
    J. Dennis Coady vs. Daniel Stack
    
    Northern District
    October 25, 1995.
    Present: Sherman, P.J., Greco & Furnari, JJ.
    Elizabeth A. DiRusso for the plaintiff.
    John F. Del Prete, Jr. for the defendant.
    
      
      Individually and doing business as Exceptional Auto Body.
    
   Sherman, P.J.

This is a Dist./Mun. Cts. RAD. A, Rule 8B appeal by the defendant of (1) the denial of his motion to vacate a default and file his answer late, and (2) the court’s entry of a default judgment in the amount of $20,622.00 without a hearing for the assessment of damages.

The parties’ Rule 8B agreed statement and the docket entries disclose that the plaintiff commenced this action on May 18, 1994 to recover for the defendant’s alleged breach of contract and G.L.c. 93A unfair and deceptive practices in inadequately repairing the defendant’s motor vehicle and in overbilling for services actually rendered. The plaintiff’s complaint sought damages in the amount of $5,000.00, plus punitive damages and attorneys’ fees.

The defendant was served on June 29, 1994, but failed to file an answer within the required time. The plaintiff thereafter filed requests for a default judgment on August 1,1994 and August 30,1994, and marked the latter request for a September 7,1994 hearing. The defendant failed to appear on the scheduled date.

On September 12,1994, the plaintiff filed a request for a default with a supporting affidavit. At the September 21, 1994 hearing, attended by both parties, the court advised the pro-se defendant of the seriousness of the case against him, and recommended that he retain legal counsel. Upon the defendant’s statement that he wished to hire an attorney to contest the plaintiff’s claims, the court granted the defendant ten days to answer, ordering that a default would be entered if the defendant did not file an answer by September 30,1994.

The defendant did not do so. On October 24,1994, a default was entered pursuant to Dist./Mun. Cts. R. Civ. P., Rule 55(a) and notice was issued. Upon receipt of notice, the defendant attempted to file an “answer” which he identified, in a cover letter to the court, as the “answer” he had “filed” with plaintiff’s counsel before September 30, 1994. The defendant stated that “he did not realize that the answer had to be filed with the court.” On October 28, 1994, the trial court clerk returned the answer with instructions to the defendant to either refile the answer with a motion to remove the default assented to by plaintiff’s counsel, or file and schedule a motion to remove the default. The defendant claims that he thereafter unsuccessfully attempted to contact plaintiff’s counsel on at least six occasions. Plaintiff’s counsel denied receiving any communication from the defendant other than the mailed “answer,” which counsel did not recall receiving by September 30, 1994. The defendant did not file a motion to vacate the default.

No further action was taken until February 10, 1995, when the plaintiff filed a motion for an assessment of damages and affidavit, and scheduled a hearing for February 22, 1995. The pro se defendant finally retained counsel upon receipt of notice of the plaintiff’s motion. On the day before the scheduled hearing, defendant’s counsel filed motions to remove the default and answer late, and to file an amended answer and counterclaims. In support of the same, an affidavit of one Sheahan, an employee of the defendant’s, was submitted which stated that Shea-han had mailed the defendant’s answer to plaintiff’s counsel before September 30, 1994, and that she had left six messages for plaintiff’s counsel between October 24 and December 11,1994, and had never received a return call.

At the February 22, 1995 hearing, defendant’s counsel informed the court that he had spoken to plaintiff’s counsel, who had no objection to the defendant’s motions and would not be appearing in opposition. Counsel also submitted the Sheahan affidavit and explained to the court the earlier misunderstanding on the part of the then pro se defendant about the need to have filed his answer with the court by September 30,1994. The court orally denied the defendant’s motions.

Subsequent to said denial and the termination of the hearing, and with neither party appearing, the court allowed plaintiff’s motion for an assessment of triple damages, and ordered the entry of a default judgment in the amount of $20,622.00.

1. It is elementary that the decision to remove a default rests within the sound discretion of the motion judge. Riley v. Davison Construe. Co., 381 Mass. 432, 441 (1980); Silkey v. New England Tel. & Tel. Co., 9 Mass. App. Ct. 816 (1980); The Jerry Martin Co. v. Hyannis Marina, Inc., 3 Mass. App. Ct. 746 (1975). A.Dist./Mun. Cts. R. Civ. P., Rule 55 (c) request for such discretionary relief must be based on a showing of “good cause,” and should demonstrate, preferably by affidavit, that the defendant has acted promptly to vacate the default and to file his answer, and that the defendant has a meritorious defense to the plaintiff’s claims. Cicchese v. Tape Time Corp., 28 Mass. App. Ct. 72, 74-75 (1989).

The defendant’s Rule 55(c) motion falls well short of satisfying such criteria. The defendant’s mere mistaken belief that he had filed an answer by mailing a copy of the same to plaintiff’s counsel did not constitute “good cause” for the removal of the default herein. See Bissanti Design Build Group v. McClay, 32 Mass. App. Ct. 469, 470 (1992). The defendant’s Rule 55(c) motion is indeed predicated on little more than the defendant’s contention that his unfamiliarity, as a pro se party, with procedural requirements justified his failure to respond effectively to the plaintiff’s complaint. It is well established, however, that a party’s pro se status does not “excuse him from compliance with relevant rules of substantive and procedural law.” Pandey v. Roulston, 419 Mass. 1010, 1011 (1995). See also Brossard v. West Roxbury Division, 417 Mass. 183, 184 (1994); International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 847 (1983). Moreover, the defendant’s assertion of a lack of procedural information is at best unpersuasive given the specific guidance and advice provided by the court on several occasions.

Second, the record establishes not only that the defendant did not act promptly, but that his responses to this action were nothing short of dilatory. Despite the July 20, 1994 expiration of the original time for filing his answer, several Rule 55 requests by the plaintiff and notice of a September 7, 1994 hearing, the defendant took no action until September 21, 1994, when he appeared in court without an answer and without legal counsel. After the court’s granting of a ten day grace period for answering in response to the defendant’s statements of his intention to retain counsel and contest the plaintiff’s claims, the defendant still failed to comply with the court’s express order to file an answer by September 30,1994. The defendant’s noncompliance with this specific court order properly resulted in the entry of the October 24, 1994 default against him, see Friedman v. Globe Newspaper Co., 38 Mass. App. Ct. 923, 924 (1995); Gos v. Brownstein, 403 Mass. 252, 255-256 (1988), and warranted the denial of Rule 55(c) relief which the defendant delayed requesting for an additional four months. The defendant cannot now seriously claim, after his disregard of the court’s September 21, 1994 order, that the court’s refusal to extend a second opportunity to him five months later to file a late answer amounted to an abuse of discretion. While defaults are disfavored and the entry of judgment after a full trial on the merits is generally preferred, such judicial policy did not entitle the defendant to ignore court orders and procedural requirements with impunity or to expect that his disregard of the plaintiff’s action would be free of consequences. See Buffum v. Rockport, 36 Mass. App. Ct. 377, 381 (1994); Cicchese v. Tape Time Corp., supra at 74; Kenney v. Rust, supra at 703.

Finally, we agree with the dissent that the defendant’s proposed answer and counterclaims present arguably meritorious issues which include release, accord and satisfaction and contract modification. The allegation of such defenses, and a conclusion that the plaintiff’s claims required testing at a trial on the merits, may well have prompted the motion judge, in an exercise of his broad discretion, to allow the defendant’s Rule 55(c) motion. Conversely, the court could have properly concluded, as it apparently did, that the defendant’s continuing failure to take seriously his responsibilities for responding to this litigation justified the denial of the defendant’s belated Rule 55(c) attempt to marshal defenses to the plaintiff’s claims. See Partlow v. The Hertz Corp., 370 Mass. 787, 790-791 (1976). Thus any doubts as to the severity of the court’s denial of the defendant’s motions are insufficient to compel the conclusion that the judge’s ruling constituted an abuse of discretion. See M. Clifton Edson & Son v. McConnell, 9 Mass. App. Ct. 930 (1980). The standard for appellate review of an exercise of judicial discretion is not substituted judgment. Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986); Bird v. Ross, 393 Mass. 789, 791 (1985); Nabhan v. Board of Selectmen of Salisbury, 12 Mass. App. Ct. 264, 271-272 (1981).

2. The propriety of the court’s denial of the defendant’s Rule 55(c) motion to remove the default did not, however, authorize the court to enter a $20,622.00 default judgment without affording the defendant an opportunity to be heard at an assessment hearing. While a default establishes a defendant’s liability, it does not constitute an admission by the defendant of either mere conclusions of law, or the theory or amount of damages, set forth in the complaint. Productora e Importadora De Papel S.A. de C.V. v. Fleming, 376 Mass. 826, 834-835 (1978); Bissanti Design Build Group v. McClay, supra at 471. In the absence of an account annexed or a claim for a liquidated sum, a plaintiff remains obligated even after a default to prove the extent and amount of his damages by competent evidence. National Grange Mut. Ins. Co. v. Walsh, supra at 157-158.

The parties have failed to attach to their Rule 8B agreed statement copies of the plaintiff’s complaint, motion for assessment of damages and affidavit. Even in the absence of these materials, however, it is obvious that the plaintiff’s breach of contract and G.L.c. 93A claims for inadequate repairs and excessive charges were not for a “sum certain.” Further, the defenses and counterclaims set forth in the defendant’s proposed amended answer were sufficient to raise factual issues as to the amount of actual damages to which the plaintiff was entitled, and thus to indicate the need for an evidentiary hearing. See Kansky v. Harrison, 398 Mass. 1007, 1007-1008 (1986); M. Clifton Edson & Son v. McConnell, supra at 930. Finally, the conversion of the plaintiff’s $5,000.00 claim into a $20,000.00 recovery was unquestionably a function of the court’s assessment of G.L.c. 93A multiple damages. Punitive damages cannot, however, be properly assessed without an evidentiary hearing. Bissanti Design Build Group v. McClay, supra at 471, citing Flaks v. Koegel, 504 F.2d 702, 707 (2d. Cir. 1974). In short, the court’s entry in this case of a $20,622.00 default judgment without a prior hearing for the assessment of damages constituted reversible error.

Accordingly, the court’s judgment for the plaintiff is hereby vacated, and this case is returned to the Framingham Division for an assessment hearing. Judgment in the amount of the damages so assessed is then to be entered for the plaintiff. So ordered.

Furnari, J.

(Concurring in part and Dissenting in part) I agree that the trial judge’s failure to conduct a full evidentiary hearing on the plaintiffs motion for an assessment of triple damages constituted clear and prejudicial error, and I join in the order vacating the default judgment and returning this case to the trial court for further proceedings. I respectfully dissent, however, from the majority’s decision to restrict such proceedings to a hearing for the assessment of damages, for the record in this case compels the conclusion that the motion judge abused his discretion in precluding a trial on the merits by denying the defendant's motion to vacate the default and file his answer late.

For the past twenty years, the courts of this Commonwealth have utilized civil and appellate rules which were expressly promulgated to simplify procedure to insure not only the expeditious, but also the just, determination of every action. Pentucket Manor Chronic Hospital, Inc. v. Rate Setting Commission, 394 Mass. 233, 237 (1985); Guardianship of Bassett, 7 Mass. App. Ct. 56, 66 (1979). In furtherance of that goal, the rules are liberally construed, and the former rigid emphasis on technicality has appropriately and properly yielded to a pragmatic judicial insistence upon substance over form, and justice over procedural refinement.

The broad discretion accorded to trial judges to relieve a party from unreasonable consequences of procedural non-compliance can be properly exercised only in conformity with the spirit and intent of the rules, and the established judicial policies underlying the same. The latter includes the “strong judicial preference for seeing serious and substantial cases dealt with on the merits with representation of all parties by counsel, rather than by default.” Scannell v. Ed. Ferreirinha & Irmao LDA, 23 Mass. App. Ct. 465, 470 (1987). Thus while judicial discretion under the rules is broad, it is not unlimited. Appropriate appellate review of the exercise of such discretion must encompass an objective consideration of arguments that the judicial action in question involved the misapplication of governing standards, or was “unduly stern,” see Greenleaf v. Massachusetts Bay Transp. Auth., 22 Mass. App. Ct. 426, 430 (1986), or so “heavy-handed,” see Friedman v. Globe Newspaper Co., 38 Mass. App. Ct. 923, 925 (1995), that, in the light of all relevant circumstances, it constituted an abuse of discretion.

At issue herein is a judicial response to a pro se defendant’s failure to file an answer within the required time. Consistent with the “relentlessly functional approach” of the rules, Finkel v. Natale Rota, Inc., 19 Mass. App. Ct. 55, 58 (1984), is the recognition that the singular purpose of an answer is to provide the plaintiff with notice of defenses. The defendant’s service of an answer on plaintiff’s counsel herein within the time ordered by the court afforded the plaintiff adequate pre-trial notice of the defendant’s claims and counterclaims. The defendant’s mistake in failing to file the same answer with the court did not deprive the plaintiff of any of the benefits he was entitled to derive from a responsive pleading. The plaintiff in fact presented no opposition to the defendant’s request to remove the default. That the plaintiff was in no way prejudiced by the defendant’s procedural error and did not even object to the defendant’s effort to correct the same were factors militating against the denial of the defendant’s Rule 55(c) motion. See generally, Dewing v. J. B. Driscoll Agency, 30 Mass. App. Ct. 467, 470 (1991).

Nor could the motion judge have properly denied relief to the defendant merely because of the passage of time herein. The delay in question between default entry and the defendant’s Rule 55(c) motion was four months, and the defendant made good faith, albeit unsuccessful, efforts to comply with the court’s directives during this period. See Bob Berman Assoc., Inc. v. Gross, 15 Mass. App. Ct. 1000, 1001 (1983). Neither this time period per se, nor the record in general, in fact support a characterization of the defendant as recalcitrant, obdurate, dilatory or intentionally non-compliant. Compare Friedman v. Globe Newspaper Co., supra at 924.

Finally, and most significantly, the defendant’s proposed answer and amended answer advanced meritorious defenses and counterclaims in opposition to the plaintiffs action which strongly indicate that a default and resulting judgment will “operate with harshness totally disproportionate” to the defendant’s procedural errors. Feeney v. Abdelahad, 6 Mass. App. Ct. 849, 850 (1978). The defendant alleges that the plaintiff misrepresented by $7,000.00 the value of two vehicles traded to the defendant as partial payment for the repair work, further failed to pay $3,000.00 for additional work performed at the plaintiff’s request, and executed a written release of all claims against the defendant. The palpable doubt cast by the defendant’s proposed defenses on both the merits of the plaintiff’s claim and the amount of actual and punitive damages sought should have alerted the motion judge to the need for a trial on the merits herein in the interests of justice.

On the basis of the foregoing, I would rule that the judge’s denial of the defendant’s Rule 55(c) motion was an abuse of discretion and I dissent, therefore, from the majority’s decision affirming the same. 
      
      There is, of course, a critical distinction between a default and a default judgment. National Grange Mut. Ins. Co. v. Walsh, 27 Mass. App. Ct. 155, 156 n.2 (1989); Kenney v. Rust, 17 Mass. App. Ct. 699, 702 n.5 (1984). As no default judgment had been entered in this case prior to the filing of the defendant’s February 21, 1995 motion, such motion was subject to the “good cause” standard of Rule 55(c), rather than the more stringent “excusable neglect” requirements of Rule 60 (b). MVP, Inc. v. Department of Revenue, 26 Mass. App. Ct. 932, 932-933 (1988).
     