Varard v. Cardone

2003 Mass. App. Div. 111, 2003 Mass. App. Div. LEXIS 42

This text of 2003 Mass. App. Div. 111 (Varard v. Cardone) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Varard v. Cardone, 2003 Mass. App. Div. 111, 2003 Mass. App. Div. LEXIS 42 (Mass. Ct. App. 2003).

Opinion

Rufo, J.

The plaintiff seeks relief under Dist./Mun. Cts. R. A. D. A., Rule 8C, from a decision of a trial judge denying her request for retransfer to the Superior Court Department and from a trial judge’s findings and ultimate dismissal of her complaint under Mass. R. Civ. R, Rule 37 (b) (2) (C) for failure to comply with a trial judge’s order to file responsive answers to defendant’s interrogatories.

The plaintiff initiated her action in the Superior Court Department in February, 2001 and the action was remanded to the District Court Department, Hingham Division in March, 2001. Shortly thereafter, the plaintiff brought a motion in Superior Court to revoke the remand to the District Court which was denied on March 26,2001 wherein the court noted: “(i)n cases where at least dual court jurisdiction exists, the Superior Court requires proof of likelihood of exceeding the jurisdictional amount except in equitable relief situations.” In April, 2001, the matter was retransferred to the Superior Court Department for the purpose of convening a G.L.c. 231, §60B medical tribunal. The tribunal entered a finding that the plaintiff’s offer of proof was not sufficient and the case was retransferred to the District Court Department, Hingham Division, in November, 2001 for further proceedings.

The defendant served interrogatories on the plaintiff in March, 2002 and upon receipt and review of the plaintiff’s responses, the defendant sought and obtained an order compelling discovery in accordance with the procedure outlined in Mass. R. Civ. R, Rule 37 (a) (2). The plaintiff had refused to answer interrogatories by conditioning her obligations to answer upon the defendant specifying in what legal capacity he was asking the questions. The plaintiff had alleged that due to a lack of clarify as to the identify of the interrogator, she was not able to respond to a number of defendant’s interrogatories. After a hearing, the trial judge entered an order on June 4, 2002, that “the interrogator was clearly identified and that the defendant’s motion to dismiss would be allowed unless the plaintiff filed and served responsive answers to defendant’s interrogatories by not later than July 5, 2002.” Thereafter, the plaintiff served the defendant with further responses to interrogatories and after review, the defendant filed a motion to dismiss plaintiff’s complaint for failure to comply with the court’s order of June 4,2002.

The plaintiff had previously filed a request for retransfer to the Superior Court Department which was decided simultaneously with the defendants’s motion to dismiss on July 25, 2002. After hearing, on July 25, 2002, the court entered an order denying plaintiff’s request for retransfer to the Superior Court and the trial judge issued findings that the plaintiff’s answers to interrogatories were not responsive and were in violation of the court’s June 4, 2002 order. The plaintiff’s complaint was dismissed and judgment entered for the defendant under Mass. R. [112]*112Civ. R, Rule 58. We agree with the trial court’s rulings denying plaintiff’s request for retransfer to the Superior Court Department and affirm the court’s decision to dismiss the plaintiff’s complaint under Mass. R. Civ. P., Rule 37(b) (2) (C).

A party who suffers a dismissal for failure to take a required procedural step, such as filing responsive answers to interrogatories, forfeits the right to retransfer their action to the Superior Court under G.L.c. 231, §102C.1 See H. Sandberg & Son, Inc. v. Clerk of the District Court of the Northern District, 12 Mass. App. Ct. 686 (1981). A contrary holding would encourage sloppiness and/or defiance of a party’s discovery obligation by permitting the offending party to by-pass the District Court thereby undermining the purpose of the remand-retransfer provisions of G.L.c. 231, §102C. The decided cases have uniformly considered that the words “transfer for trial” which appear in the first paragraph of §102C and the words “shall be tried” which appear in the third paragraph of that section contemplate a trial on the merits with all the normal incidents of such a trial, including either a finding for and an assessment of damages in favor of the plaintiff or a finding for the defendant. Lubell v. First Natl. Stores, Inc., 342 Mass. 161 (1961); Henry v. Mansfield Beauty Academy, Inc., 353 Mass. 507 (1968).

The remand and removal system governing the flow of cases between the District Court and the Superior Court has with some justification been described as cumbersome and elaborate. See Bender v. Automotive Specialties, Inc., 407 Mass. 31 (1990); Perlin & Connors, Handbook of Civil Procedure in the Massachusetts District Court §2.1, at 38 (3rd ed. 2003). The dual purposes of the system are to square the right conferred by art. 15 of the Massachusetts Declaration of Rights to a jury trial in civil cases — such trials are not available in the District Court except in some counties on an experimental basis and except in small claims appeals — with relieving congestion in the Superior Court. Bender v. Automotive Specialties, Inc., supra at 35. The flow of cases between those divisions of the Trial Court is governed by §§102C, 103, and 104 of G.L.c. 231. Section 102C authorizes Superior Court judges to remand to the District Court cases in which there is no reasonable likelihood that recovery will exceed $25,000. That section also enables litigants disappointed by a District Court disposition to “retransfer” to the Superior Court for a second trial, this time before a jury, provided the party so requesting has preserved that right. We conclude that a plaintiff who has suffered a dismissal of a §102C case for failure to comply with a trial judge’s order to file responsive answers to defendant’s interrogatories has no right to have her case retransferred to the Superior Court. The sanction of dismissal suffered by the plaintiff in this instance did not result in a written decision or finding from either a trial or procedure such as summary judgment available under the Massachusetts Rules of Civil Procedure. Absent a final disposition of the matter, the District Court is without authority to retransfer a remanded matter. H. Sandberg & Son, Inc. v. Clerk of the District Court of the Northern District, supra.

[113]*113We now consider the appropriateness of the dismissal of the plaintiffs complaint. The trial judge considered the situation as one arising under Rule 37(b) (2) (C),2 which authorizes a judge, when confronted by a party who fails to obey an order to provide or permit discovery, to “make such orders in regard to the failure as are just, and among others ... [a]n order striking out pleadings or parts thereof... or rendering a judgment by default against the disobedient party.” Keene v. Brigham and Women’s Hospital, Inc., 439 Mass. 223 (2003). The plaintiff, in effect, refused to answer interrogatories by conditioning her obligations to answer upon the defendant specifying in what legal capacity he was asking the questions. There is no requirement in law that he do so, and the plaintiffs conditional refusal to answer is nonetheless a refusal. The plaintiff also raises on appeal that more than thirty questions were asked without leave of court. Mass. R. Civ. R, Rule 33(a)(2). See Norfolk County Trust Company v. Vichinsky, 5 Mass. App. Ct. 768 (1977).

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2003 Mass. App. Div. 111, 2003 Mass. App. Div. LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/varard-v-cardone-massdistctapp-2003.