LUCY JONES, Individually and as Administratrix, & Others v. GARRY TEIXEIRA & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-795

LUCY JONES, individually and as administratrix,1 & others2

vs.

GARRY TEIXEIRA & others.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants Garry Teixeira and Keith O. D. Moses

(collectively, Teixeira) appeal from a Superior Court judge's

January 8, 2024 order that, in substance, vacated the judge's

earlier order imposing monetary sanctions under G. L. c. 231,

§ 6F. Teixeira argues that the judge (1) lacked jurisdiction to

vacate her earlier order and (2) abused her discretion in doing

so. We affirm.

1 Of the estate of William Owens.

2 Nicole Jones and Sierra Jones.

Karlena Zachery, Keith O. D. Moses, and Gordon Spencer.
3

Zachery and Spencer are not parties to this appeal.
Background. In 2016, the plaintiffs, represented by

attorney Paige Munro-Delotto, brought this legal malpractice

action against the defendants. In early 2020, Munro-Delotto was

allowed to withdraw and the action was dismissed with prejudice.

Teixeira then filed a motion for sanctions against Munro-Delotto

and the plaintiffs under G. L. c. 231, § 6F (§ 6F), and Mass. R.

Civ. P. 11, as amended, 456 Mass. 1401 (2010) (rule 11). The

motion sought $46,758.36 in attorney's fees and costs. Despite

having withdrawn from the case, Munro-Delotto filed an

opposition to the motion, arguing that no sanctions against her

or the plaintiffs were warranted.

On November 12, 2020, the judge entered an order (November

2020 order) that stated in its entirety: "After review of the

papers filed by the defendant and the opposition filed by the

plaintiff and after careful consideration [the court] finds that

the defendant is entitled to legal fees under c. 231 6F in the

amount of $46,758.36." The judge did so without holding the

hearing required by § 6F or making the findings § 6F requires.4

The order did not address whether sanctions were appropriate

under rule 11 and did not specify whether the order ran against

4 § 6F allows the imposition of sanctions "after a hearing"
and requires a judge to state "the specific facts and reasons"
underlying the finding that sanctions are appropriate. § 6F,
first par.

2
Munro-Delotto, the plaintiffs, or both. No appeal was filed

within the ten-day appeal established by G. L. c. 231, § 6G.5

On December 9, 2020, Teixeira served on Munro-Delotto,

under Superior Court Rule 9A (rule 9A), a motion for

clarification, asking the judge to clarify that the November

2020 order applied to Munro-Delotto individually as well as to

the plaintiffs. The motion noted that the judge had neither

entered specific findings as required by § 6F nor addressed

Teixeira's request for sanctions under rule 11. On December 24,

Munro-Delotto served a combined opposition to the motion for

clarification and cross motion for reconsideration and

modification of the November 2020 order.6 The cross motion

argued that no sanctions were appropriate and, in effect, that

the November 2020 order should be vacated.7 The rule 9A package

was filed on December 31, 2020.

5 Munro-Delotto filed a notice of appeal, on behalf of
herself only, on December 14, 2020, outside the ten-day appeal
period.

6 Munro-Delotto filed the opposition and cross motion "on
behalf of herself, and if applicable and proper, for the benefit
of her unrepresented, former clients, the [p]laintiffs."

7 Teixeira prepared a reply memorandum arguing, among other
things, that insofar as the filing sought reconsideration and
modification, it contained no motion, only a memorandum, and
thus failed to comply with rule 9A. In response, Munro-Delotto
filed an emergency motion to treat her previous filing as
compliant with rule 9A. Teixeira opposed that emergency motion.
Although the judge never expressly addressed this rule 9A

3
On July 16, 2021, the judge held a motion hearing and, on

January 8, 2024, she issued the four-page order that gave rise

to this appeal.8 In the order, the judge stated that she had now

reviewed the entire record of the case, as well as the standards

for ordering sanctions under § 6F and rule 11. She had

initially awarded sanctions "because of the excessive delays in

the case attributable to the plaintiffs, more specifically

Attorney Monro-Delotto's personal circumstances." Although the

judge had initially questioned whether Munro-Delotto's medical

conditions in fact prevented her from working, the judge's more

recent review of the entire record left her with no "sufficient

grounds to doubt Attorney Munro-Delotto's veracity."

Based on this review, the judge found no reason to believe

that Munro-Delotto's or the plaintiffs' conduct sank to the

level that warranted sanctions under § 6F or, as to Munro-

Delotto, under rule 11. The judge noted that awards under § 6F

"should be reserved for rare and egregious cases," Police Comm'r

of Boston v. Gows, 429 Mass. 14, 19 (1999), and that "this is

dispute, the judge's allowance of Munro-Delotto's motion for
reconsideration and modification was an implicit ruling that the
motion sufficiently complied with rule 9A.

8 The record does not explain the reason for the regrettable
delay between the motion hearing and the ruling. Nevertheless,
Teixeira cites no authority, and we know of none, suggesting
that that delay affected the judge's power to grant the relief
Munro-Delotto requested.

4
not such a case." The judge therefore denied Teixeira's motion

for clarification, allowed Munro-Delotto's cross motion for

reconsideration and modification, and vacated the November 2020

order. This appeal followed.

Discussion. 1. Superior Court's jurisdiction. Teixeira

first argues that after expiration of the ten-day period for

appealing the November 2020 order, or at least after expiration

of the twenty-one-day period for seeking reconsideration under

Superior Court Rule 9D, the judge had no jurisdiction to grant

Munro-Delotto any relief from that order. Teixeira acknowledges

that a court would retain jurisdiction under, among other rules,

Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974) (rule 60 (b)), but

he argues that Munro-Delotto failed to invoke rule 60 (b). We

are unpersuaded.9

The Supreme Judicial Court has recently reaffirmed "the

long-standing principle that judges have the flexibility to

decide a motion based on its substance, rather than its title."

Care & Protection of Rashida, 488 Mass. 217, 233 (2021), S.C.,

489 Mass. 128 (2022). See Pentucket Manor Chronic Hosp., Inc.

9 Little discussion is required of Teixeira's related
argument that the judge could not use Teixeira's own motion for
clarification as a vehicle for granting relief to Munro-Delotto.
The judge expressly granted such relief based on granting Munro-
Delotto's motion for reconsideration and modification, while
denying Teixeira's motion for clarification.

5
v. Rate Setting Comm'n, 394 Mass. 233, 236 (1985) ("substance,

not labels, should control in determining [nature of]

postjudgment motion"). Rule 60 (b) allows a court to "relieve a

party or his legal representative from a final judgment, order,

or proceeding for the following reasons: (1) mistake,

inadvertence, surprise, or excusable neglect" (emphasis added).

Rule 60 (b) (1). This provision applies to acts of the court as

well as to those of parties. Chavoor v. Lewis, 383 Mass. 801,

805 n.3 (1981).

The cognate Federal rule has been construed as allowing

correction of "a judge's mistakes of law," and the legal meaning

of the word mistake commonly includes mistakes of fact as well

as those of law. Kemp v. United States, 596 U.S. 528, 534

(2022) (interpreting Fed. R. Civ. P. 60 [b] [1]). See Triantos

v. Guaetta & Benson, LLC, 52 F.4th 440, 445 (1st Cir. 2022)

(district court abused discretion in denying attorney's motion

under Fed. R. Civ. P. 60 [b] [1] for relief from order imposing

sanctions under Fed. R. Civ. P. 11).

Thus, the rule allowed the judge, once she realized her

mistake in issuing the November 2020 order, to relieve Munro-

Delotto from that order.10 Munro-Delotto's request for such

10Because rule 60 (b) allows relief from a final order, we
need not address whether an order awarding attorney's fees under
§ 6F may be considered a final judgment. See Fronk v. Fowler,

6
relief was timely, having been filed well within the one-year

limit set forth in Rule 60 (b). That Munro-Delotto's motion for

"reconsideration and modification" did not cite any specific

court rule authorizing such relief did not bar the judge from

granting relief of the sort authorized under rule 60 (b) (1).

See Rashida, 488 Mass. at 233; Pentucket Manor, 394 Mass. at

236.

2. Abuse of discretion. Teixeira argues that the judge's

November 2020 order was correct and that she abused her

discretion by vacating it. A rule 60 (b) (1) motion "is

properly addressed to the sound discretion of the trial judge,"

and "[t]herefore, while appellate courts have not hesitated to

intercede when the circumstances so required, . . . a judge's

decision will not be overturned, except upon a showing of a

clear abuse of discretion." Scannell v. Ed. Ferreirinha &

Irmao, Lda, 401 Mass. 155, 157-158 (1987). "This requires us to

determine whether the motion judge's decision resulted from 'a

clear error of judgment in weighing the factors relevant to the

decision . . . such that the decision falls outside the range of

reasonable alternatives.'" Chamberland v. Arbella Mut. Ins.

81 Mass. App. Ct. 326, 331-332 & n.8 (2012). The November 2020
order here was undoubtedly final, as it required no further
proceedings in the Superior Court and was appealable under G. L.
c. 231, § 6G.

7
Co., 91 Mass. App. Ct. 680, 684 (2017), quoting L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

There was no abuse of discretion here. The judge's

November 2020 order consisted of a single sentence, entered

without either the hearing or the specific findings required by

§ 6F. The judge's four-page January 8, 2024 order expressly set

forth the standards for sanctions under both § 6F and rule 11,

and applied those standards to the facts of this case. The

judge determined, on further reflection, that her initial doubts

about Munro-Delotto's veracity were not sufficiently found in

the record. Accordingly, the judge ruled that Munro-Delotto had

neither presented claims that were "wholly insubstantial,

frivolous and not advanced in good faith," § 6F, nor advanced

any motion in bad faith, without "a good ground to support it,

[or] for delay." Rule 11. In short, she ruled that this was

not one of those "rare and egregious cases" that warranted

sanctions. Police Comm'r of Boston, 429 Mass. at 19.

Any review of a judge's order under § 6F is based on the

subsidiary facts as found by the judge. Danger Records, Inc. v.

Berger, 444 Mass. 1, 9 (2005); Farnum v. Mesiti Dev., 68 Mass.

App. Ct. 419, 421 n.4 (2007). Assuming without deciding that

such findings may be disregarded if clearly erroneous, we are

not inclined to disregard a credibility finding. The judge here

8
had multiple opportunities to interact with Munro-Delotto at

hearings over the life of the case, and she has reviewed the

entire record of the case, including portions that Teixeira has

not placed before us. We have no basis on which to reject the

judge's finding that there was insufficient basis to find Munro-

Delotto not credible. Accordingly, we do not disturb the

judge's January 8, 2024 order determining that sanctions were

unwarranted under § 6F or rule 11 and therefore vacating the

November 2020 order.

3. Appellate jurisdiction. Because the January 8, 2024

order addressed sanctions under rule 11 as well as § 6F, we have

assumed our jurisdiction over the § 6F issue. We do so

notwithstanding that an appeal of "a decision on a motion

pursuant to [§ 6F]" must be filed within ten days of receipt of

the decision11 and proceeds to a single justice of this court

rather than a panel. See G. L. c. 231, § 6G. Cf. Troy Indus.,

Inc. v. Samson Mfg. Corp., 76 Mass. App. Ct. 575, 583–584 (2010)

(discussing complications arising when party seeks to appeal

§ 6F order incorporated in final judgment on merits); Bailey v.

Shriberg, 31 Mass. App. Ct. 277, 282-284 (1991) (same). If we

lacked jurisdiction over the § 6F issue, we would dismiss the

11Teixeira filed his notice of appeal on February 7, 2024,
more than ten days after the January 8, 2024 order.

9
appeal in part, leaving the January 8, 2024 order undisturbed as

it relates to sanctions under § 6F. Instead, we have assumed

that that order was not a decision on a motion pursuant to § 6F

and thus is properly before us, allowing us to resolve the full

dispute on the merits by affirming the order in its entirety.12

Order dated January 8, 2024,
affirmed.

By the Court (Desmond,
Sacks & Brennan, JJ.13),

Clerk

Entered: July 1, 2025.

12Teixeira's request for appellate attorney's fees and
double costs is denied.

13 The panelists are listed in order of seniority.

10