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22-P-1082 Appeals Court
WILLIAM FIALKOWSKI vs. DONNA BALTROMITIS.
No. 22-P-1082.
Suffolk. June 21, 2023. – September 12, 2023.
Present: Wolohojian, Singh, & Hand, JJ.
Summary Process. Uniform Summary Process Rules. Practice, Civil, Summary process, Judgment on the pleadings, Summary judgment. Constitutional Law, Full faith and credit. Res Judicata.
Summary Process. Complaint filed in the Eastern Division of the Housing Court Department on May 7, 2021.
A motion to dismiss was heard by Irene H. Bagdoian, J., and the case was heard by her on a motion for judgment on the pleadings.
David M. McGlone for the defendant. Mark W. Corner (Lauren B. Bressman also present) for the plaintiff.
WOLOHOJIAN, J. William Fialkowski (husband) and Donna
Baltromitis (wife) divorced in Alabama after entering into a
settlement agreement that, among other things, provided for the
disposition of a jointly owned marital home located in Boston 2
(property or Boston property). In summary terms, the property
was to be listed for sale, and the parties were each to receive
fifty percent of the net proceeds from the sale. The husband
was to pay the mortgage until the property was sold; the wife
was to have sole and exclusive possession until that time. The
terms of the parties' agreement were incorporated, ratified, and
confirmed in a final decree of divorce entered by the Circuit
Court of Madison County, Alabama, on May 28, 2019.
Things did not work out as planned. Accordingly,
approximately a year after the final divorce decree, on June 8,
2020,1 the husband filed a motion for emergency relief in the
Alabama court, alleging that the wife was refusing to cooperate
in listing the Boston property, that she had taken actions in
derogation of a neighbor's property rights, and that she had
caused a lis pendens to be filed against the Boston property.
The husband asked that the Alabama court "set this case for an
expedited hearing at which it addresses the sale of the
Massachusetts property, including requiring the . . . [w]ife to
vacate the property and/or make the mortgage payment thereon."
At the time the husband sought this relief, there was a
temporary moratorium on nonessential evictions and foreclosures
1 The husband had previously, on February 25, 2020, filed a petition for rule nisi, which is not included in the record before us and about which we accordingly do not have details. 3
in Massachusetts during the COVID-19 emergency (temporary
eviction moratorium). See St. 2020, c. 65.
After an evidentiary hearing during which both parties
testified, the Alabama judge allowed the husband's motion for
emergency relief on June 30, 2020, when the temporary eviction
moratorium was still in effect. The judge ordered that the wife
vacate the Boston property within fourteen days, that the
husband have the exclusive right to enter into a listing
agreement for the sale of the property with a realtor of his
choice, that the wife take all steps necessary to remove the lis
pendens, and that the husband continue to make the mortgage
payments, while leaving open whether he would receive a credit
for any of those payments at the time of sale.2
After another evidentiary hearing approximately three
months later3 -- and still during the temporary eviction
moratorium -- the judge found that the wife continued to refuse
to vacate the Boston property and found the wife in contempt.
The judge sentenced the wife to 355 days of incarceration in the
county jail and awarded the husband $7,510 in attorney's fees.
2 The issues of the wife's contempt, and an award of attorney's fees to the husband, were reserved for final hearing.
3 Neither the wife nor her counsel appeared for this evidentiary hearing, which took place on September 22, 2020. 4
A final evidentiary hearing on the husband's motions took
place on February 2, 2021,4 by which time the temporary eviction
moratorium had expired.5 The judge found that the wife had
willfully and contemptuously refused to vacate the Boston
property, thus violating the judge's June 30, 2020 order on 612
separate occasions. The judge sentenced the wife to a total of
365 days of incarceration in the county jail, ordered that the
husband be reimbursed for mortgage payments he had made from
July 1, 2020, through the date of sale and closing of the Boston
property, and awarded the husband attorney's fees. A final
order entered on March 3, 2021 (Alabama final order).6
Having succeeded in obtaining from the Alabama court the
orders and rulings we describe above, the husband then turned to
the Massachusetts Housing Court for further relief.
4 The husband and his counsel appeared at the final hearing. The wife did not appear; however, the wife's counsel was present and participated fully in the hearing. Because the wife had been ordered to appear in person for the final hearing, her failure to appear led the judge to order that a warrant issue for her arrest.
5 The temporary eviction moratorium expired on October 17, 2020. See Expiration of Moratorium on Evictions and Foreclosures, https://www.mass.gov/info-details/expiration-of- moratorium-on-evictions-and-foreclosures [https://perma.cc/5Z98- ZRXX].
6 The wife's motion to alter, amend, or vacate the Alabama final order was denied on April 5, 2021. Thereafter, the Alabama final order was affirmed by the Alabama Court of Civil Appeals on June 24, 2022. 5
Specifically, he filed a summary process action on May 7, 2021,
seeking possession of the Boston property based on the Alabama
final order. The wife did not file an answer to the complaint.
She did, however, move to dismiss the complaint on the grounds
that the notice of termination was defective and that the
Alabama orders entered during the temporary eviction moratorium
were void and, therefore, could not serve as a basis on which to
award possession to the husband. The husband opposed the motion
to dismiss and also filed a motion for judgment on the
pleadings, arguing that the Alabama final order was entitled to
full faith and credit and that the issue of possession of the
Boston property was res judicata. The wife argued that the
motion for judgment on the pleadings was premature because no
answer to the complaint was yet due, or had been filed, and the
wife's motion to dismiss was pending. The wife also argued that
disputed issues of fact precluded judgment on the pleadings.
After a hearing, in a thoughtful and comprehensive
memorandum of decision and order, the Housing Court judge denied
the wife's motion to dismiss, concluding that the notice of
termination had given her all the notice to which she was due.
The wife does not challenge this ruling on appeal. Instead,
this appeal focuses on the judge's handling of the husband's
motion for judgment on the pleadings. The judge sua sponte
converted that motion to one for summary judgment on the ground 6
that it relied on materials outside the pleadings, specifically
certified copies of the Alabama orders. The judge then gave the
Alabama final order full faith and credit and concluded that the
issue of possession in favor of the husband was res judicata.
On that basis, the judge ordered that judgment for possession
enter in favor of the husband.
On appeal, the wife argues that her due process rights were
infringed because the motion for judgment on the pleadings was
premature in that it was filed before an answer was due or
filed, and because the motion was converted to one for summary
judgment without notice to her. In addition, the wife argues
that the Alabama orders entered during the temporary eviction
moratorium were void and, as a result, were not entitled to full
faith and credit in the Housing Court.7 We affirm.
Discussion. We turn first to the wife's argument that the
husband's motion for judgment on the pleadings was premature
7 The wife raises two additional arguments on appeal that need no discussion. First, her argument that the Housing Court judgment violated art. 30 of the Massachusetts Declaration of Rights is made without legal analysis or citation and does not rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019); Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011). It was also not raised below and is accordingly waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) ("issue not raised or argued below may not be argued for the first time on appeal" [citation omitted]). Likewise, her argument that the Alabama judgment was not "final," and therefore not entitled to full faith and credit, was not raised below and is waived. 7
because it was filed before the wife's answer was filed or due.
There is no question that the motion was made before an answer
had been filed; indeed, the wife never filed an answer despite
actively litigating the case for close to a year in the Housing
Court. But it is not true that the motion was filed before an
answer was due. A summary process action is initiated by filing
a summons and complaint in the form promulgated by the chief
administrative justice of the trial court. See Rule 2 (a) of
the Uniform Summary Process Rules (1993).8 Among other items
required on the form, the plaintiff must "choose an entry day
(any Monday) prior to which [the plaintiff] can get effective
service on the defendant and return of service." Commentary to
Rule 2 of the Uniform Summary Process Rules. The entry day is
important because the timing of many subsequent events is tied
to it. For example, the answer (together with any
counterclaims) must be filed and served no later than the first
Monday after the entry day. See Rule 3 of the Uniform Summary
Process Rules (1993); Rule 5 of the Uniform Summary Process
Rules (1980). Likewise, all pretrial motions are to be filed by
that same Monday. See Rule 6 of the Uniform Summary Process
Rules (1993).
8 "The form of [s]ummary [p]rocess [s]ummons and [c]omplaint, as promulgated by the [c]hief [a]dministrative [j]ustice of the [t]rial [c]ourt, shall be the only form of summons and complaint used in summary process actions." 8
In this case, the husband filed the summons and complaint
on May 7, 2021 (which was a Friday), and the matter was entered
on the docket on May 17, 2021 (the Monday ten days forward).
See Rule 2 (d) of the Uniform Summary Process Rules. The wife's
answer was accordingly due on May 24, 2021, as were any motions
she wished to file.9 Not only did the wife not file an answer by
the deadline, she never sought or obtained leave to file an
answer late.
The wife seeks safe harbor in Mass. R. Civ. P. 12 (a) (2),
365 Mass. 754 (1974), which provides that a defendant who timely
files a motion to dismiss10 is relieved of filing an answer until
ten days after notice of the court's ruling on that motion. See
9 The husband's motion for judgment on the pleadings was filed almost three months later, long after the wife should have filed an answer or obtained leave to file one late. Instead, the wife filed only a motion to dismiss, which was itself untimely since it was filed one month after it was due under Rule 6 of the Uniform Summary Process Rules. The husband's motion for judgment on the pleadings was also filed late; in fact, four months after it should have been. It does not appear that either party obtained leave for the late filings. However, the judge accepted the motions despite their timing and considered them on their merits. Because, on appeal, no one challenges the lateness of the other side's dispositive motion, and nothing substantive turns on the delay, we rest no aspect of our decision on the timing of either motion.
10When we use the word "timely" in this sentence, we do not necessarily mean a motion filed within the twenty days required under rule 12, because a motion may be "timely" for purposes of tolling the deadline for filing an answer if the parties have agreed to an extension of time or the court allows a motion to extend time. 9
1973 Reporter's Notes to Mass. R. Civ. P. 12 ("[f]iling any
motion under [r]ule 12 'stops the clock' on the . . . responding
period"). But that port is not available in summary process
actions. See Rule 1 of the Uniform Summary Process Rules (1980)
(rules of civil procedure apply in summary process actions only
where they are not inconsistent with uniform summary process
rules). Instead, Rule 3 of the Uniform Summary Process Rules
requires that the answer be filed on the Monday following the
entry day, with no exception unless otherwise allowed by the
court. See Commentary to Rule 3 of the Uniform Summary Process
Rules ("The requirement that answers be filed and served no
later than the first Monday after the Monday entry day
establishes that day as the last day for filing and service of
the answer"). Indeed, Rule 6, second par., of the Uniform
Summary Process Rules provides that -- even if a motion to
dismiss is filed before the entry day (and, thus, before an
answer is due) -- the answer must nonetheless be filed in
accordance with rule 3, even if the motion is continued or taken
under advisement. See Commentary to Rule 6 of the Uniform
Summary Process Rules ("unless the motion is allowed or the
court otherwise orders, the regular schedule for summary process
cases [answer, trial date, etc.] w[ill] not be changed" by
filing motion to dismiss). In other words, the tolling of the
deadline for filing an answer that occurs when a motion to 10
dismiss is filed pursuant to Mass. R. Civ. P. 12 (a) (2) does
not occur when a motion to dismiss is filed pursuant to Rule 6
of the Uniform Summary Process Rules in a summary process
action.
In these circumstances, the husband's motion for judgment
on the pleadings was not prematurely filed, even though Mass. R.
Civ. P. 12 (c) states that a motion for judgment on the
pleadings is to be made "[a]fter the pleadings are closed."
"Closed" in this context does not necessarily mean when all
pleadings have been filed; the pleadings may be "closed" where,
as here, the time for filing them has passed without seeking or
obtaining leave to file late. As we have already noted, the
husband did not file his motion for judgment on the pleadings
until several months after the time for the answer had passed,
the wife did not seek leave to file her answer late, and even
now she offers no explanation for her failure to timely file the
answer.
Even if not procedurally premature, the wife argues that
the motion was substantively premature in the sense that the
judge could not properly apply the standard for deciding a
motion for judgment on the pleadings where no answer had yet
been filed, which requires that the facts be taken in the light
most favorable to the nonmoving party. In the wife's view,
since there was no answer, the judge could not know which facts 11
were to be taken in the light most favorable to her as the
nonmoving party. See Jarosz v. Palmer, 436 Mass. 526, 529-530
(2002) ("In deciding a rule 12 (c) motion, all facts pleaded by
the nonmoving party must be accepted as true"); Home Depot v.
Kardas, 81 Mass. App. Ct. 27, 28 (2011). But where a party,
like the wife here, fails to timely and properly deny the
factual allegations of a complaint, those allegations are deemed
admitted. See Mass. R. Civ. P. 8 (d), 365 Mass. 749 (1974)
("Averments in a pleading to which a responsive pleading is
required, other than those as to the amount of damage, are
admitted when not denied in the responsive pleading"). We have
not previously decided whether a judge may allow a motion for
judgment on the pleadings because the allegations of the
complaint were admitted by the failure to file an answer. And
we need not, and do not, decide that question here because, in
any event, the only three factual averments of the complaint
were undisputed. Specifically, the complaint alleged only (a)
that the wife had not vacated the premises, (b) the date of the
first notice of termination, and (c) that copies of the notice
and the Alabama final order were attached. Because these three
allegations were undisputed in any event, the fact that the
complaint had not been answered was no impediment to considering 12
the motion for judgment on the pleadings, nor did any harm flow
from doing so.11
The wife also argues that the judge erred in converting the
motion for judgment on the pleadings to one for summary judgment
without first giving notice to the parties. It is true that the
judge did not alert the parties that she intended to convert the
motion, or was even contemplating doing so. The best practice
most certainly is for the judge to give notice to the parties
before converting a rule 12 dispositive motion to a summary
judgment motion under Mass. R. Civ. P. 56, 365 Mass. 824 (1974).
Rule 56 motions normally entail examination of a factual record
whereas rule 12 motions do not, compare Mass. R. Civ. P. 12 and
Mass. R. Civ. P. 56, and therefore, the nonmoving party should
receive notice so that the nonmoving party has a meaningful
opportunity to present relevant factual materials that bear on
the motion. See Stop & Shop Cos. v. Fisher, 387 Mass. 889, 891-
893 (1983). Where a rule 12 motion is improperly converted to
one for summary judgment without notice, we may "affirm the
decision below only if 'it appear[ed] to a certainty that [the
nonmovant] [was] entitled to no relief under any state of facts
11The complaint also alleged that the notice of termination was lawful, which the wife disputed. Setting aside whether this was a purely legal conclusion rather than an allegation of fact, the wife makes no argument on appeal that the notice was defective. 13
which could be proved in support of the claim'" (citation
omitted). Id. at 893. Put otherwise, we may affirm only if the
wife "was not harmed by the absence of additional procedures,"
i.e., by the conversion without notice. Jarosz, 436 Mass. at
530.
For several reasons, that is the case here. To begin with,
the judge did not need to convert the motion in order to take
the Alabama final order into account. The Alabama final order
was attached to the complaint, and regardless, the judge could
have taken judicial notice of it without converting the motion.
See Jarosz, 436 Mass. at 530; Home Depot, 81 Mass. App. Ct. at
28. Equally important, the core issue presented by the motion
for judgment on the pleadings was a legal one, not a factual
one: namely, whether the Alabama final order was entitled to
full faith and credit and, if so, whether the issue of
possession of the Boston property was res judicata. Resolution
of this issue was one of law that did not require resort to
extrinsic facts, let alone to disputed ones. Cf. Heron v.
Heron, 428 Mass. 537, 538-542 (1998) (giving Nevada order
dividing marital property full faith and credit).
With the procedural arguments out of the way, we now turn
to the wife's argument that the Alabama final order should not
have been given full faith and credit because the earlier
Alabama orders on which it built violated the temporary eviction 14
moratorium. Whatever merit this argument might have (and we
express no opinion on it), the problem for the wife is that she
could not use the Housing Court case to mount a collateral
attack on the Alabama final order.12
"Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings of every other
State." U.S. Const. art. IV, § 1. This means that the Housing
Court judge was required to give the Alabama final order the
same finality that it would receive in Alabama. See Heron, 428
Mass. at 538-539. "Divorce decrees are not an exception to full
faith and credit," id. at 539, nor are subsequent contempt
judgments enforcing the division of marital property under such
a decree.13 See Matter of Moon, 211 B.R. 483, 486 (S.D.N.Y.
12The record on appeal does not show that the wife raised the eviction moratorium in the Alabama litigation, and this fact was confirmed by counsel for the wife during oral argument. In a postargument submission seeking to supplement the appellate record, the wife contends that she did, in fact, raise the eviction moratorium in Alabama. Accordingly, although counsel's statement at oral argument was correct regarding the state of the appellate record, it may not have been correct with respect to whether the eviction moratorium had been interposed as a defense to the Alabama contempt action. In the end, for our purposes, it matters not whether the issue was or was not raised in the Alabama court because, either way, res judicata acts as a bar "not only as to matters actually presented to sustain or defeat the right asserted in the earlier proceeding, but also as to any other available matter that might have been presented to that end." Whisman v. Alabama Power Co., 512 So. 2d 78, 81-82 (Ala. 1987).
13We expressly note that this case does not present -- nor do we hold -- that the portion of the Alabama final order 15
1997) (contempt order entered by Massachusetts Probate and
Family Court entitled to full faith and credit by bankruptcy
court). "Because we must give to the [Alabama final order] the
same finality it would receive in [Alabama], [Alabama's] rules
on res judicata govern this question." Heron, supra at 540.
In Alabama, the "elements of res judicata are (1) a prior
judgment on the merits, (2) rendered by a court of competent
jurisdiction, (3) with substantial identity of the parties, and
(4) with the same cause of action presented in both actions"
(quotation and citation omitted). Burkes vs. Franklin, Alabama
Supreme Court, No. SC-2022-0649, slip op. at 10 (Nov. 18, 2022).
"If those four elements are present, then any claim that was, or
that could have been, adjudicated in the prior action is barred
from further litigation" (citation omitted). Id. at 11.
All four elements of res judicata are met here: (1) the
Alabama final order was a judgment on the merits of the
husband's contempt complaint, and was later affirmed on appeal;
(2) the wife does not challenge (nor could she) that the Alabama
court had jurisdiction to decide whether the wife was in
contempt of the divorce decree previously entered by that same
imposing a civil contempt sentence of incarceration is, or would be, entitled to full faith and credit in Massachusetts. We deal here only with that portion of the Alabama final order pertaining to the possession and division of the Boston property. 16
court; (3) the husband and wife were the parties in both the
Alabama court litigation and the Massachusetts Housing Court
litigation; and (4) the issues of possession and occupancy of
the Boston property were presented in both actions.
Accordingly, the Housing Court judge properly gave full faith
and credit to the res judicata effect of the Alabama final order
with respect to the Boston property, just as that order would be
honored in the courts of Alabama. See Heron, 428 Mass. at 538-
539.
For these reasons, the judgment of the Housing Court is
affirmed.14
So ordered.
14 The husband's request for attorney's fees is denied.