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-570

KIM KAPLAN

vs.

JOANNE THOMAS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23

Following a summary process bench trial in the Housing 

Court, judgment entered awarding possession of the apartment the 

defendant (tenant) lived in to the plaintiff (landlord).1 The 

tenant filed a notice of appeal, followed by a motion labeled as 

one "for relief from judgment [under] [Mass. R. Civ. P.] 60 

(b)," 365 Mass. 828 (1974), and "Motion to vacate" (motion for 

relief from judgment). A judge dismissed the tenant's direct 

appeal as untimely and denied her motion for relief from 

judgment. On appeal, the tenant's primary argument is that the 

judge wrongly denied her motions to continue and for relief from 

1 On the second day of trial, the judge denied the tenant's 

motion to continue.
2

judgment where she was forced to trial without counsel and 

without the evidence needed to support her position.

We review a motion for relief from judgment for abuse of 

discretion. See Fort Point Invs., LLC v. Kirunge-Smith, 103 

Mass. App. Ct. 758, 763 (2024). Here, the tenant's March 30, 

2022 motion for relief from the February 8, 2022 judgment 

indicated that it was pursuant to Mass. R. Civ. P. 60 (b), and 

the reason given was "Motion to Vacate (see attachments)." 

According to the motion judge, who was also the trial judge, the 

attachments consisted of "text messages, tenancy agreements and 

letters." After review, the judge determined that these 

documents were all available to the tenant at the time of trial 

but that she had failed to bring them to court.2 The failure to 

present at trial available evidence, or evidence that could have 

been obtained by reasonable diligence, is not a ground to vacate 

a judgment. See Cahaly v. Benistar Prop. Exch. Trust Co., 451 

Mass. 343, 361, 366-368 (2008); Poskus v. Lombardo's of 

2 The judge noted that one document was dated

postjudgment -- a letter from the inspectional services

department of the city of Worcester, indicating that an 

inspection had been done on February 23, 2022 (one day after the 

tenant's late-filed notice of appeal) and listing violations of 

the State sanitary code. The judge commented that the tenant 

could have easily obtained such a document earlier by calling 

the board of health.
3

Randolph, Inc., 48 Mass. App. Ct. 527, 528 (2000), and cases 

cited.

On appeal, the tenant acknowledges that the evidence she 

presented in support of her motion for relief from judgment 

existed prior to trial. She contends, however, that she was 

unable to present it because she had given the evidence to her 

trial attorney, and was relying on her trial attorney to present 

it at trial. She explains that, on the scheduled trial date of 

December 30, 2021, her trial attorney urged her to enter into a 

settlement and indicated that he would not represent her at 

trial. Nevertheless, the transcript of the December 30, 2021 

trial reflects that the tenant's attorney told the judge that he 

was ready to go forward with trial. Trial in fact began but was 

suspended when it was discovered that there was another occupant 

of the premises who may not have received proper notice of the 

eviction proceedings.

Trial counsel did file a motion to withdraw just before the 

next trial date of February 3, 2022. On that date, the tenant's 

counsel explained that the tenant had requested him to withdraw. 

The judge asked the tenant whether she wanted him to withdraw. 

Although the tenant sought to clarify that it was the attorney 

who initially indicated that he would not represent her at 

trial, she agreed that she also wanted him to withdraw at that
4

point. The tenant requested a continuance to get new counsel. 

Based on the tenant's representation that her counsel wanted to 

withdraw from the case as of the last trial date, the judge 

determined that she had had sufficient time to obtain successor 

counsel. When the judge asked the tenant to proceed with her 

defense, the landlord's prima facie case having been established 

on the first trial date, the tenant stated that she did not have 

any of her evidence. The judge proceeded with the tenant's 

testimony, asking about her defenses and counterclaims. 

Ultimately, the judge ruled in favor of the landlord on his 

claim for possession and against the tenant on her 

counterclaims.

Although the propriety of the judge requiring the tenant to 

go forward to trial without counsel and without her documentary 

evidence was not squarely before the trial judge when he 

considered the tenant's motion for relief from judgment, the 

tenant raises that issue on appeal. To the extent the issue is 

preserved, we discern no abuse of discretion. See Care and 

Protection of Quinn, 54 Mass. App. Ct. 117, 120 (2002) (whether 

to grant continuance of trial is matter within sound discretion 

of trial judge and will not be reversed absent showing of 

abuse). The tenant had indicated that she knew of issues 

between herself and her attorney as of the first trial date and 
5

that she had pursued multiple avenues to obtain successor 

counsel. A month later, she had no prospects for another 

attorney. The judge could well have determined that a further 

continuance was unlikely to yield better results. Likewise, the 

tenant appeared on the second day of trial aware that her trial 

counsel was likely to withdraw. The judge could well have 

determined that she should have been prepared to go to trial.

Indeed, the judge found that the plaintiff's motion for a 

continuance on the second day of trial, after she had requested 

and had been denied a continuance on the first day of trial, was 

an attempt to delay the trial without good cause. See Mass. R. 

Civ. P. 40 (b), 365 Mass. 802 (1974) ("Continuances shall be 

granted only for good cause"). Given the history of the case, 

including that it had been pending for approximately eight 

months and involved a no-fault eviction upon thirty days' notice 

to quit, we discern no abuse of discretion in the judge's denial 

of the tenant's motion to continue the trial. See Morse v. 

Ortiz-Vazquez, 99 Mass. App. Ct. 474, 480 (2021) (summary 

process rules must be interpreted and applied to "secure the 
6

just, speedy, and inexpensive" resolution of the case [citation 

omitted]).3

Order denying motion to 

continue affirmed.

Order dated April 1, 2022, 

dismissing defendant's appeal 

and denying motion for relief 

from judgment, affirmed.

By the Court (Desmond, Shin & 

Singh, JJ.4),

Clerk

Entered: June 25, 2024.

3 The tenant mentions in her brief that the trial court's 

notice of judgment went to her attorney, even though he had 

withdrawn from the case, and that this caused her original

notice of appeal from the judgment to be untimely. Yet, the 

tenant acknowledges that her attorney forwarded to her the 

notice of judgment so that she received it with four days 

remaining to file a timely notice of appeal.

The tenant also mentions in her brief that "[t]his appeal 

is based on the court's decision on the hearing that the 

[tenant] missed on April 19, 2022," and argues that she received 

late notice of that hearing. However, the tenant filed a 

February 22, 2022 notice of appeal from the February 8 judgment, 

which was untimely, and an April 11, 2022 notice of appeal from 

the judge's April 1, 2022 order (dismissing the original notice 

of appeal and denying her motion for relief from judgment), 

which was timely. That is the basis of this appeal. The April 

19, 2022 hearing related to an April 11, 2022 motion for relief 

from judgment, which was denied on April 19, 2022. No appeal 

was taken from that ruling.

4 The panelists are listed in order of seniority.