Opinion
21-P-910
10-07-2022
KIMBERLY DESJARDINS v. VINCENT A. BONGIORNI; IMPERIUM INSURANCE COMPANY, third-party defendant.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff in this legal malpractice action, Kimberly Desjardins, appeals from a judgment for the defendant, Vincent A. Bongiorni, entered after a hearing on her motion under Mass. R. Civ. P. Rule 55 (b), as amended, 477 Mass. 1401 (2017), for entry of default judgment. On appeal she contends that she was entitled to a jury trial on the assessment of damages, and that the judge erred as a matter of law when he required her to prove causation and damages and limited her damages attributable to the underlying claim -- a car accident -- to $5,000. We affirm.
1. Jury trial.
The judge denied the plaintiff's motions, made on the day of the damages hearing, for a continuance and a jury trial. She claimed then, as she does on appeal, that because a malpractice claim involves a "trial within a trial," she was entitled to a jury trial on the underlying tort claim. Marston v. Orlando, 95 Mass.App.Ct. 526, 532-534 (2019).
"There was no error in the judge's refusal to allow a jury to assess damages because a party's right of trial by jury on assessment of damages following a default judgment is available only 'when and as required by statute.' Mass. R. Civ. P. 55 (b) (2)[, 365 Mass. 822 (1974)]. See Mass. R. Civ. P. 39 (a) (2), 365 Mass. 801-802 (1974). . . . The former statutory right for such a hearing before a jury was abolished in 1974. See St. 1973, § 1114, § 171, and St. 1975, § 377, § 87, wherein G. L. c. 231, § 57, was repealed." Silkey v. New England Tel. & Tel. Co., 9 Mass.App.Ct. 816, 817 (1980). On appeal, the plaintiff has not cited any statute or constitutional provision that would entitle her to the relief she seeks, nor has she cited any case (in this jurisdiction or elsewhere) suggesting that Silkey, supra, was wrongly decided. In the absence of sustained appellate argument on this point, see Custody of Kali, 439 Mass. 834, 838-839 (2003), we decline to depart from established precedent.
2. Damages.
The plaintiff further contends that the judge erred when he declined to rely on proffered medical records due to the plaintiff's failure to comply with the statutes governing the admissibility of medical records, see G. L. c. 233, § 79G, and ultimately ruled that the plaintiff had failed to prove more than nominal damages causally related to the automobile accident.
The plaintiff has not separately argued the applicability of § 79G on appeal and that issue is therefore waived. See Zoning Bd. of Appeals of Lunenburg v. Housing Appeals Comm., 464 Mass. 38, 55 (2013) (arguments not made on appeal are waived)-With respect to the broader issue, the plaintiff asserts that "[h]er medical damages for her underlying personal injury action should have been accepted as a fact based upon the [s]tatement of [d]amages and [the plaintiff's] affidavit." This argument is incorrect for two reasons.
Regardless, we agree with the judge that the plaintiff's failure to give the requisite ten-day notice to the defendant rendered the medical records inadmissible. "[S]uch reports are admissible only after a pretrial notice to the opposing party, the purpose of which is to give the opposing party the opportunity to summons the physician for the purposes of cross-examination. Since no such opportunity existed here, the reports in question could not have been properly introduced absent live testimony." Grant v. Lewis/Boyle, Inc., 408 Mass. 269, 274 (1990). Contrast Knight v. Maersk Container Serv. Co., 49 Mass.App.Ct. 254, 256 (2000) ("Here, there was ample pretrial notice to plaintiffs' counsel that the defense planned to offer the . . . report in evidence"); Mass. G. Evid. § 803(6) (C) (2022) .
First, when "a defendant is defaulted, well-pleaded facts are deemed to be admitted, but a plaintiff may recover only to the extent the complaint states a claim for relief .... Thus, the plaintiff[] had the burden at trial of proving damages incurred as a result of wrongs within the scope of the claims alleged for which the law provides a remedy." Jones v. Boykan, 464 Mass. 285, 295 (2013), quoting Nancy P. v. D'Amato, 401 Mass. 516, 519 (1988). Here, the complaint alleged conduct by the lawyer that set forth the elements of a legal malpractice claim. However, the complaint did not allege facts necessary to establish liability in the underlying personal injury claim; the legal malpractice complaint did not allege that the plaintiff suffered damages caused by the negligence of the driver. As a result, these allegations were not deemed admitted, and the judge properly required the plaintiff to prove both causation and damages. Jones, supra.
Second, even when liability and/or causation is clearly alleged, and deemed admitted by virtue of a default, we have long required that the plaintiff prove the amount of damages causally related to the wrongful conduct, unless the case is one for a sum certain, such as a suit on a note. See Johnny's Oil Co., Inc. v. Eldayha, 82 Mass.App.Ct. 705, 711-712 (2012) . "[W]hen a judge awards damages after entry of default, the judge has an obligation fairly to determine that the amount of damages has a reasonable basis in fact." Jones, supra at 294. Here the judge did just that. We discern no error of law or abuse of discretion in the judge's disposition of the case.
Judgment affirmed.
The panelists are listed in order of seniority.