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Institution for Savings in Newburyport v. Langis, et al. (Lawyers Weekly No. 11-023-18)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 17-P-4 Appeals Court INSTITUTION FOR SAVINGS IN NEWBURYPORT AND ITS VICINITY vs. MATTHEW LANGIS & another.[1] No. 17-P-4. Essex. November 6, 2017. – February 27, 2018. Present: Kinder, Desmond, & Sacks, JJ. Judgment, Default, Relief from judgment. Practice, Civil, Default, Relief from judgment. Civil action commenced in the Superior Court Department on December 19, 2014. A motion for relief from judgment, filed on February 26, 2016, was heard by Elizabeth M. Fahey. Eric P. Magnuson (Joseph T. Toomey also present) for the plaintiff. Kevin J. O’Connor for Infinex Investments, Inc. SACKS, J. This appeal raises a question regarding the procedure to be followed when a plaintiff files a properly supported application for default judgment for failure to serve interrogatory answers under Mass.R.Civ.P. 33(a)(4), as appearing in 436 Mass. 1401 (2002), but no final judgment can enter because damages have not yet been determined. The question is whether a defendant seeking relief from the initial action on such an application must satisfy the “excusable neglect” standard under Mass.R.Civ.P. 60(b)(1), 365 Mass. 828 (1974), requiring “unique or extraordinary” circumstances, Feltch v. General Rental Co., 383 Mass. 603, 614 (1981) (quotation omitted), or merely the less demanding “good cause” standard for removal of a default under Mass.R.Civ.P. 55(c), 365 Mass. 822 (1974), i.e., “a good reason for failing to . . . defend in a timely manner and . . . meritorious defenses.” Johnny’s Oil Co. v. Eldayha, 82 Mass. App. Ct. 705, 708 (2012). Our prior decisions strongly suggest, and we now determine, that rule 55(c)’s good cause standard governs. Background. The case arises out of a complaint filed in the Superior Court involving a commercial dispute. On December 18, 2015, after the defendant Infinex Investments, Inc. (Infinex), missed a previously extended deadline for serving interrogatory answers on the plaintiff, Institution for Savings in Newburyport and its Vicinity (IFS), IFS served a final request for answers pursuant to rule 33(a)(3). On January 28, 2016 — the day after Infinex’s final rule 33(a)(4) deadline for serving such answers expired — IFS filed a properly supported “application for default judgment,” pursuant to Mass.R.Civ.P. 33(a)(6), as appearing in 454 Mass. 1404 (2009), which included a request for a hearing on damages, pursuant to Mass.R.Civ.P. 55(b)(2), as amended, 463 Mass. 1401 (2012). IFS’s application and accompanying […]

Gallagher v. First Assistant Clerk-Magistrate of the Newburyport District Court, et al. (Lawyers Weekly No. 10-190-14)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11592 ROBERT GALLAGHER vs. FIRST ASSISTANT CLERK-MAGISTRATE OF THE NEWBURYPORT DISTRICT COURT & others.[1] November 28, 2014 Supreme Judicial Court, Superintendence of inferior courts. Practice, Civil, Attorney’s fees, Small claims procedure. District Court, Small claims procedure. Robert Gallagher appeals from a judgment of a single justice of this court dismissing his petition for relief under G. L. c. 211, § 3. In his petition, he sought relief from final judgments entered in two cases in the District Court Department. In one of the cases, after Gallagher prevailed on a complaint brought against him under the harassment prevention statute, G. L. c. 258E, the judge failed to act on his request for attorney’s fees. In the other case, judgment was entered against him on a G. L. c. 93A claim that he brought in the small claims session. As to the former case, Gallagher had, but did not pursue, adequate alternative remedies, both in the trial court and through the ordinary appellate process.[2] “Our general superintendence power under G. L. c. 211, § 3, is extraordinary and to be exercised sparingly, not as a substitute for the normal appellate process or merely to provide an additional layer of appellate review after the normal process has run its course.” Votta v. Police Dep’t of Billerica, 444 Mass. 1001, 1001 (2005). See Foley v. Lowell Div. of the Dist. Ct. Dep’t, 398 Mass. 800, 802 (1986), and cases cited (“Where a petitioner can raise his claim in the normal course of trial and appeal, relief will be denied”). As to the latter case, it is well established that “a plaintiff who chooses to proceed in the small claims session waives the right to appeal from any adverse judgment, and likewise is not entitled to invoke this court’s extraordinary power of general superintendence in lieu of an appeal to compel review of the judgment.” Zullo v. Culik Law P.C., 467 Mass. 1009, 1009 (2014), and cases cited. The single justice properly declined to grant extraordinary relief.[3] Judgment affirmed. The case was submitted on briefs. Robert J. Gallagher, pro se. Bryan F. Bertram, Assistant Attorney General, for the Commonwealth. [1] A Justice of the Lawrence District Court, the clerk-magistrate of the Lawrence District Court, Stephen D’Angelo, Mary McCauley-Manzi, and Catherine W. Wnek. [2] For example, Gallagher could have moved […]

Welch-Philippino, et al. v. Zoning Board of Appeals of Newburyport, et al. (Lawyers Weekly No. 11-111-14)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1586 Appeals Court CYNTHIA WELCH-PHILIPPINO & another[1] vs. ZONING BOARD OF APPEALS OF NEWBURYPORT & others.[2] No. 13-P-1586. Suffolk. June 2, 2014. – September 9, 2014. Present: Grasso, Vuono, & Rubin, JJ. Zoning, Nonconforming use or structure, Special permit, By-law. Civil action commenced in the Land Court Department on April 7, 2011. The case was heard by Alexander H. Sands, III, J. Kevin W. Lawless for the plaintiff. Ryan P. McManus (Diane C. Tillotson with him) for Port Associates Limited Partnership & another. GRASSO, J. Cynthia Welch-Philippino (Philippino) appeals from a Land Court judgment determining that the planned reconstruction of a nursing home (the project) by Port Associates Limited Partnership and Whittier Health Network, Inc. (the defendants), is permissible as of right under G. L. c. 40A, § 6. Philippino principally challenges the trial judge’s ruling that a dimensionally conforming commercial structure is not, by virtue of its employment for a nonconforming use, a nonconforming structure for purposes of the first sentence of G. L. c. 40A, § 6, first par. We conclude, as did the trial judge, that where the project does not work a “change or substantial extension” (ibid.) of the preexisting nonconforming commercial use, the reconstruction and replacement of the existing dimensionally conforming structure with a new dimensionally conforming structure is lawful as a matter of right and not subject to the second sentence of G. L. c. 40A, § 6, which provides that preexisting nonconforming structures or uses may only be extended or altered by special permit. 1. Background. The defendants’ 100-bed nursing home facility, built in 1968, is a dimensionally conforming commercial structure situated on a large (5.5 acre) conforming lot in a residential zone. Use of the facility as a nursing home pre-dates the adoption of the Newburyport zoning ordinance, and thus is a lawful preexisting nonconforming use. The defendants plan to replace the old structure with a modernized 121-bed facility that will meet the dimensional requirements of the current zoning ordinance. The Newburyport zoning board of appeals (board) issued a special permit that authorized the defendants to proceed with the project, and abutters Philippino and her husband appealed under G. L. c. 40A, § 17. After trial, a Land Court judge concluded that the project (1) does not constitute a “change or substantial extension” of the lawful preexisting nonconforming commercial use, and (2) is therefore permissible […]