Opinion
No. 15–P–718.
05-26-2016
Julia B. JACOBSON v. DOMUS RE, INC., & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Julia B. Jacobson, retained the defendants, Charles R. Rolando and his architectural firm, Domus RE, Inc., to make some repairs to her home. Jacobson made advance payments totaling $55,000 but, after nearly eight months in which no work had been performed, she requested a refund. Rolando responded with a promise to provide an accounting of all labor and materials, but failed to contact Jacobson again. Jacobson then discovered that Rolando's license to practice architecture had been suspended. After sending each defendant a demand letter pursuant to G.L.c.93A, Jacobson filed a complaint in Superior Court against the defendants alleging breach of contract, fraud, and violation of G.L.c.93A. On March 4, 2014, a default judgment entered against the defendants due to their failure to respond to the complaint.
On the eve of a hearing to assess damages, the defendants filed a motion to set aside the default pursuant to Mass.R.Civ.P. 55(c), 365 Mass. 823 (1974). In their motion the defendants explained that they did not respond to the complaint because until recently they were not represented by counsel, that they were under severe financial constraints and unable to afford legal representation, that Rolando had not been properly served, and that Rolando believed that they had more time to answer the complaint. A judge authorized removal of the entry of default on the condition that the defendants “pay all of [Jacobson's] reasonable attorney's fees and costs incurred in preparing for and attending the [c]ourt's damages assessment hearing and in addressing the motion to set aside default .” The defendants responded by filing a “Certificate Of Exception To Orders And Of Election To Decline Payment Of Attorney's Fees,” in which they claimed that the judge erred in ordering them to pay attorney's fees and that they could not afford to pay the fees. The defendants failed to make any payment to Jacobson, and, by order dated July 2, 2014, the same judge denied their motion to set aside the default. A judgment entered in the amount of $147,194.08, and this appeal ensued.
The defendants argue that the judge abused his discretion by conditioning the removal of the default upon payment of Jacobson's fees and costs associated with their failure to respond to the complaint. “The removal of an entry of default under rule 55(c) is a matter ‘addressed to the sound discretion of the trial judge.’ “ Burger Chef Sys., Inc. v. Servfast of Brockton, Inc., 393 Mass. 287, 289 (1984), quoting from Silkey v. New England Tel. & Tel. Co ., 9 Mass.App.Ct. 816, 816 (1980).
We discern no abuse of discretion where, as here, the judge conditioned the removal of the default on terms that would return Jacobson to the position that she would have been in had Rolando timely filed an answer to the complaint. “[T]he judge may condition relief under rule 55(c) upon a bond, or any other reasonable terms he or she deems just under the circumstances.” Burger Chef Sys., Inc. v. Servfast of Brockton, Inc., supra at 290. The judge's order acknowledges the policy in favor of hearing the case on its merits while considering the expense incurred by Jacobson due to the defendants' failure to answer the complaint in a timely manner.
The defendants also claim that the judge violated the “American rule” by assessing attorney's fees without statutory authorization. See Wong v. Luu, 472 Mass. 208, 215 (2015) (“Massachusetts generally follows the ‘American rule’ and denies recovery of attorney's fees unless such fee-shifting is authorized by contract, statute, or court rule”). This is not a case of unfair fee shifting, however, but rather a tailored solution to restore the plaintiff to her position before the defendants forced her to incur those costs. See Commonwealth v. Carney, 458 Mass. 418 (2010) (“[S]anctions should be tailored appropriately to cure any prejudice resulting from a party's noncompliance and to ensure a fair trial”). Here, the attorney's fees were not a sanction in the sense that they were not intended to punish the defendants or to discourage them from having their case heard on the merits. See Wong v. Luu, supra at 218 (“[T]he exercise of the[ ] powers to assess attorney's fees must be limited to those cases where the imposition of such sanctions is necessary to preserve the court's authority to accomplish justice”).
Finally, there is no merit to the defendants' argument that the complaint was not properly served on Rolando. The record establishes compliance with the requirements of service of process. See Bird v. Ross, 393 Mass. 789, 791–792 (1985). Furthermore, Rolando had actual notice of the claim. See Atlas Elevator Co. v. Stasinos, 4 Mass.App.Ct. 285, 287–288 (1976).
Jacobson has requested an award of her appellate attorney's fees and double costs pursuant to G.L.c.211A, § 15, and G.L.c.231, § 6F, on the grounds that the appeal is frivolous. See Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). We agree. Pursuant to Fabre v. Walton, 441 Mass. 9, 10–11 (2004), Jacobson may file within twenty calendar days of the date of the rescript her submission detailing and supporting the attorney's fees and costs sought. The defendants may respond within twenty calendar days from the date of said filing.
Judgment affirmed.
Charles R. Rolando.