Opinion
14-P-1778
11-04-2015
COMMONWEALTH v. NINE THOUSAND NINE HUNDRED SIXTY-SIX DOLLARS & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On May 8, 2009, officers of the State police drug task force seized $405 from the person of the claimant, Steven Fontes, and $9,966 from his residence as a result of Fontes's arrest on various drug charges and the execution of a search warrant at his home. On June 2, 2009, the Commonwealth filed a civil complaint under G. L. c. 94C, § 47(d), seeking forfeiture of the seized currency. Fontes appeals from an order of a Superior Court judge denying his motion under Mass.R.Civ.P. 60(b)(4), 365 Mass. 828 (1974), to vacate the 2010 default judgment obtained by the Commonwealth in the civil forfeiture action it pursued after Fontes's arrest on narcotics violations. We affirm.
Fontes also moves to strike the Commonwealth's brief. The motion is denied. The Commonwealth did not state that Fontes failed to file any affidavits, only that he failed to file affidavits "suggesting any reason the defendant currency should not have been forfeited." Because, as we explain below, Fontes failed to discharge his initial burden of establishing that the forfeiture judgment was void, we need not reach his failure at this late date to put forth in an affidavit any meritorious, substantive basis for contesting forfeiture. See New England Allbank for Sav. v. Rouleau, 28 Mass. App. Ct. 135, 140 (1989). Although we do not reach the legal issues concerning this statement, we find no misrepresentation that would warrant striking the Commonwealth's brief.
Discussion. "It is well established as a general matter that denial of a motion under rule 60(b) will be set aside only on a clear showing of an abuse of discretion. . . . However, an important exception exists to the principle that a motion for relief from judgment is addressed to the judge's discretion. If a judgment is void for lack of subject matter or personal jurisdiction, or for failure to conform to the requirements of due process of law, the judge must vacate it." Wang v. Niakaros, 67 Mass. App. Ct. 166, 169 (2006). Here, Fontes attacks the judgment under rule 60(b)(4), contending that the 2010 forfeiture judgment is void for insufficient service of process where the Commonwealth served process to his residence instead of the correctional facility where he was detained.
Fontes also asserts in passing that the court lacked "subject matter jurisdiction over his person." We take this to be a challenge to personal jurisdiction for lack of service. Since the court in the forfeiture action indisputably had jurisdiction over the res, i.e., the currency, and the question of its forfeiture, "there can be no serious argument that the . . . [court] usurped [subject matter] jurisdiction" in a manner that would render the judgment void. Harris v. Sannella, 400 Mass. 392, 396 (1987).
A court reviewing the denial of a motion under rule 60(b)(4) must determine "whether the record shows that the judgment from which relief is sought is void." Colley v. Benson, Young & Downs Ins. Agency, 42 Mass. App. Ct. 527, 529 (1997). To answer this question, "[w]e look to the pleadings, affidavits, and exhibits to determine whether they show that the judgment in the underlying action is void and whether the judge erred in denying [Fontes's] request for relief." Id. at 529-530. If the judgment is void, the court must vacate it. See Field v. Massachusetts Gen. Hosp., 393 Mass. 117, 118 (1984). Although "[t]here is no time limit with respect to rule 60(b)(4) motions based on void judgments," Uzoma v. Okereke, 88 Mass. App. Ct. 330, 331 (2015), "[i]n the interest of finality, the concept of void judgments is narrowly construed." Harris v. Sannella, 400 Mass. 392, 395 (1987), quoting from Lubben v. Selective Serv. Sys., 453 F.2d 645, 649 (1972).
Guided by these principles, we conclude that the forfeiture judgment below is not void. In so concluding, we need not reach the question whether Fontes should have been served at the Norfolk County jail as the record clearly demonstrates both Fontes's knowledge of the pendency of the forfeiture proceedings and his numerous unexploited opportunities to participate therein and affect the outcome thereof.
It is well-settled that a finding of improper service is not dispositive. See Colley, 42 Mass. App. Ct. at 533 ("Although it is undisputed that proper service of process was not made upon [the party seeking vacatur under rule 60(b)(4)], it does not follow from that fact alone that the court lacked personal jurisdiction over [him] in the underlying action"); Jones v. Boykan, 79 Mass. App. Ct. 464, 469 (2011), rev'd. in part on other grounds, 464 Mass. 285 (2013) ("Despite any flaw or shortcoming of a technical nature, neither was personal jurisdiction wanting nor was there a failure by the plaintiffs to abide by due process requirements"). Cf. Wang, 67 Mass. App. Ct. at 170-173 (reversing denial of relief from judgment on amended complaint for failure to effect proper service and lack of notice of new claims despite defendant's limited participation in lawsuit prior to complaint's amendment and remanding for findings regarding defendant's actual knowledge and continued participation in the litigation postamendment that would excuse specific compliance with Mass.R.Civ.P. 4, as amended, 402 Mass. 1401 [1988]).
It is undisputed that Fontes had "actual notice" of the forfeiture action "well in advance of the entry of the default judgment." Jones v. Boykan, 79 Mass. App. Ct. 464, 469 (2011), rev'd. in part on other grounds, 464 Mass. 285 (2013). By his own account, he had actual knowledge of the forfeiture proceedings as early as October 27, 2009, the date he signed his motion for a stay, claiming, inter alia, improper service.
Fontes also had a meaningful opportunity to be heard. First, the Commonwealth appears to have waited to press its default judgment motion until the expiration of the additional thirty days Fontes requested in late October 2009, during which time he had said he would submit a further filing showing, inter alia, grounds for removing the default. Second, even after he failed to make any further filing within the time that he himself requested, but still prior to entry of the default judgment, the judge specifically advised Fontes how he could intervene and afforded him additional time to comply. Despite the additional extra time and explicit guidance from the judge, the filing Fontes ultimately submitted was nonconforming and untimely. The judge denied that motion because it did not comply with rule 9A of the Rules of Superior Court (2010), it was not served on the Commonwealth, and it was not filed within the thirty-day limit he had been granted. Significantly, Fontes never appealed from that judgment. He then waited more than four years before pursuing the current challenge.
Where, as here, the judge ensured that Fontes had "a meaningful opportunity to be heard in answer to the claims raised[,] [n]o prejudice accrued to him[, and t]he judgment was not void, as matter of law, as that concept is understood by rule 60(b)(4)." Jones, 79 Mass. App. Ct. at 469. See Commonwealth v. One 1977 Pontiac Grand Prix Auto., 375 Mass. 669, 672 (1978) (rejecting claim of deprivation of constitutional guarantee of procedural due process where "[i]t is apparent from the facts that [intervener] had actual notice of the proceedings, had opportunity to participate in them, and took full advantage of the opportunity"). That Fontes failed to take full advantage of his opportunity to participate and be heard does not render the judgment void. "Properly applied [r]ule 60(b) strikes a balance between serving the ends of justice and preserving the finality of judgments." Harris, 400 Mass. at 395. On this record, we conclude that the ends of justice would be ill served by upsetting the finality of the forfeiture judgment now, all these years later, when Fontes so clearly had ample opportunity to prevent the default judgment from issuing in the first place.
Order dated September 15, 2014, denying motion to vacate default judgment and return all property, affirmed.
By the Court (Katzmann, Grainger & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 4, 2015.