Gary D. Lingley v. Raymond K. Hoyland. ( 2023 )

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
22-P-401
GARY D. LINGLEY1
vs.
RAYMOND K. HOYLAND.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This action arises from a dispute between the plaintiff,
the buyer of an office building, and the defendant, the seller.
As a different panel of this court explained in Lingley v.
Hoyland, 99 Mass. App. Ct. 1022 (2020) (Lingley I), in 2018, a
Superior Court jury returned a verdict against the defendant for
misrepresenting material facts to the plaintiff and willfully or
knowingly committing deceptive acts or practices concerning the
sale of the office building. A judgment subsequently entered in
1 Individually and as trustee of the G.L. Realty Trust.
2 Technical Arts and Sciences Corporation (TASC), an entity
controlled by Hoyland, was also a defendant. After Hoyland
filed a notice of appeal identifying "Raymond K. Hoyland et al"
as the appealing parties, the plaintiff filed motions to strike
and dismiss the appeal filed on behalf of TASC, which we allow,
striking so much of the notice of appeal as relates to TASC. As
a pro se litigant, the defendant cannot represent another.
Burnham v. Justices of the Superior Court, 439 Mass. 1018, 1018
(2003).
favor of the plaintiff, individually and as trustee of the G.L.
Realty Trust, against the defendant and his entity, TASC, on
claims of intentional or reckless misrepresentation and
violating G. L. c. 93A.
The panel affirmed the judgment in Lingley I, and the
Supreme Judicial Court denied further appellate review. See 487
Mass. 1108 (2021). Thereafter, the defendant, pro se, filed an
unsuccessful motion for relief from the judgment under Mass. R.
Civ. P. 60 (b), 365 Mass. 828 (1974), seeking dismissal of the
plaintiff's claims or a new trial "based on newly-discovered
evidence of fraud on the court and clear and convincing evidence
of criminal misconduct and a pervasive pattern of prevarication
by Plaintiff's . . . attorney." Another Superior Court judge
(motion judge) denied the motion without a hearing, concluding
that it "set[] forth a long list of alleged wrongs, many of
which are accusatory assumptions based more on the Defendants'
point of view than upon evidence." The defendant appealed. We
affirm.
Discussion. "The resolution of motions for relief from
judgment 'rests in the discretion of the trial judge.'"
Atlanticare Med. Ctr. v. Division of Med. Assistance, 485 Mass.
233, 247 (2020), quoting Wojcicki v. Caragher, 447 Mass. 200,
209 (2006). "Accordingly, the 'denial of a motion under Rule 60
(b) will be set aside only on a clear showing of an abuse of
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discretion.'" Id., quoting Murphy v. Administrator of the Div.
of Personnel Admin., 377 Mass. 217, 227 (1979). "[A] judge's
discretionary decision constitutes an abuse of discretion where
we conclude the judge made a clear error of judgment in weighing
the factors relevant to the decision, such that the decision
falls outside the range of reasonable alternatives" (quotation
and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014).
Under rule 60 (b) (2), "newly discovered evidence which by
due diligence could not have been discovered in time to move for
a new trial" may provide grounds for relief from a judgment.
"Relief may be granted under rule 60 (b) (3) if there has been
fraud, misrepresentation, or other misconduct of an adverse
party." Owens v. Mukendi, 448 Mass. 66, 73 (2006).
The motion judge acted well within his discretion in
concluding that the defendant's motion and supporting affidavit
lacked clear and convincing evidence of fraud on the court. To
meet the "clear and convincing" test, the "evidence must be
sufficient to convey a 'high degree of probability' that the
contested proposition is true." Doe, Sex Offender Registry Bd.
No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 309
(2015), quoting Callahan v. Westinghouse Broadcasting Co., 372
Mass. 582, 588 n.3 (1977).
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"A 'fraud on the court' occurs where 'it can be
demonstrated, clearly and convincingly, that a party has
sentiently set in motion some unconscionable scheme
calculated to interfere with the judicial system's ability
impartially to adjudicate a matter by improperly
influencing the trier or unfairly hampering the
presentation of the opposing party's claim or defense.'"
Wojcicki, 447 Mass. at 209-210, quoting Paternity of Cheryl, 434
Mass. 23, 35 (2001). "The doctrine is limited to 'that species
of fraud which does, or attempts to, defile the court itself, or
is a fraud perpetrated by officers of the court so that the
judicial machinery can not perform in the usual manner." Id. at
210, quoting Pina v. McGill Dev. Corp., 388 Mass. 159, 165
(1983). "Courts have found fraud upon the court only where
there has been the most egregious conduct involving a corruption
of the judicial process itself. Examples are bribery of judges,
employment of counsel to 'influence' the court, bribery of the
jury, and the involvement of an attorney (an officer of the
court) in the perpetration of fraud" (citation omitted).
MacDonald v. MacDonald, 407 Mass. 196, 202 (1990).
Here, the defendant failed to demonstrate an
"unconscionable scheme" by either the plaintiff or his former
attorney. In his rule 60 (b) motion, the defendant claimed,
without evidentiary support, that the plaintiff's attorney
received stolen property, tampered with evidence, withheld
evidence from discovery, and concealed evidence from the court
and opposing counsel. As the motion judge correctly concluded,
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most of the arguments raised in the defendant's motion,
particularly those relating to stolen and forged documents, were
previously disposed of in Lingley I, slip op. at 19 n.13, and
the remaining arguments concerned matters of pretrial discovery
that were not "newly discovered." Even were we to accept that
the motion set forth newly discovered evidence that the
plaintiff's attorney made false representations to the trial
court, which we do not, "even [p]erjury does not constitute
'fraud upon the court' when there is no evidence that the
judicial process itself was corrupted" (quotation and citation
omitted). Wojcicki, 447 Mass. at 210. See Guardianship of
Ingrid, 102 Mass. App. Ct. 1, 10 (2022). There is no evidence
of such corruption here, especially given that the motion judge
was not bound to accept the defendant's affidavit, which
consisted of self-serving and conclusory statements that
conflicted with the jury verdict, the trial judge's findings,
and the evidence presented by the plaintiff in his opposition to
the motion. See Clamp-All Corp., 53 Mass. App. Ct. at 808 n.5
(support for rule 60 [b] motion must consist of facts and not
conclusory statements). In light of the foregoing, we see no
abuse of discretion in the motion judge's determination that the
defendant did not meet his challenging burden under rule 60 (b)
(3). See Guardianship of Ingrid, supra, quoting Owens, 448
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Mass. at 76 ("This high bar is an expression of 'the system's
important interest in finality'").
Order denying motion for
relief from judgment
affirmed.
By the Court (Neyman, Grant &
Hershfang, JJ.3),
Clerk
Entered: July 14, 2023.
3 The panelists are listed in order of seniority.
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