Opinion
19-P-532
04-09-2020
PLATINUM PROTECTION SYSTEMS, LLC v. Donato J. DANDREO, Third.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiff Platinum Protection Systems, LLC (Platinum), installed a video surveillance and intrusion alarm system for the defendant's business in New Hampshire, Cheers P.R. & C. Corp. (Cheers). After making a down payment, Cheers refused to pay for the system in full. Platinum brought the underlying action against defendant Donato J. Dandreo, III, a Massachusetts resident, in his personal capacity, alleging fraud and deceit and a violation of c. 93A. After Platinum served Dandreo with the complaint, Dandreo failed to answer or timely respond within twenty days, violating Mass. R. Civ. P. 12 (a) (1), 365 Mass. 754 (1974), and was subsequently defaulted. After the entry of a default judgment, he now appeals. We affirm.
Background. We describe the procedural history of the case in further detail. After Dandreo failed to respond to Platinum's first amended complaint, Platinum moved for entry of default, which entered on the docket on May 29, 2018. On June 22, Dandreo, acting pro se, moved to set aside the default on the basis of illness. The motion was denied without prejudice because Dandreo failed to comply with the filing requirements of rule 9A of the Rules of the Superior Court (2018). On June 28, Platinum moved for a default judgment and assessment of damages. A few days before the scheduled hearing in November, Dandreo, now represented by counsel, filed another motion to remove the default because of an illness. The motion did not present any medical evidence of his illness, but included an affidavit alleging that when he was served he "became ill needing medical attention" and was "unable mentally or physically to complete and file a response" to the complaint. The motion also without basis or legal authority challenged the court's jurisdiction over the claims and asserted merely that Dandreo had "valid defenses to the Plaintiff's claims." After the hearing, the judge denied Dandreo's motion, finding that the affidavit did not establish good cause as is required under Mass. R. Civ. P. 55 (c), 365 Mass. 822 (1974). He found that Dandreo's affidavit "makes only conclusory assertions to explain his default. Vague references to medical conditions with no supporting documentation do not establish good cause." The judge also highlighted the four-month gap between the denial of Dandreo's first motion and the filing of his renewed motion. The judge found that personal jurisdiction over Dandreo was proper under G. L. c. 223A, § 2, and that subject matter jurisdiction was established via the nature of Platinum's claim. Dandreo timely appeals.
Discussion. On appeal, Dandreo argues the judge abused his discretion in finding a lack of good cause to remove the default, pointing to "newly discovered facts" regarding his illness. The denial of a motion to remove the entry of default is reviewed for an abuse of discretion. Silkey v. New England Tel. & Tel. Co., 9 Mass. App. Ct. 816, 816 (1980). In order to prevail, the movant must provide a "good" reason to remove default and the existence of a meritorious claim or defense. Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 806 (2002).
On appeal, Dandreo includes a brief note from a nurse practitioner written in January 2019 that addressed his condition in June 2018, and a number of printouts on a medical condition. Because these documents were not before the judge, we do not consider them.
Here, we ascertain no abuse of discretion. Personal jurisdiction is established by Dandreo's residency in Massachusetts and subject matter jurisdiction is established by the nature of the fraud and deceit claim. See Ray-Tek Servs., Inc. v. Parker, 64 Mass. App. Ct. 165, 177-178 (2005). Dandreo's assertions of illness were conclusory and unsubstantiated by his affidavit, and the delay in filing his second motion was significant and unexplained. See Cicchese v. Tape Time Corp., 28 Mass. App. Ct. 72, 74-75 (1989) ("In denying relief, the trial judge properly could consider ... the length of time the [defendant] waited to answer ... and to respond to the entry of default"). As Dandreo's motion and affidavit fail to support any good reason for the default's removal, the judge acted well within his discretion in denying the motion. See Burger Chef Sys., Inc. v. Servfast of Brockton, Inc., 393 Mass. 287, 289 (1984). See also New England Allbank for Sav. v. Rouleau, 28 Mass. App. Ct. 135, 144 (1989) ; Jerry Martin Co. v. Hyannis Marina, Inc., 3 Mass. App. Ct. 746, 746 (1975).
We do so without the benefit of Platinum's first amended complaint, which Dandreo failed to include in the record appendix. See Spivey v. Neitlich, 59 Mass. App. Ct. 742, 744 (2003) (burden of providing adequate record rests on appellant).
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Platinum here requests attorney's fees pursuant to Mass. R. A. P. 25, as amended, 481 Mass. 1654 (2019). Under rule 25, "[a]n appeal is frivolous [w]hen the law is well settled, when there can be no reasonable expectation of a reversal" (quotation and citation omitted). Allstate Ins. Co. v. Reynolds, 43 Mass. App. Ct. 927, 929 (1997). Here, while Dandreo toes the line of a frivolous appeal, we conclude that he has not crossed it. Platinum's request for attorney's fees is therefore denied.
Judgment affirmed.