Opinion
No. 99-1250
May 10, 2001
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR SEPARATE AND FINAL JUDGMENT
This matter is before the court on the plaintiff's motion for a separate and final judgment on Counts III (assault) and IV (sexual battery) of her civil action against this defendant. Defendant opposes the motion, arguing that he is entitled to a jury trial on the question of damages. For the following reasons, the court will afford the parties a non-jury hearing in connection with its determination of damages.
Plaintiff also alleges negligence (Count I), intentional or reckless infliction of emotional distress (Count II), false imprisonment (Count V) and bill to reach and apply (Count VI).
PROCEDURAL HISTORY
The record of prior proceedings suggests that the following chronology is an accurate recitation of the somewhat uncommon path taken by the case at bar.
March 14, 1998: Sexual assault occurs
November 4, 1998: Defendant is convicted (two counts of rape; one count of indecent assault and battery, victim over 14 years of age; and one count of assault with intent to rape). See Commonwealth v. George Benyamin, WSC No. 98-00280 CR.
June 25, 1999: Civil complaint (six counts) entered commencing the case at bar.
March 22, 2000: Judgment (liability only) entered for plaintiff due to defendant's failure to answer interrogatories.
April 5, 2000: Plaintiff filed motion to assess damages and for entry of final judgment.
April 18, 2000: After hearing, damages were assessed at $150,000; no action on request for final judgment (Toomey, J.)
April 19, 2000: Defendant filed motion to remove the March 22, 2000 default judgment (liability only).
May 17, 2000: Defendant's motion to remove the March 22, 2000 default judgment (liability only) was allowed. (Hillman, J.).
July 13, 2000: Plaintiff's motion for summary judgment upon Count III (assault) and Count IV (sexual battery) of the instant complaint was allowed (liability only) (Gants, J.).
February 21, 2001: Defendant filed demand for jury trial upon question of damages.
March 26, 2001: After hearing, separate and final judgment on Counts III and IV (liability only) entered (Toomey, J.)
The matter now before the court requires attention to (1) defendant's February 21, 2001 demand for jury trial upon the plaintiff's entitlement to damages as a consequence of the July 13, 2000 judgment (liability only) in her favor and (2) plaintiff's corresponding motion for entry of separate and final judgment in the amount of $150,000 based on the April 18, 2000 assessment of damages.
DISCUSSION
"When more than one claim for relief is presented in an action . . . the court may direct the entry of final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay." Mass. R.Civ.P. 54 (b). At bar, this court has already found that there is no just reason for delay on the issue of liability as to Counts III and IV and has, accordingly, entered final judgment of liability thereupon. See March 26, 2001 Order (Toomey, J.).
Defendant does not dispute the viability of the existing final judgment as to liability but argues that a final judgment may not enter as to damages because, when this action was filed, defendant reserved his right to a jury trial and is therefore entitled to a trial on the issue of damages. Defendant contends that, because the assessment of damages was a constituent component of the March 22, 2000 default judgment, the May 17, 2000 removal of that default judgment also eradicated the April 18, 2000 assessment of damages. Defendant's argument fails because he misapprehends the character of the referenced events.
No final judgment as to damages was entered by this court when, on April 18, 2000, it set the damages amount at $150,000. On March 22, 2000, judgment had indeed entered, but only as to liability. At that time, plaintiff was directed to file and have heard a motion for assessment of damages and for entry of Final Judgment. The plaintiff filed such a motion on April 5, 2000. On April 18, 2000, after a hearing, the court assessed damages in the amount of $150,000, but took no action on the plaintiff's request for Final Judgment. Therefore, at the time of the May 17, 2000 removal of default, the only judgment entered in this case was the March 22, 2000 default judgment as to liability. Only that limited judgment was expunged by the May 17, 2000 removal of default.
Liability was re-established, however, on July 13, 2000, when the court allowed plaintiff's motion for summary judgment, as to liability, on Counts III and IV. The present question for this court, therefore, is whether the April 18, 2000 assessment of damages may now be engrafted upon the July 13, 2000 summary judgment upon liability and may be employed in the entrance of separate and final judgment on Counts III and IV.
Mass.R.Civ.P. 55(b)(2) provides for a hearing on the question of damages after entry of a default. "If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages . . . the court may conduct such hearings . . . as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by statute." The limited nature of the damages hearing is further explicated in the Reporter's Notes to Rule 55(b)(2): "The hearing is not a trial; if the court determines that the defendant is in default, his liability is established and may not be contested. The defaulted party is, however, provided an opportunity to contest the damages; the court may hold such hearings as it deems necessary . . . In addition, a jury trial may be proper."
At bar, the court held a hearing on the question of damages in connection with the default judgment. Although defendant failed to attend the April 18, 2000 hearing for assessment of damages or request a jury trial at that time, he filed his motion to remove the March 22, 2000 default on April 19, 2000, one day after the court assessed damages in the amount of $150,000 . . . The bona fides of defendants' effort to remove the default is thus belied by its timing. This court will not require plaintiff ___ who, the court finds from its observations at the assessment hearings and other court proceedings, is tormented by court appearances that resurrect her trauma ___ to testify again in this matter. The court will, however, in an abundance of caution, permit defendant to be heard on the question of damages, albeit not in a jury trial context, the court having concluded that, in the circumstances, defendant has waived any rights he may have had to such a proceeding. SeeBoard of Assessors of Saugus v. Leo, 363 Mass. 47, 50 (1973) (party's conduct in failing to take action as required by law to claim or preserve the right to jury trial held to have waived that right); see also Foster v. Morse, 132 Mass. 354, 350 (1882) ("if a defendant in civil or criminal suit is defaulted, judgment is to be rendered against him; he is deemed to have waived his right of trial by jury").
ORDER
The parties may, within fourteen days of the date of this decision, request a hearing on the question of damages. The hearing will be scheduled at the mutual convenience of the court and of the parties. At said hearing, this court will take into account the evidence adduced at the April 18, 2000 hearing at which damages were originally assessed, together with any other evidence offered by the parties. Should no such hearing be timely requested, the court will enter final judgment consistent with the existing record.
___________________________________ Daniel F. Toomey Justice of the Superior Court