Ann T. Botelho v. Mary E. Buscone.

• Court: Massachusetts Appeals Court
• Decided: October 9, 2025
• Docket: 24-P-0633
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-633

ANN T. BOTELHO

vs.

MARY E. BUSCONE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On August 17, 2018, a default judgment in the amount of

$91,673.45 was entered against the defendant, Mary Buscone, in

the Superior Court. In October 2023, Buscone filed a motion

pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974),

seeking to remove the default. A judge of the Superior Court

denied the motion in a well-reasoned memorandum of decision and

order. Buscone has appealed. For the same reasons explained by

the judge, we conclude that Buscone is not entitled to relief

under rule 60 (b) and, therefore, her motion was properly

denied.

Background. We need not detail all the events which have

occurred during years of litigation. For the purposes of this appeal, it suffices to note that Buscone and the plaintiff, Ann.

T. Botelho, are former business partners. The two operated a

frozen yogurt business between 2012 and 2014. When that

relationship deteriorated, causing the business to fail, Botelho

filed for bankruptcy protection and received a Chapter 7

discharge. Then, in 2018, Botelho filed the underlying suit

against Buscone for, among other things, breach of contract,

breach of fiduciary duty, and fraud. Buscone, who was aware of

the lawsuit and had received proper notice of it, did not

appear, and a judge of the Superior Court entered a default

judgment against her. At some point in 2019, Buscone agreed to

pay $200 per month on the judgment. Buscone did not fulfill her

agreement, and ultimately filed her own bankruptcy proceedings

in the United States Bankruptcy Court for the District of

Massachusetts. Botelho filed claims in the bankruptcy court to

preserve her default judgment. The bankruptcy court ruled that

the debt associated with the Superior Court default judgment

against Buscone was exempt from discharge. After prolonged

litigation in the United States District Court for the District

of Massachusetts, that ruling was affirmed.

As previously noted, Buscone then filed a motion in the

Superior Court under rule 60 (b) claiming that the default

judgment resulted from violations of due process and abuse of

process. The denial of that motion is now before us.

2 Discussion. Buscone claims that the judge abused her

discretion in denying her relief under rule 60 (b).

Essentially, as the judge aptly observed, Buscone seeks to be

excused from her choice to pursue bankruptcy proceedings instead

of pursuing relief from the default judgment. Given the passage

of time, this choice effectively closed the door to relief in

the Superior Court. In reaching her conclusion that Buscone was

not entitled to relief, the judge thoroughly analyzed rule

60 (b) and properly determined that Buscone's claim was time

barred. The motion was filed long after the one-year time limit

applicable to rule 60 (b) (1) and was not filed within a

reasonable time as required by rule 60 (b) (4), (5) and (6).

See, e.g., Owens v. Mukendi, 448 Mass. 66, 72 (2006), quoting

Parrell v. Keenan, 389 Mass. 809, 814 (1983) (motion under rule

60 [b] [6] "must be brought within a reasonable time, and a

determination of what constitutes a reasonable time is . . .

'addressed solely to the judge's discretion'").1 Furthermore,

even if Buscone had filed a timely motion, she failed to set

forth any meritorious reasons why the default should be removed

and provided insufficient factual or legal support for her

1 Rule 60 (b) (2) and (3) are not applicable here.

3 claims. Given these circumstances, we discern no abuse of

discretion.

Order denying motion for relief from default judgment affirmed.

By the Court (Vuono, Massing & Allen, JJ.2),

Clerk

Entered: October 9, 2025.

2 The panelists are listed in order of seniority.