21 Mass. App. Ct. 958 | Mass. App. Ct. | 1986
The plaintiff, Carver, in July, 1980, commenced partition actions against the defendant, Waldman, in the Probate Courts of Norfolk and Plymouth countries relating, respectively, to properties in Brookline and Hull. He alleged that he held the properties in common tenancy with Waldman. Intervening in the action were Lynda and Sheryl Waldman, the defendant’s daughters, claiming together a one-third interest in the two properties as beneficiaries of a certain Waldman-Carver trust which allegedly held the equitable titles to both. These suits figured in a larger dispute between Carver and Waldman whose families had formerly been associated not only in business but in social life.
After consolidation of the partition actions in the Probate Court for Plymouth County, they came to trial on August 13, 1984. At that time the parties begged leave to continue discussions that might lead to settlement; and, in fact, on that day an agreement was reached covering the partition actions and other matters.
Certain matters had to be cleared up before the judgment could be prepared in appropriate detail and presented to the judge. Carver and the interveners presented forms differing in some respects. Waldman balked. New counsel appeared for him on October 17, 1984, and filed a brief to persuade the judge to disallow judgment. On November 16, however, the judge entered a judgment (corrected copy). On November 21 yet another counsel filed an appearance for Waldman, and on November 23 he moved to stay the entry of judgment and restore the partition actions. Becoming aware, it seems, that judgment had already entered, counsel on November 28 served, and on November 29 filed, an “amended” motion to vacate the judgment. This the judge denied on December 18. On December 31 counsel filed a notice of appeal (dated December 26) to this court from the judgment of November 16 and the denial on December 18 of his motion to vacate that judgment.
There is a way out for Waldman, and that is to say that the motion to vacate, considered as a rule 59(e) motion, should be read back to the date of the motion to stay the entry of the judgment which, however, had already been entered. This has some plausibility, as the content of the motions was similar (and the second was called an “amended” motion). By this route, although with some doubt, we reach the substance.
2. Waldman’s motion to vacate averred that he, a man seventy-five years old, “did not fully understand the import” of the settlement. But Waldman had joined in the discussion with the judge on August 13 and the judge, basing himself on personal observation, could pass on this claim about Waldman’s condition. (Of course, Waldman, like the other parties, was represented by counsel.) Again, the motion argued that the court did not have “jurisdiction” to order the dismissal with prejudice of pending Superior Court actions. But the parties had agreed to such withdrawal as part of a settlement, and the agreement could be embodied in a judgment.
Finally, the motion claimed that a feature of the agreement was predicated on a mutual belief as to the value of corporate securities to be used to adjust interests (see n.l), yet this value, the motion asserted, was not the one used as a basis for the judgment. The motion did not support with evidence either the existence of the predicate, or the materiality or injustice of the alleged deviation from it. Apart from this, the motion overlooked the necessary understanding that, while the judgment was to follow the lines of the agreement, within those limits it was for the judge to determine conflicts between the parties as to particulars. Insofar as the judge made such decisions in the present case, they are not shown to be erroneous.
This is not a case where a settlement is contingent upon the parties’ agreeing on a form of judgment which is to be presented to a judge for entry. Here the parties on August 13 had an enforceable agreement which
The judge below, familiar with this case from the beginning, ruled on August 13 that the agreement was fair and reasonable, and later that the judgment was fair and reasonable, citing Dominick v. Dominick, 18 Mass. App. Ct. 85 (1984). It is worth observing that in the run of cases where a settlement, agreed to by parties represented by counsel, is offered to a judge to be embodied in a judgment, and it appears desirable that the settlement be given the force of a judgment, the judge may act without assuming responsibility for the fairness of the terms. (The judge, however, should be careful not to assume anomalous burdens of enforcement.
Judgment affirmed.
The thirteen points of the agreement dealt in the main with the disposition of the properties, adjustment of the values by stock transfers and so forth, and abandonment of litigation pending in Superior Court.
Counsel for Waldman addressed the judge as follows: “And I think it should be stated for the record that all the clients have been present in the courtroom and the corridors. They have participated in all the discussions. They are present at the reading of this stipulation. That all clients have approved the stipulation. And that so far as I know as of this moment there is no objection being raised by any party, client or counsel. And therefore, it is the intention of the parties that the stipulation just read into the record be fully enforceable against any party thereto.”
Such as superintending difficult operations over a period of time beyond the recognized limits of specific performance. The problem does not arise here. So also the judge should refuse to enter a judgment manifestly against the public interest.
Some three years after the commencement of the actions, Waldman and the interveners moved to disqualify the attorneys for Carver. The trial judge denied the motion, and a petition under G. L. c. 231, § 118, first par., was likewise denied by a single justice of this court. We agree with these prior rulings.