Underlying a complaint brought in the Land Court by the Quarantos against the DiCarlos, under G. L. c. 231 A, to establish title in a parcel of real estate in Natick (the “locus”), was a history of reciprocal charges between the parties of theft, breach of trust, fraud, deception, and altered documents. Their long-running dispute culminated in the filing on May 6, 1993, of an agreement for judgment which, in its entirety, said:
“Now come the parties and hereby stipulate and agree that judgment be entered on all counts in favor of the defendants, with prejudice and without costs.”
A judge of the Land Court allowed the motion for relief from judgment and made certain orders concerning funds held in escrow by counsel for the DiCarlos, who have appealed. We think relief from judgment based on understandings not contained in or referred to — even inferentially — in the agreement for judgment was improvidently granted. We then consider the April agreement of the parties and decide that the DiCarlos acted in accordance with its provisions.
1. Allowance of the motion for relief from judgment. Although not so characterized, we take the Quarantos motion for relief from judgment as having been made under paragraph (b)(6) of Mass.R.Civ.P. 60, “any other reason justifying relief from the operation of the judgment.” No other category of rule 60 would have been pertinent. See, e.g., Parrell v. Keenan,
There is no evidence suggesting that either the fact or content of a collateral agreement between the parties was called to the attention of the trial judge when the agreement for judgment was filed. Within the text of that agreement there is no reference to any external understanding incorporated in or related to the agreement. In Thibbitts v. Crowley,
If a court may not relieve parties of a consent judgment that spells out the terms of settlement, there is even less basis for relief from judgment on the basis of alleged failure to act
What the Quarantos really want is not an alteration of the judgment, but enforcement of an underlying settlement agreement which they say paved the way for the judgment. Enforcement of such a settlement agreement is more than a continuation of the action in which the judgment was entered; it has its own basis for jurisdiction. Kokkonen v. Guardian Life Ins. Co.,
For these reasons, the motion for relief from judgment was erroneously allowed, and the order purporting to modify the judgment is vacated.
2. The settlement agreement. No proper jurisdictional basis was established by the Quarantos for consideration of the extrinsic settlement agreement. The parties have argued the question and, in the interest of avoiding another round of litigation in an already protracted controversy, we state our views as to whether the DiCarlos acted in accordance with that agreement.
The settlement agreement provided Frances Quaranto with three options concerning the locus, 56 Felch Road, Natick. First, she could buy the locus for $124,000 before April 30, 1993; second, by that same date she could buy the property for $134,000, to be paid for by $34,000 cash and $100,000 by a promissory note to the DiCarlos, secured by a second mortgage; or, third, to vacate the property by April 30, 1993,
Quaranto failed to purchase the locus and did not vacate it until May 31, 1993, one month after the deadline. She requested from the DiCarlos the amount payable under option three. The DiCarlos refused on the ground that Quaranto had not exercised option three within the specified time limits, i.e., by April 30, 1993. Whether Quaranto was entitled to that approximately $15,200 was the subject of the improvident motion for relief from judgment. As the Land Court judge saw it, Quaranto’s departure from the locus one month late did not cause the DiCarlos to sustain $15,200 worth of damages. She viewed the proviso of option three as imposing a penalty and, on the strength of that conclusion, entered her order requiring the DiCarlos to pay the $15,200 to Quaranto.
The agreement of April 2, 1993, does not, however, characterize the amount which the DiCarlos are to pay should option three be exercised as damages or as liquidated damages. Fairly read, the agreement acknowledges the DiCarlos’ ownership and provides that Quaranto shall either buy the locus or leave by April 30, 1993. Should Quaranto not exercise any of the three options, the agreement provides for a $1,500 per month use and occupation charge as well as certain other reimbursements.
To induce Quaranto to depart by April 30 should she not exercise either of the purchase options, the DiCarlos extended a $15,200 carrot. Quaranto’s failure to do that which would have entitled her to seize the carrot does not mean that the carrot was turned into a stick with which the Di-Carlos beat her. See Factory Realty Corp. v. Corbin-Holmes Shoe Co.,
Order granting relief from judgment vacated.
Notes
In the course of the Thibbitts opinion the court illustrated the exceptional circumstances under which an agreement for judgment or consent judgment might be vacated.
As to what constitutes a penalty, rather than damages, see A-Z Servicenter, Inc. v. Segall,