Opinion
No. 11–P–2089.
2013-03-20
Marilyn LABOUNTY v. Peter J. UNITT.
By the Court (CYPHER, RUBIN & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Peter J. Unitt appeals late, with leave of a single justice of this court, from a default judgment entered by the Superior Court on October 21, 2010. The entry of a default judgment is reviewed for abuse of discretion. See Clamp–All Corp. v. Foresta, 53 Mass.App.Ct. 795, 805 (2002). On the materials before us, Unitt has failed to show any abuse of discretion.
Unlike his co-defendant, Lee Unitt (Lee), Peter Unitt did not seek relief from the judgment in the trial court. On May 17, 2012, this court summarily affirmed orders denying Lee Unitt's motions for relief from judgment and for reconsideration. See LaBounty v. Unitt, 81 Mass.App.Ct. 1136 (2012). We have assumed for purposes of this appeal that the single justice did not err by allowing Unitt to file a late notice of appeal.
Unitt has failed to demonstrate that the clerk's office committed an error by refusing, on or about May 19, 2010, to docket Unitt's answer and counterclaim. Unitt's argument depends on the March 22, 2010, stipulation, approved by the court, having lifted the default regardless of whether the defendant filed his answer by the new March 29, 2010, deadline apparently described in that stipulation. The plaintiff's brief indicates that, under the stipulation, the default would be lifted only if the defendant filed his answer by March 29, 2010, which he failed to do. Unitt, by failing to put that stipulation in the record before us, has failed to provide us with any basis to conclude otherwise. Commonwealth v. Woods, 419 Mass. 366, 371 (1995). As a result of Unitt's failure to comply with the March 22, 2010, stipulation/order, Unitt remained in default at the time. The proper procedure would have been to file a renewed motion, under Mass.R.Civ.P. 55(c), 365 Mass. 822 (1974), to set aside the default. All the actions of the clerk of which Unitt complains are consistent with the plaintiff's reading of the stipulation, including the failure to enter a new default in response to the plaintiff's filing of April 8, 2010. Thus, even assuming the judge told the parties to “work it out,” and they stipulated to a new, May 14, 2010, deadline, Unitt has not met his burden to show there was an error in the clerk's office rejecting the filing on the ground that, before it could be filed, Unitt had first to seek to lift the default. When squarely presented with the default issue at the hearing on LaBounty's September 7, 2010, motion for clarification, the judge decided not to remove the default and scheduled the case for an assessment of damages hearing. No objections to this procedure were forthcoming from Unitt's attorney. At no time did Unitt's attorney or Unitt file a renewed motion to set aside the default based on the events occurring in April and May, 2010. There was no error by the clerk, nor was there any abuse of discretion or other error of law in entry of the default judgment.
The clerk's office also properly refused to docket LaBounty's answer to the counterclaim and, where Unitt was already in default, properly refused LaBounty's April 2, 2010, request to enter a default under Mass.R.Civ.P. 55(a), 365 Mass. 822 (1974). No argument is made here concerning any noncompliance with Mass.R.Civ.P. 55(b), as amended, 423 Mass. 1402 (1996) (governing the entry of default judgments).
When Unitt was originally defaulted, he was proceeding pro se. By March, 2010, Unitt had retained Attorney Wayne Murphy to represent him in this action. Shortly before judgment entered, Attorney Murphy was suspended from the practice of law. At that time, Unitt began representing himself again.
Judgment affirmed.