Fialkowski v. Baltromitis

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22-P-1082 Appeals Court

WILLIAM FIALKOWSKI vs. DONNA BALTROMITIS.

No. 22-P-1082.

Suffolk. June 21, 2023. – September 12, 2023.

Present: Wolohojian, Singh, & Hand, JJ.

Summary Process. Uniform Summary Process Rules. Practice,
Civil, Summary process, Judgment on the pleadings, Summary
judgment. Constitutional Law, Full faith and credit. Res
Judicata.

Summary Process. Complaint filed in the Eastern Division
of the Housing Court Department on May 7, 2021.

A motion to dismiss was heard by Irene H. Bagdoian, J., and
the case was heard by her on a motion for judgment on the
pleadings.

David M. McGlone for the defendant.
Mark W. Corner (Lauren B. Bressman also present) for the
plaintiff.

WOLOHOJIAN, J. William Fialkowski (husband) and Donna

Baltromitis (wife) divorced in Alabama after entering into a

settlement agreement that, among other things, provided for the

disposition of a jointly owned marital home located in Boston
2

(property or Boston property). In summary terms, the property

was to be listed for sale, and the parties were each to receive

fifty percent of the net proceeds from the sale. The husband

was to pay the mortgage until the property was sold; the wife

was to have sole and exclusive possession until that time. The

terms of the parties' agreement were incorporated, ratified, and

confirmed in a final decree of divorce entered by the Circuit

Court of Madison County, Alabama, on May 28, 2019.

Things did not work out as planned. Accordingly,

approximately a year after the final divorce decree, on June 8,

2020,1 the husband filed a motion for emergency relief in the

Alabama court, alleging that the wife was refusing to cooperate

in listing the Boston property, that she had taken actions in

derogation of a neighbor's property rights, and that she had

caused a lis pendens to be filed against the Boston property.

The husband asked that the Alabama court "set this case for an

expedited hearing at which it addresses the sale of the

Massachusetts property, including requiring the . . . [w]ife to

vacate the property and/or make the mortgage payment thereon."

At the time the husband sought this relief, there was a

temporary moratorium on nonessential evictions and foreclosures

1 The husband had previously, on February 25, 2020, filed a
petition for rule nisi, which is not included in the record
before us and about which we accordingly do not have details.
3

in Massachusetts during the COVID-19 emergency (temporary

eviction moratorium). See St. 2020, c. 65.

After an evidentiary hearing during which both parties

testified, the Alabama judge allowed the husband's motion for

emergency relief on June 30, 2020, when the temporary eviction

moratorium was still in effect. The judge ordered that the wife

vacate the Boston property within fourteen days, that the

husband have the exclusive right to enter into a listing

agreement for the sale of the property with a realtor of his

choice, that the wife take all steps necessary to remove the lis

pendens, and that the husband continue to make the mortgage

payments, while leaving open whether he would receive a credit

for any of those payments at the time of sale.2

After another evidentiary hearing approximately three

months later3 -- and still during the temporary eviction

moratorium -- the judge found that the wife continued to refuse

to vacate the Boston property and found the wife in contempt.

The judge sentenced the wife to 355 days of incarceration in the

county jail and awarded the husband $7,510 in attorney's fees.

2 The issues of the wife's contempt, and an award of
attorney's fees to the husband, were reserved for final hearing.

3 Neither the wife nor her counsel appeared for this
evidentiary hearing, which took place on September 22, 2020.
4

A final evidentiary hearing on the husband's motions took

place on February 2, 2021,4 by which time the temporary eviction

moratorium had expired.5 The judge found that the wife had

willfully and contemptuously refused to vacate the Boston

property, thus violating the judge's June 30, 2020 order on 612

separate occasions. The judge sentenced the wife to a total of

365 days of incarceration in the county jail, ordered that the

husband be reimbursed for mortgage payments he had made from

July 1, 2020, through the date of sale and closing of the Boston

property, and awarded the husband attorney's fees. A final

order entered on March 3, 2021 (Alabama final order).6

Having succeeded in obtaining from the Alabama court the

orders and rulings we describe above, the husband then turned to

the Massachusetts Housing Court for further relief.

4 The husband and his counsel appeared at the final hearing.
The wife did not appear; however, the wife's counsel was present
and participated fully in the hearing. Because the wife had
been ordered to appear in person for the final hearing, her
failure to appear led the judge to order that a warrant issue
for her arrest.

5 The temporary eviction moratorium expired on October 17,
2020. See Expiration of Moratorium on Evictions and
Foreclosures, https://www.mass.gov/info-details/expiration-of-
moratorium-on-evictions-and-foreclosures [https://perma.cc/5Z98-
ZRXX].

6 The wife's motion to alter, amend, or vacate the Alabama
final order was denied on April 5, 2021. Thereafter, the
Alabama final order was affirmed by the Alabama Court of Civil
Appeals on June 24, 2022.
5

Specifically, he filed a summary process action on May 7, 2021,

seeking possession of the Boston property based on the Alabama

final order. The wife did not file an answer to the complaint.

She did, however, move to dismiss the complaint on the grounds

that the notice of termination was defective and that the

Alabama orders entered during the temporary eviction moratorium

were void and, therefore, could not serve as a basis on which to

award possession to the husband. The husband opposed the motion

to dismiss and also filed a motion for judgment on the

pleadings, arguing that the Alabama final order was entitled to

full faith and credit and that the issue of possession of the

Boston property was res judicata. The wife argued that the

motion for judgment on the pleadings was premature because no

answer to the complaint was yet due, or had been filed, and the

wife's motion to dismiss was pending. The wife also argued that

disputed issues of fact precluded judgment on the pleadings.

After a hearing, in a thoughtful and comprehensive

memorandum of decision and order, the Housing Court judge denied

the wife's motion to dismiss, concluding that the notice of

termination had given her all the notice to which she was due.

The wife does not challenge this ruling on appeal. Instead,

this appeal focuses on the judge's handling of the husband's

motion for judgment on the pleadings. The judge sua sponte

converted that motion to one for summary judgment on the ground
6

that it relied on materials outside the pleadings, specifically

certified copies of the Alabama orders. The judge then gave the

Alabama final order full faith and credit and concluded that the

issue of possession in favor of the husband was res judicata.

On that basis, the judge ordered that judgment for possession

enter in favor of the husband.

On appeal, the wife argues that her due process rights were

infringed because the motion for judgment on the pleadings was

premature in that it was filed before an answer was due or

filed, and because the motion was converted to one for summary

judgment without notice to her. In addition, the wife argues

that the Alabama orders entered during the temporary eviction

moratorium were void and, as a result, were not entitled to full

faith and credit in the Housing Court.7 We affirm.

Discussion. We turn first to the wife's argument that the

husband's motion for judgment on the pleadings was premature

7 The wife raises two additional arguments on appeal that
need no discussion. First, her argument that the Housing Court
judgment violated art. 30 of the Massachusetts Declaration of
Rights is made without legal analysis or citation and does not
rise to the level of appellate argument. See Mass. R. A. P.
16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019); Kellogg
v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011).
It was also not raised below and is accordingly waived. See
Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006)
("issue not raised or argued below may not be argued for the
first time on appeal" [citation omitted]). Likewise, her
argument that the Alabama judgment was not "final," and
therefore not entitled to full faith and credit, was not raised
below and is waived.
7

because it was filed before the wife's answer was filed or due.

There is no question that the motion was made before an answer

had been filed; indeed, the wife never filed an answer despite

actively litigating the case for close to a year in the Housing

Court. But it is not true that the motion was filed before an

answer was due. A summary process action is initiated by filing

a summons and complaint in the form promulgated by the chief

administrative justice of the trial court. See Rule 2 (a) of

the Uniform Summary Process Rules (1993).8 Among other items

required on the form, the plaintiff must "choose an entry day

(any Monday) prior to which [the plaintiff] can get effective

service on the defendant and return of service." Commentary to

Rule 2 of the Uniform Summary Process Rules. The entry day is

important because the timing of many subsequent events is tied

to it. For example, the answer (together with any

counterclaims) must be filed and served no later than the first

Monday after the entry day. See Rule 3 of the Uniform Summary

Process Rules (1993); Rule 5 of the Uniform Summary Process

Rules (1980). Likewise, all pretrial motions are to be filed by

that same Monday. See Rule 6 of the Uniform Summary Process

Rules (1993).

8 "The form of [s]ummary [p]rocess [s]ummons and
[c]omplaint, as promulgated by the [c]hief [a]dministrative
[j]ustice of the [t]rial [c]ourt, shall be the only form of
summons and complaint used in summary process actions."
8

In this case, the husband filed the summons and complaint

on May 7, 2021 (which was a Friday), and the matter was entered

on the docket on May 17, 2021 (the Monday ten days forward).

See Rule 2 (d) of the Uniform Summary Process Rules. The wife's

answer was accordingly due on May 24, 2021, as were any motions

she wished to file.9 Not only did the wife not file an answer by

the deadline, she never sought or obtained leave to file an

answer late.

The wife seeks safe harbor in Mass. R. Civ. P. 12 (a) (2),

365 Mass. 754 (1974), which provides that a defendant who timely

files a motion to dismiss10 is relieved of filing an answer until

ten days after notice of the court's ruling on that motion. See

9 The husband's motion for judgment on the pleadings was
filed almost three months later, long after the wife should have
filed an answer or obtained leave to file one late. Instead,
the wife filed only a motion to dismiss, which was itself
untimely since it was filed one month after it was due under
Rule 6 of the Uniform Summary Process Rules. The husband's
motion for judgment on the pleadings was also filed late; in
fact, four months after it should have been. It does not appear
that either party obtained leave for the late filings. However,
the judge accepted the motions despite their timing and
considered them on their merits. Because, on appeal, no one
challenges the lateness of the other side's dispositive motion,
and nothing substantive turns on the delay, we rest no aspect of
our decision on the timing of either motion.

10When we use the word "timely" in this sentence, we do not
necessarily mean a motion filed within the twenty days required
under rule 12, because a motion may be "timely" for purposes of
tolling the deadline for filing an answer if the parties have
agreed to an extension of time or the court allows a motion to
extend time.
9

1973 Reporter's Notes to Mass. R. Civ. P. 12 ("[f]iling any

motion under [r]ule 12 'stops the clock' on the . . . responding

period"). But that port is not available in summary process

actions. See Rule 1 of the Uniform Summary Process Rules (1980)

(rules of civil procedure apply in summary process actions only

where they are not inconsistent with uniform summary process

rules). Instead, Rule 3 of the Uniform Summary Process Rules

requires that the answer be filed on the Monday following the

entry day, with no exception unless otherwise allowed by the

court. See Commentary to Rule 3 of the Uniform Summary Process

Rules ("The requirement that answers be filed and served no

later than the first Monday after the Monday entry day

establishes that day as the last day for filing and service of

the answer"). Indeed, Rule 6, second par., of the Uniform

Summary Process Rules provides that -- even if a motion to

dismiss is filed before the entry day (and, thus, before an

answer is due) -- the answer must nonetheless be filed in

accordance with rule 3, even if the motion is continued or taken

under advisement. See Commentary to Rule 6 of the Uniform

Summary Process Rules ("unless the motion is allowed or the

court otherwise orders, the regular schedule for summary process

cases [answer, trial date, etc.] w[ill] not be changed" by

filing motion to dismiss). In other words, the tolling of the

deadline for filing an answer that occurs when a motion to
10

dismiss is filed pursuant to Mass. R. Civ. P. 12 (a) (2) does

not occur when a motion to dismiss is filed pursuant to Rule 6

of the Uniform Summary Process Rules in a summary process

action.

In these circumstances, the husband's motion for judgment

on the pleadings was not prematurely filed, even though Mass. R.

Civ. P. 12 (c) states that a motion for judgment on the

pleadings is to be made "[a]fter the pleadings are closed."

"Closed" in this context does not necessarily mean when all

pleadings have been filed; the pleadings may be "closed" where,

as here, the time for filing them has passed without seeking or

obtaining leave to file late. As we have already noted, the

husband did not file his motion for judgment on the pleadings

until several months after the time for the answer had passed,

the wife did not seek leave to file her answer late, and even

now she offers no explanation for her failure to timely file the

answer.

Even if not procedurally premature, the wife argues that

the motion was substantively premature in the sense that the

judge could not properly apply the standard for deciding a

motion for judgment on the pleadings where no answer had yet

been filed, which requires that the facts be taken in the light

most favorable to the nonmoving party. In the wife's view,

since there was no answer, the judge could not know which facts
11

were to be taken in the light most favorable to her as the

nonmoving party. See Jarosz v. Palmer, 436 Mass. 526, 529-530

(2002) ("In deciding a rule 12 (c) motion, all facts pleaded by

the nonmoving party must be accepted as true"); Home Depot v.

Kardas, 81 Mass. App. Ct. 27, 28 (2011). But where a party,

like the wife here, fails to timely and properly deny the

factual allegations of a complaint, those allegations are deemed

admitted. See Mass. R. Civ. P. 8 (d), 365 Mass. 749 (1974)

("Averments in a pleading to which a responsive pleading is

required, other than those as to the amount of damage, are

admitted when not denied in the responsive pleading"). We have

not previously decided whether a judge may allow a motion for

judgment on the pleadings because the allegations of the

complaint were admitted by the failure to file an answer. And

we need not, and do not, decide that question here because, in

any event, the only three factual averments of the complaint

were undisputed. Specifically, the complaint alleged only (a)

that the wife had not vacated the premises, (b) the date of the

first notice of termination, and (c) that copies of the notice

and the Alabama final order were attached. Because these three

allegations were undisputed in any event, the fact that the

complaint had not been answered was no impediment to considering
12

the motion for judgment on the pleadings, nor did any harm flow

from doing so.11

The wife also argues that the judge erred in converting the

motion for judgment on the pleadings to one for summary judgment

without first giving notice to the parties. It is true that the

judge did not alert the parties that she intended to convert the

motion, or was even contemplating doing so. The best practice

most certainly is for the judge to give notice to the parties

before converting a rule 12 dispositive motion to a summary

judgment motion under Mass. R. Civ. P. 56, 365 Mass. 824 (1974).

Rule 56 motions normally entail examination of a factual record

whereas rule 12 motions do not, compare Mass. R. Civ. P. 12 and

Mass. R. Civ. P. 56, and therefore, the nonmoving party should

receive notice so that the nonmoving party has a meaningful

opportunity to present relevant factual materials that bear on

the motion. See Stop & Shop Cos. v. Fisher, 387 Mass. 889, 891-

893 (1983). Where a rule 12 motion is improperly converted to

one for summary judgment without notice, we may "affirm the

decision below only if 'it appear[ed] to a certainty that [the

nonmovant] [was] entitled to no relief under any state of facts

11The complaint also alleged that the notice of termination
was lawful, which the wife disputed. Setting aside whether this
was a purely legal conclusion rather than an allegation of fact,
the wife makes no argument on appeal that the notice was
defective.
13

which could be proved in support of the claim'" (citation

omitted). Id. at 893. Put otherwise, we may affirm only if the

wife "was not harmed by the absence of additional procedures,"

i.e., by the conversion without notice. Jarosz, 436 Mass. at

530.

For several reasons, that is the case here. To begin with,

the judge did not need to convert the motion in order to take

the Alabama final order into account. The Alabama final order

was attached to the complaint, and regardless, the judge could

have taken judicial notice of it without converting the motion.

See Jarosz, 436 Mass. at 530; Home Depot, 81 Mass. App. Ct. at

28. Equally important, the core issue presented by the motion

for judgment on the pleadings was a legal one, not a factual

one: namely, whether the Alabama final order was entitled to

full faith and credit and, if so, whether the issue of

possession of the Boston property was res judicata. Resolution

of this issue was one of law that did not require resort to

extrinsic facts, let alone to disputed ones. Cf. Heron v.

Heron, 428 Mass. 537, 538-542 (1998) (giving Nevada order

dividing marital property full faith and credit).

With the procedural arguments out of the way, we now turn

to the wife's argument that the Alabama final order should not

have been given full faith and credit because the earlier

Alabama orders on which it built violated the temporary eviction
14

moratorium. Whatever merit this argument might have (and we

express no opinion on it), the problem for the wife is that she

could not use the Housing Court case to mount a collateral

attack on the Alabama final order.12

"Full Faith and Credit shall be given in each State to the

public Acts, Records, and judicial Proceedings of every other

State." U.S. Const. art. IV, § 1. This means that the Housing

Court judge was required to give the Alabama final order the

same finality that it would receive in Alabama. See Heron, 428

Mass. at 538-539. "Divorce decrees are not an exception to full

faith and credit," id. at 539, nor are subsequent contempt

judgments enforcing the division of marital property under such

a decree.13 See Matter of Moon, 211 B.R. 483, 486 (S.D.N.Y.

12The record on appeal does not show that the wife raised
the eviction moratorium in the Alabama litigation, and this fact
was confirmed by counsel for the wife during oral argument. In
a postargument submission seeking to supplement the appellate
record, the wife contends that she did, in fact, raise the
eviction moratorium in Alabama. Accordingly, although counsel's
statement at oral argument was correct regarding the state of
the appellate record, it may not have been correct with respect
to whether the eviction moratorium had been interposed as a
defense to the Alabama contempt action. In the end, for our
purposes, it matters not whether the issue was or was not raised
in the Alabama court because, either way, res judicata acts as a
bar "not only as to matters actually presented to sustain or
defeat the right asserted in the earlier proceeding, but also as
to any other available matter that might have been presented to
that end." Whisman v. Alabama Power Co., 512 So. 2d 78, 81-82
(Ala. 1987).

13We expressly note that this case does not present -- nor
do we hold -- that the portion of the Alabama final order
15

1997) (contempt order entered by Massachusetts Probate and

Family Court entitled to full faith and credit by bankruptcy

court). "Because we must give to the [Alabama final order] the

same finality it would receive in [Alabama], [Alabama's] rules

on res judicata govern this question." Heron, supra at 540.

In Alabama, the "elements of res judicata are (1) a prior

judgment on the merits, (2) rendered by a court of competent

jurisdiction, (3) with substantial identity of the parties, and

(4) with the same cause of action presented in both actions"

(quotation and citation omitted). Burkes vs. Franklin, Alabama

Supreme Court, No. SC-2022-0649, slip op. at 10 (Nov. 18, 2022).

"If those four elements are present, then any claim that was, or

that could have been, adjudicated in the prior action is barred

from further litigation" (citation omitted). Id. at 11.

All four elements of res judicata are met here: (1) the

Alabama final order was a judgment on the merits of the

husband's contempt complaint, and was later affirmed on appeal;

(2) the wife does not challenge (nor could she) that the Alabama

court had jurisdiction to decide whether the wife was in

contempt of the divorce decree previously entered by that same

imposing a civil contempt sentence of incarceration is, or would
be, entitled to full faith and credit in Massachusetts. We deal
here only with that portion of the Alabama final order
pertaining to the possession and division of the Boston
property.
16

court; (3) the husband and wife were the parties in both the

Alabama court litigation and the Massachusetts Housing Court

litigation; and (4) the issues of possession and occupancy of

the Boston property were presented in both actions.

Accordingly, the Housing Court judge properly gave full faith

and credit to the res judicata effect of the Alabama final order

with respect to the Boston property, just as that order would be

honored in the courts of Alabama. See Heron, 428 Mass. at 538-

539.

For these reasons, the judgment of the Housing Court is

affirmed.14

So ordered.

14 The husband's request for attorney's fees is denied.