstable.
Argued March 6, 1989.
Decided June 22, 1989.

Page 1036

[405 Mass. 223] Jerome M. Leonard (Elizabeth Paine, Boston, with him), for defendant.

Paul D. Gallese, Natick (David K. Moynihan of New Hampshire and Silvia M. Purins, Natick, with him), for plaintiffs.

Before [405 Mass. 222] LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

[405 Mass. 223] ABRAMS, Justice.

The plaintiff (buyer) brought this suit to obtain specific performance of a contract for the sale of some thirty-four acres of land in Mashpee. During trial the parties (both lawyers) reached agreement and the judge entered a consent judgment. The judgment provided that the conveyance was to take place on or before March 9, 1987; that time was of the essence; and that if the conveyance did not take place by March 9, title would remain in the defendant (seller) free and clear of all claims of the plaintiff. When the attempted conveyance on March 9 failed to go through, the plaintiff obtained an ex parte order extending the deadline to March 23, 1987. The defendant conveyed the property to the plaintiff on March 23, 1987, for $1,250,000. At issue is the judge's authority to modify or amend the consent judgment between the parties. 3 The defendant argues that the judge exceeded his authority in modifying the consent judgment by extending the deadline. The defendant concludes that, in accordance with the original judgment, title should have remained in the defendant free and clear. We transferred the case to this

Page 1037

court on our own motion. We agree that the judge had no authority to modify the consent judgment. We therefore vacate the amended judgment and remand to the Superior Court for reconveyance of the property and for further proceedings consistent with this opinion.

1. Timeliness of the appeal. Before we reach the main issue, we address the plaintiff's argument that the case is not properly before us because the appeal is not timely.

Judgment entered by assent of the parties on January 8, 1987, as detailed supra. The parties met on March 9, 1987, to consummate the sale. At that meeting, the attorney for the [405 Mass. 224] plaintiff's bank refused to advance money unless the defendant agreed to place $140,000 in escrow to cover disputed broker's fees for which the defendant might be liable. The bank feared that if the defendant did not pay the broker, the plaintiff or the bank might be held liable. The attorney for the bank cited an Idaho case to this effect. The defendant offered to indemnify the bank, but the bank's attorney was not satisfied. The defendant would not agree to place funds in escrow, and the transaction foundered.

The plaintiff went to court the same day and, on motion, and without notice to the defendant or an opportunity for hearing, obtained an extension of the deadline from March 9 to March 23, 1987. The plaintiff alleged in his motion that the defendant's refusal to make provision for potential broker's fees contravened paragraph 6 of the consent judgment, which provided, in relevant part, that "[a]ll closing adjustments (taxes, etc.) shall be made in the manner customary in real estate conveyancing."

On March 12, 1987, the defendant moved for execution of the consent judgment. The defendant asserted that the judgment made no provision for broker's fees and that the breakdown of the sale on March 9 was not the defendant's fault. Thus, because the sale was not completed on or before March 9, title should have remained in the defendant free and clear of the plaintiff's claims, in accordance with the terms of the consent judgment.

The judge held a hearing on March 17, 1987. He told the parties to work out an agreement on the broker's fees. The defendant's attorney began to ask the judge to enter an order, but the judge interrupted him. There was no other discussion of the defendant's motion. 4 The judge did not explicitly rule on the defendant's pending motion for execution. On March 23, 1987, the defendant conveyed the property to the plaintiff.

Thereafter, the defendant twice attempted to appeal. The first notice of appeal was struck on the grounds that the docket [405 Mass. 225] sheet reflected no order of the court on the motion for execution. A different judge then denied the defendant's motion for execution, but a second notice of appeal was struck because it was filed more than thirty days following the entry of the consent judgment. 5 The defendant then moved a single justice of the Appeals Court, pursuant to Mass.R.A.P. 8(e), as

Page 1038

amended, 378 Mass. 932 (1979), for an order that the clerk of the Superior Court enter an amended final judgment reflecting the March 9 changes in the consent judgment. 6 The amended judgment duly entered on April 13, 1988, and the defendant promptly appealed. The delay of over one year from the date of the modification is thus attributable in part to the plaintiff's own opposition to the efforts of the defendant to perfect an appeal, and in any event not to the defendant's actions. 7 This appeal is therefore timely.

[405 Mass. 226] 2. Authority of the judge to amend or modify a consent judgment. The plaintiff asserts that the judge amended the consent judgment in accordance with Mass.R.Civ.P. 60(b)(5) or (6), 365 Mass. 828 (1974). 8 Rule 60(b)(5) and (6) provides: "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment ... for the following reasons ... (5) ... it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment." "[I]t is settled that such relief is extraordinary and may be granted only upon a showing of 'exceptional circumstances.' " United States Steel Corp. v. Fraternal Ass'n of Steel Haulers, 601 F.2d 1269, 1274 (3d Cir.1979), quoting Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir.1977).

The plaintiff contends that the defendant's conduct was inequitable, and that modification was therefore justified under rule 60(b)(5). The plaintiff argues that the failure of the transaction was attributable to the defendant's breach of the "adjustments" clause, which, the plaintiff asserts, included broker's fees. The defendant rebuts this argument in his brief; he had no opportunity to be heard on this matter on March 9 or March 17. All the evidence in the record before us, including statements of the plaintiff and the judge at the hearing on March 17, indicates that it was the plaintiff's bank which refused to go forward, not the defendant.

It was an error to modify the consent judgment. A consent judgment is essentially a settlement agreement that is entered as a judgment. Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956). "We are aware of no sound theory upon which it can be held that [405 Mass. 227] the court has jurisdiction to modify the terms of a valid existing contract which arose solely through the voluntary act of the parties." Moore v. Moore, 389 Mass. 21, 24, 448 N.E.2d 1255 (1983), quoting Schillander v. Schillander, 307 Mass. 96, 98, 29 N.E.2d 686 (1940). "And when, as in this case, the [plaintiff] made a free, calculated and deliberate choice to submit to an agreed upon decree rather than seek a more favorable litigated judgment, [his] burden under Rule 60(b) is perhaps even more formidable than had [he] litigated and lost." United States Steel Corp. v. Fraternal Ass'n of Steel Haulers, supra. Altering the material terms of such an agreement at the...

To continue reading

Request your trial
27 practice notes
  • Wenzel v. Sand Canyon Corp., Civil Action No. 11–30211–JCB.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 5, 2012
    ...holds that it is not. “A consent judgment is essentially a settlement agreement that is entered as a judgment.” Thibbitts v. Crowley, 405 Mass. 222, 226, 539 N.E.2d 1035 (1989). Accordingly, the Housing Court did not have authority to modify the terms of the Agreement for Judgment without W......
  • Long v. State, No. 79
    • United States
    • Court of Appeals of Maryland
    • September 17, 2002
    ...modify or substitute certain provisions," rather, the settlement must stand or fall in its entirety.); see also Thibbitts v. Crowley, 405 Mass. 222, 539 N.E.2d 1035, 1038-39 (1989); In re Liquidation of Nat'l Colonial Ins. Co., 20 Kan.App.2d 802, 892 P.2d 926, 928-29 (1995); Tridyn Industri......
  • 477 Harrison Ave., LLC v. Jace Bos., LLC, SJC-12600
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • November 8, 2019
    ...element may be taken into account if a party seeks relief from judgment. See id. at 35, 448 N.E.2d 1293. See also Thibbitts v. Crowley, 405 Mass. 222, 226-229, 539 N.E.2d 1035 (1989) (court may not relieve parties of consent judgment that delineates terms of settlement). Absent any express ......
  • 1 v. Arbella Mut. Ins. Co.., No. 09-P-56.
    • United States
    • Appeals Court of Massachusetts
    • August 30, 2010
    ...Guar. Ins. Co., 630 So.2d 179, 182 (Fla.1994) (stipulation functional equivalent of an excess judgment). See also Thibbitts v. Crowley, 405 Mass. 222, 226, 539 N.E.2d 1035 (1989) ( “A consent judgment is essentially a settlement agreement that is entered as a judgment”); Bonofiglio v. Comme......
  • Request a trial to view additional results
27 cases
  • Wenzel v. Sand Canyon Corp., Civil Action No. 11–30211–JCB.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 5, 2012
    ...holds that it is not. “A consent judgment is essentially a settlement agreement that is entered as a judgment.” Thibbitts v. Crowley, 405 Mass. 222, 226, 539 N.E.2d 1035 (1989). Accordingly, the Housing Court did not have authority to modify the terms of the Agreement for Judgment without W......
  • Long v. State, No. 79
    • United States
    • Court of Appeals of Maryland
    • September 17, 2002
    ...modify or substitute certain provisions," rather, the settlement must stand or fall in its entirety.); see also Thibbitts v. Crowley, 405 Mass. 222, 539 N.E.2d 1035, 1038-39 (1989); In re Liquidation of Nat'l Colonial Ins. Co., 20 Kan.App.2d 802, 892 P.2d 926, 928-29 (1995); Tridyn Industri......
  • 477 Harrison Ave., LLC v. Jace Bos., LLC, SJC-12600
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • November 8, 2019
    ...element may be taken into account if a party seeks relief from judgment. See id. at 35, 448 N.E.2d 1293. See also Thibbitts v. Crowley, 405 Mass. 222, 226-229, 539 N.E.2d 1035 (1989) (court may not relieve parties of consent judgment that delineates terms of settlement). Absent any express ......
  • 1 v. Arbella Mut. Ins. Co.., No. 09-P-56.
    • United States
    • Appeals Court of Massachusetts
    • August 30, 2010
    ...Guar. Ins. Co., 630 So.2d 179, 182 (Fla.1994) (stipulation functional equivalent of an excess judgment). See also Thibbitts v. Crowley, 405 Mass. 222, 226, 539 N.E.2d 1035 (1989) ( “A consent judgment is essentially a settlement agreement that is entered as a judgment”); Bonofiglio v. Comme......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT