Kim Kaplan v. Joanne Thomas.

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

22-P-570

KIM KAPLAN

vs.

JOANNE THOMAS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23

Following a summary process bench trial in the Housing

Court, judgment entered awarding possession of the apartment the

defendant (tenant) lived in to the plaintiff (landlord).1 The

tenant filed a notice of appeal, followed by a motion labeled as

one "for relief from judgment [under] [Mass. R. Civ. P.] 60

(b)," 365 Mass. 828 (1974), and "Motion to vacate" (motion for

relief from judgment). A judge dismissed the tenant's direct

appeal as untimely and denied her motion for relief from

judgment. On appeal, the tenant's primary argument is that the

judge wrongly denied her motions to continue and for relief from

1On the second day of trial, the judge denied the tenant's
motion to continue.
judgment where she was forced to trial without counsel and

without the evidence needed to support her position.

We review a motion for relief from judgment for abuse of

discretion. See Fort Point Invs., LLC v. Kirunge-Smith, 103

Mass. App. Ct. 758, 763 (2024). Here, the tenant's March 30,

2022 motion for relief from the February 8, 2022 judgment

indicated that it was pursuant to Mass. R. Civ. P. 60 (b), and

the reason given was "Motion to Vacate (see attachments)."

According to the motion judge, who was also the trial judge, the

attachments consisted of "text messages, tenancy agreements and

letters." After review, the judge determined that these

documents were all available to the tenant at the time of trial

but that she had failed to bring them to court.2 The failure to

present at trial available evidence, or evidence that could have

been obtained by reasonable diligence, is not a ground to vacate

a judgment. See Cahaly v. Benistar Prop. Exch. Trust Co., 451

Mass. 343, 361, 366-368 (2008); Poskus v. Lombardo's of

2 The judge noted that one document was dated
postjudgment -- a letter from the inspectional services
department of the city of Worcester, indicating that an
inspection had been done on February 23, 2022 (one day after the
tenant's late-filed notice of appeal) and listing violations of
the State sanitary code. The judge commented that the tenant
could have easily obtained such a document earlier by calling
the board of health.

2
Randolph, Inc., 48 Mass. App. Ct. 527, 528 (2000), and cases

cited.

On appeal, the tenant acknowledges that the evidence she

presented in support of her motion for relief from judgment

existed prior to trial. She contends, however, that she was

unable to present it because she had given the evidence to her

trial attorney, and was relying on her trial attorney to present

it at trial. She explains that, on the scheduled trial date of

December 30, 2021, her trial attorney urged her to enter into a

settlement and indicated that he would not represent her at

trial. Nevertheless, the transcript of the December 30, 2021

trial reflects that the tenant's attorney told the judge that he

was ready to go forward with trial. Trial in fact began but was

suspended when it was discovered that there was another occupant

of the premises who may not have received proper notice of the

eviction proceedings.

Trial counsel did file a motion to withdraw just before the

next trial date of February 3, 2022. On that date, the tenant's

counsel explained that the tenant had requested him to withdraw.

The judge asked the tenant whether she wanted him to withdraw.

Although the tenant sought to clarify that it was the attorney

who initially indicated that he would not represent her at

trial, she agreed that she also wanted him to withdraw at that

3
point. The tenant requested a continuance to get new counsel.

Based on the tenant's representation that her counsel wanted to

withdraw from the case as of the last trial date, the judge

determined that she had had sufficient time to obtain successor

counsel. When the judge asked the tenant to proceed with her

defense, the landlord's prima facie case having been established

on the first trial date, the tenant stated that she did not have

any of her evidence. The judge proceeded with the tenant's

testimony, asking about her defenses and counterclaims.

Ultimately, the judge ruled in favor of the landlord on his

claim for possession and against the tenant on her

counterclaims.

Although the propriety of the judge requiring the tenant to

go forward to trial without counsel and without her documentary

evidence was not squarely before the trial judge when he

considered the tenant's motion for relief from judgment, the

tenant raises that issue on appeal. To the extent the issue is

preserved, we discern no abuse of discretion. See Care and

Protection of Quinn, 54 Mass. App. Ct. 117, 120 (2002) (whether

to grant continuance of trial is matter within sound discretion

of trial judge and will not be reversed absent showing of

abuse). The tenant had indicated that she knew of issues

between herself and her attorney as of the first trial date and

4
that she had pursued multiple avenues to obtain successor

counsel. A month later, she had no prospects for another

attorney. The judge could well have determined that a further

continuance was unlikely to yield better results. Likewise, the

tenant appeared on the second day of trial aware that her trial

counsel was likely to withdraw. The judge could well have

determined that she should have been prepared to go to trial.

Indeed, the judge found that the plaintiff's motion for a

continuance on the second day of trial, after she had requested

and had been denied a continuance on the first day of trial, was

an attempt to delay the trial without good cause. See Mass. R.

Civ. P. 40 (b), 365 Mass. 802 (1974) ("Continuances shall be

granted only for good cause"). Given the history of the case,

including that it had been pending for approximately eight

months and involved a no-fault eviction upon thirty days' notice

to quit, we discern no abuse of discretion in the judge's denial

of the tenant's motion to continue the trial. See Morse v.

Ortiz-Vazquez, 99 Mass. App. Ct. 474, 480 (2021) (summary

process rules must be interpreted and applied to "secure the

5
just, speedy, and inexpensive" resolution of the case [citation

omitted]).3

Order denying motion to
continue affirmed.

Order dated April 1, 2022,
dismissing defendant's appeal
and denying motion for relief
from judgment, affirmed.

By the Court (Desmond, Shin &
Singh, JJ.4),

Clerk

Entered: June 25, 2024.

3 The tenant mentions in her brief that the trial court's
notice of judgment went to her attorney, even though he had
withdrawn from the case, and that this caused her original
notice of appeal from the judgment to be untimely. Yet, the
tenant acknowledges that her attorney forwarded to her the
notice of judgment so that she received it with four days
remaining to file a timely notice of appeal.

The tenant also mentions in her brief that "[t]his appeal
is based on the court's decision on the hearing that the
[tenant] missed on April 19, 2022," and argues that she received
late notice of that hearing. However, the tenant filed a
February 22, 2022 notice of appeal from the February 8 judgment,
which was untimely, and an April 11, 2022 notice of appeal from
the judge's April 1, 2022 order (dismissing the original notice
of appeal and denying her motion for relief from judgment),
which was timely. That is the basis of this appeal. The April
19, 2022 hearing related to an April 11, 2022 motion for relief
from judgment, which was denied on April 19, 2022. No appeal
was taken from that ruling.

4 The panelists are listed in order of seniority.

6