Opinion
19-P-1432
10-16-2020
The STUBBLEBINE COMPANY v. LINEHAN REALTY, LLC & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A default judgment entered against the defendants, Linehan Realty, LLC, Elaine M. Linehan, and Jeffrey Linehan (Linehan) (collectively, the Linehans), in the Superior Court. They appeal from the order denying their motion to vacate the default judgment under Mass. R. Civ. P. 60 (b) (1), 365 Mass. 828 (1974). We affirm.
On appeal, the Linehans do not challenge the portion of the order denying their request for relief under Mass. R. Civ. P. 60 (b) (3).
Background. This matter arises from the Linehans' alleged failure to pay the plaintiff, The Stubblebine Company, a broker's fee in connection with the sale of real estate located at 144-160 Hilldale Avenue, Haverhill.
On September 6, 2018, Stubblebine sent a demand letter to the Linehans claiming entitlement to a broker's fee in the amount of $97,000. In response, Linehan exchanged at least eight e-mails with Stubblebine's attorney in September 2018. In this e-mail exchange, Linehan claimed to have documentation proving that Stubblebine was not entitled to the fee, but he failed to respond to requests to provide the documentation to Stubblebine.
On September 27, 2018, Stubblebine filed in the Superior Court a complaint against the Linehans alleging breach of contract, breach of the covenant of good faith and fair dealing, conversion, and violations of G. L. c. 93A. On October 23, 2018, Linehan filed a letter with the court styled as an "emergency motion," requesting an extension of twenty days "to hire an attorney to file a ‘Motion to Dismiss’ this claim." A judge allowed the motion and gave the Linehans until November 30, 2018, to answer or otherwise respond to the complaint.
The Linehans took no further action, and Stubblebine filed a request for entry of default on December 7, 2018, which was entered on January 9, 2019. Stubblebine next filed a motion for issuance of default judgment for a sum certain, and on January 25, 2019, a second judge directed entry of judgment in favor of Stubblebine in the amount of $101,050.73. Following the end of the thirty-day appeal period, on March 5, 2019, Stubblebine obtained a writ of execution in the amount of $102,413.80.
The sum encompassed damages in the amount of $97,000, filing fees of $285, and postjudgment interest.
This amount reflects an increase of $1,363.07 in postjudgment interest.
On May 1, 2019, the Linehans moved to vacate the default judgment under rule 60 (b) (1). After a nonevidentiary hearing, the same judge who had granted the Linehans additional time to respond to the complaint denied the motion. The Linehans filed a timely notice of appeal.
Discussion. " Rule 60 (b) (1) authorizes relief from a final judgment for mistake, inadvertence, or excusable neglect .... The burden to establish one of these conditions is on the defendant." Hermanson v. Szafarowicz, 457 Mass. 39, 46 (2010). The case law defining and applying excusable neglect is well settled. "[E]xcusable neglect is meant to apply to circumstances that are unique or extraordinary, not to any ‘garden-variety oversight.’ " Shaev v. Alvord, 66 Mass. App. Ct. 910, 911 (2006), quoting Feltch v. General Rental Co., 383 Mass. 603, 613-614 (1981). See BJ's Wholesale Club, Inc. v. City Council of Fitchburg, 52 Mass. App. Ct. 585, 587-588 (2001), quoting Feltch, supra ("Excusable neglect ... ‘is [meant] to take care of emergency situations only’ "). "[T]he inquiry is fact intensive and case specific." McIsaac v. Cedergren, 54 Mass. App. Ct. 607, 609 (2002).
The removal of a default judgment is related to case management and "is committed to the sound discretion of the trial judge." Greenleaf v. Massachusetts Bay Transit Auth., 22 Mass. App. Ct. 426, 429 (1986). In reviewing the denial of a motion to vacate under rule 60 (b) (1), we will reverse "only on a clear showing of an abuse of discretion." Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 227 (1979). See Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 434 (1979) ("marked deference" given to trial court judges under rule 60 (b) as "judges in the motion and assignment sessions are in the best position to assess the merits of requests for this type of relief"). An abuse of discretion occurs when a judge makes a "clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." Institution for Sav. in Newburyport & Its Vicinity v. Langis, 92 Mass. App. Ct. 815, 823 (2018), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
In her memorandum of decision and order on the Linehans' motion to vacate the default, the judge concluded that their "failure to respond to the [c]omplaint was deliberate and intentional, ... and not the product of excusable neglect." The judge found that the Linehans knew how to seek an extension of time and that despite their claim that they were waiting to hear from their insurance company, they could have and should have sought additional time to respond if needed. Indeed, to explain his failure, Linehan stated in his affidavit only that he "did not keep track of the new date to respond." In addition, the judge found that Linehan threatened Stubblebine's counsel and that the Linehans lacked a meritorious defense.
In his e-mails responding to Stubblebine's demand letter, Linehan wrote, "[A]re you sure you want to go thr[ough] with this ... it WILL be costly and will effect [sic ] your clients [sic ] reputation," and, "I have to bring my attorney in ... and you (your client) will pay for his costs. [D]o we have to discuss this further[ ] or should I file a complaint with the A.G. office? Are you paying for my [a]ttorney's costs?" The judge found it noteworthy that in this exchange Linehan told Stubblebine that he had an attorney and was prepared to proceed with a complaint, yet he took no further action until nearly two months after the execution.
In this regard, the judge was referring to the second Berube factor. See Berube, 7 Mass. App. Ct. at 430. Those factors do not apply with full force in this case, in which the neglect was attributable to the parties themselves and not to any attorney. See Bird v. Ross, 393 Mass. 789, 791 (1985). In any event, our assessment of those factors does not compel the conclusion that the judge abused her discretion.
The Linehans had the burden of proving that the default "was not due to [their] own carelessness" (citation omitted), Scannell v. Ed. Ferreirinha & Irmao, LDA, 401 Mass. 155, 158 (1987), yet Linehan's affidavit essentially conceded carelessness. We are not persuaded by the Linehans' claim that their carelessness is excused because they expected their insurance company to preserve their interests while determining coverage. While it is true that a liability insurer owes a broad duty to defend its insured, the judge could have inferred that the Linehans' reliance on their home insurance provider was neither genuine nor reasonable. See id. at 159 (judge could have inferred that defendant was not in fact relying on insurer to defend it, or that its reliance was unreasonable).
While we recognize that the Linehans sought to remove the default within the one-year time frame applicable to motions under rule 60 (b) (1), and that the length of their delay was not egregious, the judge's denial of the motion to vacate was within her sound discretion.
Stubblebine's request for costs and fees under Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019), is denied.
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Order denying motion to vacate default judgment affirmed.