Opinion
June 26, 1990.
Present: Dolan, P.J., Hurley Kane, JJ.
Practice, Civil, Motion to removal default, Denial of; Petition to establish draft report; Dist./Mun. Cts. R. Civ. P., Rule 64(c) (4); Draft report hearing requirement.
Report of court's remand of case for hearing in accordance with Dist./Mun. R. Civ. P., Rule 64(c) (4). Action heard in the Wrentham Division by St. Cyr, J.
Bloom, Witkin Wolfe for the plaintiffs.
Peter R. Beigbeder for the defendants.
This is a petition to establish a draft report. Appellants, the defendants below, by their report allege that the trial judge was in error in denying their motion to remove a default and by awarding damages in an amount greater than that sought before the default.
The trial judge disallowed a draft report for the reasons that certain claims of error were not seasonably raised, that the report is "vague and contains several non-related matters" and that it is not conformable to the facts as presented to the court and contains extraneous and inappropriate matter. Such disallowance came five days after the filing of the draft report and occurred in the absence of a hearing to settle the report. We find error.
It would appear from the record that the challenges of the court's entry of default and refusal to remove the default were presented in a timely fashion. See Pollack v. Kelly, 372 Mass. 469, 470-71 (1971).
It cannot be gainsaid that this report, designed to serve as a neutral record, is, in passages, a brief for defendant's position. An example of this failing may be found in the first sentence of the bottom paragraph on page 3 which reads, "Due to internal staffing problems, neither these letters or the Court's notice of said Pre-Trial Conference date were brought to Attorney Wolfe's attention." Cutting or reworking sentences such as this may address this concern.
Dist./Mun. Cts. R. Civ. P., Rule 64 (c) (4) requires a hearing to be held on a draft report unless the trial judge intends to allow the draft report as submitted. A hearing, according to Rule 64 (c) (4), is to settle the report. Black's Law Dictionary II defines "settle" to mean reaching an agreement. In the context of Rule 64(c) (4), "settle" means that the appellant be given the opportunity to agree to the trial judge's proposed deletions or additions to the report. No such opportunity having been given to the appellants, we remand for the hearing required by Rule 64 (c) (4). To the extent appellants refuse to modify the report in accordance with the trial judge's proposed deletions, additions, or changes with respect to form, these specific deletions, additions, or directions should be incorporated by the trial judge in his findings and reasons for disallowance.