Opinion
20-P-168
06-11-2021
Miriam SAYEGH v. Stanley D. HELINSKI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Stanley D. Helinski, appeals from the entry of default judgment. He contends that the judge abused his discretion in (1) denying his motion to dismiss for insufficient service of process, (2) assessing sanctions for failing to appear at a scheduled damages assessment hearing, (3) ordering the entry of default, and (4) holding an assessment of damages hearing and ordering entry of default judgment against him. We affirm.
Background. In a comprehensive and thoughtful decision, the judge set forth in full the complicated and unfortunate factual and procedural history of this case. The plaintiff filed a complaint in the Superior Court in December 2017 alleging that the defendant committed legal malpractice in his handling of her medical malpractice claim. The defendant failed to timely answer the complaint or move to dismiss, and the plaintiff filed a motion for entry of default pursuant to Mass. R. Civ. P. 55 (a), 365 Mass. 822 (1974), which was denied without prejudice for failure to comply with Superior Court Rule 9A. The defendant filed a motion to dismiss the complaint on March 29, 2018. The plaintiff then refiled her motion for default. The first motion judge (first judge) held a single hearing on the defendant's motion to dismiss and the plaintiff's motion for entry of default. The defendant's motion was denied. With regard to the plaintiff's motion for entry of default, the judge ordered the defendant to file an answer to the complaint by a specific date or face default.
Once again, the defendant failed to timely answer the complaint, and a default entered against him on July 2, 2018. The plaintiff filed a motion for entry of a default judgment pursuant to Mass. R. Civ. P. 55 (b) (2) twice, first on July 12, 2018 and then on August 9, 2018. A hearing on the assessment of damages was scheduled for September 26, 2018. The defendant failed to appear. The morning of the hearing the defendant faxed the trial court an affidavit stating he could not attend because he was scheduled to appear at trial in Bristol County.
The first motion was denied for failure to comply with Superior Court Rule 9A. The plaintiff refiled a motion that complied with the rule on August 9, 2018.
A second motion judge (second judge) declined to issue a default judgment because the plaintiff failed to provide evidence of her damages and, in view of the amount of damages sought, the judge "would give defendant one more chance to appear." The second judge's order stated that he would permit the defendant to file a motion to remove the default. The plaintiff filed a motion seeking sanctions for the defendant's failure to appear at the September 26, 2018 hearing, which the judge allowed. The defendant's motion to remove the default was allowed on November 8, 2018 based on the judge's "belief that cases should be resolved on the merits wherever possible," with the caveat that the defendant was to pay the sanctions and comply with discovery.
On March 5, 2019 the plaintiff filed a "Motion for Entry of Default and Default Judgment," citing as grounds the defendant's lack of compliance with discovery orders and his failure to pay the $4,065.09 ordered as a sanction for the failure to appear at the September 26, 2018 hearing. The motion was allowed and a hearing on the assessment of damages was scheduled. Both parties appeared. The second judge awarded the plaintiff damages in the amount of $750,000, plus prejudgment interest. This appeal followed.
Discussion. 1. Service of process. The defendant contends that the first judge erred in denying his motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (5), 365 Mass. 754 (1974), for insufficient service of process.
The defendant was initially served at his place of business on January 10, 2018 by delivery of the summons and complaint to an attorney who accepted service at the defendant's place of business. It is unclear whether the plaintiff sought to serve the defendant pursuant to Mass. R. Civ. P. 4 (d) (1) or (2), as amended, 370 Mass. 918 (1976), but "[t]he plaintiff's submission of the return of service establishes prima facie evidence that service was validly made." Dumas v. Tenacity Constr., Inc., 95 Mass. App. Ct. 111, 115 (2019). See Mass. R. Civ. P. 4 (d). "The defendant can rebut the prima facie evidence with sufficiently detailed affidavits." Dumas, supra. Although the defendant claimed that the attorney was not authorized to accept service on his behalf, the motion to dismiss was not accompanied by an affidavit, and the defendant failed to appear at the motion hearing. However, after the defendant filed his motion to dismiss, the plaintiff served the defendant, in hand, on May 18, 2018, which is also evidenced by a return of service. The judge properly found that the in-hand service was sufficient. See Mass. R. Civ. P. 4 (d) (1) ; Christian Book Distribs., Inc. v. Wallace, 53 Mass. App. Ct. 905, 905-906 (2001) (sworn affidavit from process server that service was made on defendant was adequate to perfect court's exercise of jurisdiction).
Furthermore, it is uncontested that the defendant did, in fact, receive the summons and complaint on January 14, 2018. The defendant simultaneously filed a motion to dismiss for failure to state a claim, thus consenting to the jurisdiction of the court. By filing this pleading he arguably waived his claim of insufficient service of process. See Buckley v. John, 314 Mass. 719, 722 (1943) ; Petition of Dep't of Pub. Welfare to Dispense with Consent to Adoption, 8 Mass. App. Ct. 872, 872 (1979).
2. Sanctions. The defendant contends that the second judge abused his discretion in ordering sanctions for the defendant's failure to appear at the first assessment of damages hearing. "We review the judge's imposition of sanctions under the court's inherent powers for abuse of discretion." Wong v. Luu, 472 Mass. 208, 220 (2015), citing Chambers v. NASCO, Inc., 501 U.S. 32, 55 (1991). "Among a judge's inherent powers is the authority to make the court's lawful orders effective. Exercising this power, a judge may impose reasonable court costs on an attorney who, by failing to obtain a timely continuance, delays the adjudication of legitimate claims and defenses, unnecessarily increases clients’ litigation expenses, and squanders limited judicial resources." Beit v. Probate & Family Court Dep't, 385 Mass. 854, 859-860 (1982).
As we have noted, a default entered against the defendant on July 2, 2018 for failing to timely answer the complaint after the denial of his motion to dismiss on June 11, 2018. The plaintiff then filed her motion for entry of default judgment pursuant to Mass. R. Civ. P. 55 (b) (2). The defendant did not appear at the hearing scheduled on September 26, 2018 nor did he timely seek a continuance. Instead, the defendant sent a fax to the court on the morning of the hearing stating he was scheduled to appear as counsel at a trial for which the trial date had been set weeks before.
See Mass. R. Civ. P. 12 (a) (2) (responsive pleading to be filed within ten days of denial of motion to dismiss).
In light of the second judge's findings, all supported by the record, he permissibly ordered the defendant to pay $4,065.09 in legal fees associated with plaintiff counsel's preparation for the hearing on assessment of damages and to remove the default, and the plaintiff's travel expenses. The judge demonstrated considerable restraint in allowing the defendant's motion to remove the default and providing the defendant a final opportunity to comply with court orders related to the case. The judge did not abuse his discretion in ordering sanctions against the defendant. See Beit, 385 Mass. at 861.
The plaintiff, who has limited mobility due to her leg injury, traveled from Connecticut to Boston to attend the hearing. The defendant failed to oppose the plaintiff's motion for sanctions in writing but argued in opposition at the hearing held on November 8, 2018.
The defendant petitioned the Supreme Judicial Court for relief from the order of sanctions. His petition was denied on March 12, 2019.
3. Entry of default. The defendant contends that the second judge abused his discretion in entering default judgment, see Mass. R. Civ. P. 55 (a), because there were extenuating personal circumstances that made it difficult for the defendant to meet court-imposed deadlines throughout the first year of the case. "Entry ... of default judgments has to do with the management of the case and, as such, is committed to the sound discretion of the trial judge." Greenleaf v. Massachusetts Bay Transp. Auth., 22 Mass. App. Ct. 426, 429 (1986). See Eagle Fund Ltd. v. Sarkans, 63 Mass. App. Ct. 79, 85 (2005). We review the decision to enter default judgment to determine whether "the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The circumstances to which the defendant refers took place during the period leading up to the first default, which was vacated. After allowing the defendant's motion to remove the first default, the second judge ordered the defendant to pay sanctions by February 8, 2019, comply with plaintiff's discovery requests, and agree with plaintiff's counsel on a date in January 2019 for his deposition. The judge warned the defendant that any failure to comply with these orders could result in entry of default. The defendant failed to pay the ordered sanctions, even though the judge granted his request for ninety days in which to do so. The defendant also failed to appear at his deposition. On March 27, 2019 the plaintiff once more sought entry of default for failure to comply with discovery and pay the ordered sanctions, and the motion was allowed.
Plaintiff's counsel agreed to move the deposition to February 4, 2019 because of delay in the production of documents, but the defendant then stated he would be unable to appear on that date. In an exchange of emails in which the defendant gave various excuses for his inability to attend a deposition on either January 31 or February 4, the parties finally agreed to hold the deposition on February 4, 2019. The morning of the deposition the defendant informed the plaintiff's counsel that he would be unable to attend because he had lost his wallet while skiing.
"The consideration to be balanced in deciding a default question for failure to make discovery are, on one hand, a concern about giving parties their day in court, and, on the other, not so blunting the rules that they may be ignored ‘with impunity’ " (citation omitted). Eagle Fund Ltd., 63 Mass. App. Ct. at 85. The defendant's failure to comply with court-ordered discovery deadlines was only the latest in a series of actions in disregard of the court's orders. See Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 805-806 (2002). Where the second judge had already extended the defendant considerable latitude by removing the first default, he did not abuse his discretion in entering the second default.
The defendant's argument that he was entitled to a hearing before the entry of default is without merit. A hearing must be held to assess damages that are in need of quantification. See Johnny's Oil Co. v. Eldayha, 82 Mass. App. Ct. 705, 709-710 (2012). See also Mass. R. Civ. P. 55 (b) (2).
4. Entry of default judgment. The defendant raises two claims regarding the award of damages and the entry of final judgment: (1) that the plaintiff was not entitled to damages because she had failed to state a legally valid claim on which relief could be granted; and (2) the second judge abused his discretion in holding an assessment of damages hearing.
"When ... a defendant is defaulted, well-pleaded facts are deemed to be admitted, but a plaintiff may recover only to the extent the complaint states a claim for relief" (citation omitted). Jones v. Boykin, 464 Mass. 285, 295 (2013). "Where a defendant defaults, the factual allegations in the complaint as to liability are deemed to be admitted by the defendant and treated as if they were true." Metropolitan Prop. & Cas. Ins. Co. v. Morrison, 460 Mass. 352, 360 (2011).
The plaintiff's complaint was premised on a theory of legal malpractice. "To prevail on a claim of negligence by an attorney, a client must demonstrate that the attorney failed to exercise reasonable care and skill in handling the matter for which the attorney was retained ...; that the client has incurred a loss; and that the attorney's negligence is the proximate cause of the loss." Greenspun v. Boghossian, 95 Mass. App. Ct. 335, 339 (2019), quoting Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 500 (2010). To show that she had a meritorious medical malpractice case, the plaintiff was required to "demonstrate that (1) [she] suffered harm; (2) the harm was caused by the defendant physician's conduct; and (3) the defendant physician was negligent." Parr v. Rosenthal, 475 Mass. 368, 376 (2016). However, "the issue of the damages for which the defendants are liable under the relevant allegations of the plaintiffs’ complaint remain[s] open during the hearing for the assessment of damages" (quotation and citation omitted). Jones, 464 Mass. at 295.
The second judge made careful and detailed findings regarding the sufficiency of the complaint. We have reviewed the complaint and the judge's findings and are fully satisfied that the well-pleaded facts, which are deemed admitted, are sufficient to form a basis for the relief granted. In the underlying case, the plaintiff alleged that her surgeon provided postoperative instructions that fell below the standard of care, with the result that her leg "snapped," that she was diagnosed with "catastrophic fractures of the right tibia and fibula," and that she remains "significantly disabled" and in "constant severe pain." With respect to the legal malpractice case, the complaint recounts a sorry history of neglect of the medical malpractice case by the defendant, its rejection at the tribunal, and its ultimate dismissal for failure to respond to discovery requests. The defendant's claim that these factual assertions are untrue, and that he did not cause the dismissal of the medical malpractice case, misses the point. He has forfeited his right to assert a dispute of fact by virtue of the entry of default. The allegations that he kept the plaintiff in the dark regarding overdue discovery and that he failed or refused to transfer the file to potential successor counsel are deemed admitted and are more than sufficient to demonstrate that his negligence caused the case to be dismissed.
For the same reasons, the defendant's motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), filed before the first default, was properly denied.
The defendant's final challenge is that the second judge erred by holding an assessment of damages hearing after the second default because the plaintiff had already had one opportunity to prove her damages at the first assessment of damages hearing. This argument utterly overlooks the fact that the defendant was given a second opportunity to redeem himself when the first default was lifted at the same time as the first assessment of damages hearing. After he was defaulted again, a second hearing was required because the amount of damages was not a sum certain. See Johnny's Oil Co. v. Eldayha, 82 Mass. App. Ct. 705, 710 (2012) ("the court ... has an obligation to assure that there is a legitimate basis for any damage award it enters, and to assure that damages are not awarded solely as the result of [a] ... defendant's failure to respond").
The defendant has not made any argument that the amount of damages awarded was incorrect, and has not provided us with a transcript of the hearing. At the second hearing the parties stipulated to past medical bills. The plaintiff testified and presented tax forms to establish loss of earning capacity due to her physical injury. The defendant did not cross-examine the plaintiff, introduce any exhibits, or testify. The second judge credited the plaintiff's testimony as to continual pain and discomfort, as well as loss of quality of life. However, the hearing judge gave limited weight to the plaintiff's evidence of loss of earning capacity. The plaintiff requested $3 million in damages and was awarded $750,000. Nothing before us suggests that there was any error in that award.
Judgment affirmed.