Massachusetts Appeals Court, 1983

Woo v. Moy

Massachusetts Appeals Court · Decided December 15, 1983

17 Mass. App. Ct. 949; 457 N.E.2d 663; 1983 Mass. App. LEXIS 1554

Cases that cite this one

33 later published cases cite this decision. The 25 that cite it most often are listed here.

Wells Fargo Bank N.A. v. Bobadilla (Mass. App. Ct. 2019)
Peckham v. Erikson (Mass. Dist. Ct., App. Div. 1997)
Weeks v. Magliozzi (Mass. Dist. Ct., App. Div. 1987)
William M. Milka v. Anita Milka. (Mass. App. Ct. 2025)
Kennedy v. Beth Israel Deaconess Medical Center, Inc. (Mass. App. Ct. 2009)
Hudson Savings Bank v. Plante (Massachusetts Superior Court 2008)
Oliveira v. Cappello Trucking, Inc. (Massachusetts Superior Court 2007)
McFarlane v. Commonwealth (Massachusetts Superior Court 2007)
Dell'Aquila v. Commerce Insurance (Massachusetts Superior Court 2007)
Raheman v. Raheman (Mass. App. Ct. 2003)
Care & Protection of Georgette (Mass. App. Ct. 2002)
Massachusetts Higher Education Assistance Corp. v. Campbell (Mass. Dist. Ct., App. Div. 2002)
Emmanuel v. Children's Hospital (Mass. Dist. Ct., App. Div. 2001)
Building Commissioner v. Dispatch Communications of New England, Inc. (Mass. App. Ct. 2000)
Rezendes v. Rezendes (Mass. App. Ct. 1999)
Pielech v. Massasoit Greyhound, Inc. (Mass. App. Ct. 1999)
Bobo v. Mitsubishi Motors Corp. (Massachusetts Superior Court 1999)
Massachusetts Electric Co. v. Vinal (Mass. Dist. Ct., App. Div. 1999)
Chu Tai v. City of Boston (Mass. App. Ct. 1998)
Mannor v. Mannor (Mass. App. Ct. 1998)
Fidelity Trust Co. v. Brennan (Mass. Dist. Ct., App. Div. 1993)
Network Personnel Services, Inc. v. Ophnet, Inc. (Mass. Dist. Ct., App. Div. 1992)
Trost v. New World Realty Corp. (Mass. Dist. Ct., App. Div. 1992)
Bank of Boston v. Bloomenthal (Mass. Dist. Ct., App. Div. 1992)
Lewandowski v. Borghi (Mass. Dist. Ct., App. Div. 1989)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Prior to the hearing on their motion for summary judgment, the plaintiffs took the deposition of the defendant Moy, who was the president and treasurer of the co-defendant, 100 Tremont Street Corporation. That deposition discloses disputes over material facts concerning the plaintiffs’ complaint, which alleged that the defendants had invited investment in a Chinese restaurant, that the plaintiffs had parted with money, and that they had not received stock in the restaurant corporation, as had been deceitfully promised. The deposition was not filed in court nor, in any way apparent on the record, called to the attention of the motion judge. Indeed, the motion judge expressly disavows that the deposition was brought to his notice. See S. Kemble Fischer Realty Trust v. Board of Appeals of Concord, 9 Mass. App. Ct. 477, 478-480 (1980). On the basis of the plaintiffs’ unopposed affidavits, summary judgment entered. Community Natl. Bank v. Dawes, 369 Mass. 550, 553 (1976). Vaughan v. Commonwealth, 377 Mass. 914 (1979). United States Fid. & Guar. Co. v. N.J.B. Prime Investors, 6 Mass. App. Ct. 455, 456 n.3 (1978).

After judgment entered for the plaintiffs, the defendants timely filed motions under Mass.R.Civ.P. 59(e), 365 Mass. 828 (1974), to amend or alter the judgment. New counsel for the defendants about three weeks later moved for relief from judgment under Mass.R.Civ.P. 60(b)(1) & (6), 365 Mass. 828 (1974). Those motions were denied. On appeal the only issue pressed by the defendants is the denial of the motion for relief from judgment.

Such a motion is addressed to the discretion of the motion judge. Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 429 (1979). The defendants ask us to reverse the action of the Superior Court judge on the ground that five of the six factors enumerated in Berube at 430-431 as warranting relief from judgment are present in this case. Their argument overlooks that aspect of the Berube opinion, at 433-434, which emphasizes that, in the final analysis, action on a rule 60(b) motion is discretionary and appellate courts will show marked deference to the lower court’s resolution of such a motion. Summary judgment is not a casual procedure. It is a proceeding that bids fair to be dispositive of the *950case and casual or supine reaction to a moving party’s affidavits is not a minor error. This was not a case where counsel for the party resisting summary judgment could not be present. Compare USTrust Co. v. Kennedy, ante 131, 137 (1983). Compare the comparatively minor error in Berube and the default judgment in Mullen Lumber Co. v. F.P. Assoc., Inc., 11 Mass. App. Ct. 1018, 1019 (1981). The refusal below to vacate judgment does not manifest “arbitrary determination, capricious disposition, or whimsical thinking,” Davis v. Boston Elev. Ry., 235 Mass. 482, 496 (1920), or an “idiosyncratic choice,” Restatement (Second) of Judgments § 74, comment g (1982). The judge reexamined the record, heard argument, and considered the opportunity counsel had prior to his original order for judgment to amplify the record. He voiced his concern about the finality of litigation, an appropriate consideration when acting on a rule 60(b) motion. Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. at 434. We might well have acted differently on the motion to vacate judgment, but we cannot say that the judge abused his discretion.

Daniel F. Cashman (Gail M. Buschmann with him) for the defendants. Geoffrey D. Wyler for the plaintiffs.

Judgment affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.