Opinion
10-P-1739
11-16-2011
HOLLY WEINREICH v. KEVIN G. SMITH.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Kevin G. Smith, appeals from a Superior Court 'judgment by default upon assessment of damages.'
Background. The defendant, a carpenter and contractor, contracted with the plaintiff, a homeowner in Pembroke, in February, 2006, to repair her house which had been damaged by a fallen tree. Following completion of that work and the plaintiff's settlement with her insurer, the parties entered into a new contract in June for the demolition of the house and construction of a new house on the same site. As a result of changes in the scope and cost of the project, work stopped in October, and the plaintiff ordered the defendant to leave the site in March, 2007.
The plaintiff sent a G. L. c. 93A notice letter to the defendant on April 2, 2007, and received no adequate settlement response. She filed a complaint and an ex parte motion for real estate attachment on August 16, 2007, in the Superior Court. The defendant was served with the complaint together with a notice of the ex parte attachment on September 4, 2007. Not receiving an answer, the plaintiff obtained an order for entry of default after a hearing on November 14, 2007. The defendant neither appeared nor was represented by counsel during these events.
After obtaining counsel, the defendant's effort to vacate the default was denied by a Superior Court judge in July, 2008. In August, 2009, an assessment of damages hearing was conducted by another Superior Court judge who issued findings of fact, rulings, and an order for judgment, awarding the plaintiff damages of $75,147.47. The defendant appeals from that judgment.
Discussion. 1. The default order. The default order was entered against the defendant for the failure to respond to the plaintiff's complaint within the twenty day period prescribed by Mass.R.Civ.P. 12(a)(1), 365 Mass. 754 (1974), after notice was given on September 4, 2007.
'Rule 55(a) of the Massachusetts Rules of Civil Procedure provides that a defendant failing to answer a complaint in timely fashion shall be defaulted. [Mass.R.Civ.P. 55(a), 365 Mass. 822 (1974)]. Rule 55© provides that the court, for good cause shown, may 'set aside an entry of default." Mass.R.Civ.P. 55©, 365 Mass. 823 (1974). Cicchese v. Tape Time Corp., 28 Mass. App. Ct. 72, 74 (1989). After obtaining counsel, the defendant moved on January 8, 2008, to vacate the default order, principally stating that he intended at all times to answer the complaint, that he diligently sought counsel to represent him, and that he intended to vigorously defend against the plaintiff's action. A Superior Court judge held two hearings on June 23, 2008, and July 3, 2008.
At the first hearing, the defendant stated in an affidavit that he had received the plaintiff's complaint but did not understand he had to file a document in response, instead believing he had to 'make a physical appearance.' He stated that he had met with at least four attorneys in order to obtain legal counsel, thinking each one would answer the complaint, and believed he had meritorious defenses. The judge summarily denied the motion to vacate without prejudice, requesting that the defendant obtain affidavits from the attorneys he sought to represent him in order to explain the reason for not filing a timely responsive pleading to the plaintiff's complaint.
At the second hearing, affidavits of three attorneys were presented, each indicating that they had conferred with the defendant on September 7, 10, and October 30, 2007, respectively, and each attorney told the defendant that he would not represent him in this case.
In determining whether to allow relief, the judge could consider: (1) the length of time the defendant waited to answer the complaint and to respond to the entry of default; and (2) whether the defendant filed an affidavit asserting either a reason for the default or meritorious defenses. Cicchese v. Tape Time Corp., 28 Mass. App. Ct. at 74-75.
Because these affiants clearly informed the defendant they could not represent him, the affidavits do not support the defendant's belief that any one of them would have answered the complaint. In any event, the defendant has not advanced any reason why he could not have appeared personally at any time to ask that the proceedings be delayed until he obtained counsel. The nature of the defendant's consultation with the three attorneys is not disclosed, but the defendant must have been aware that a response to the plaintiff's complaint was necessary, yet he does not explain what efforts he made between the time they declined to represent him and early January, 2008, to secure counsel or otherwise respond to the plaintiff's complaint.
Next, the defendant stated that he had meritorious defenses and intended to assert counterclaims. However, he failed to show by affidavit what those defenses were. In the materials submitted he essentially argued that the plaintiff failed to make payments due or failed to pay additional amounts due for various work items and services he had performed. In the answer and demand for jury trial document, he listed fourteen affirmative defenses and four counterclaims in pro forma fashion, but did not provide any reasoned argument which could be considered a meritorious defense.
Among the documents in the record are an answer and demand for jury trial, and an affidavit of the defendant dated June 11, 2008.
All of the judge's actions appear to have been made without comment in the record. The parties have not provided a transcript of the hearings. They agree, however, that the judge concluded the defendant failed to show excusable neglect or sufficient grounds to set aside the default order.
The correct standard in deciding whether to set aside a default is stated in Mass.R.Civ.P. 55©, 365 Mass. 823 (1974): '[F]or good cause shown the court may set aside an entry of default and, if a judgment has entered, may likewise set it aside in accordance with Rule 60(b).' Buffum v. Rockport, 36 Mass. App. Ct. 377, 379 n.2 (1994).
'[T]he judge was not required to accept as 'good cause,' under rule 55©, the claim asserted in the defendant['s] motion that [he was] under the mistaken belief that an answer had been filed, nor was he obliged to accept [his] conclusory statement that [he] had valid defenses.' Bissanti Design/Build Group v. McClay, 32 Mass. App. Ct. 469, 470 (1992).
'The removal of an entry of default under rule 55© is a matter 'addressed to the sound discretion of the trial judge." Burger Chef Sys., Inc. v. Servfast of Brockton, Inc., 393 Mass. 287, 289 (1984), quoting from Silkey v. New England Tel. & Tel. Co., 9 Mass. App. Ct. 816, 816 (1980). The defendant fails to show that the judge abused his discretion in denying his motion to vacate the default.
We do not consider the defendant's assertion that it was an error of law to deny his motion, filed June 18, 2008, to vacate the attachment. There is no indication that this motion was considered during the hearings on the defendant's motion to vacate the default. In this appeal, the defendant fails to present specific facts which call into question the plaintiff's compliance with the requirements of Mass.R.Civ.P. 4.1(h), as amended, 365 Mass. 740 (1974), at the time the attachment was issued.
2. The damages judgment. An evidentiary hearing was held over three days in August, 2009, on the plaintiff's motion for assessment of damages, where the plaintiff and the defendant testified, and each presented the testimony of an expert. The judge stated the focus was on damages arising from the breach of contract claim. Because the parties are thoroughly familiar with the evidence supporting the judge's detailed findings, we summarize only the major findings leading to his damage award of $75,147.47 for the plaintiff.
On February 2, 2009, the parties filed a joint motion for an expedited assessment of damages hearing.
The total cost of the June, 2006, contract for construction of the new home was agreed to be $122,500. Changes in the scope of work added $27,012, and the judge, crediting the defendant's expert, found that the defendant was entitled to an additional $3,781.68 for overhead and profit, thereby increasing the contract price to $153,293.68.
The plaintiff's payments to the defendant and his suppliers and subcontractors totalled $80,936.15. The plaintiff's expert testified that the cost to complete the house would be $134,505.
The judge noted that there was '[s]cant or no evidence submitted on damages attributed to the plaintiff's claims for misrepresentation, conversion, or fraud.' The judge also noted that the plaintiff's G. L. c. 93A claim 'was not pressed during trial.'
The judge also rejected a number of other costs claimed as extras by the defendant and his expert because to the extent that they were presented as a defense, they were deemed waived based on the defendant's default status; and, in any event, either were or should have been encompassed within the June 23, 2006, contract.
The measure of damages in a breach of construction contract case is the reasonable cost of completion, less any amount due but not paid to the contractor. Louise Caroline Nursing Home, Inc. v. Dix Constr. Corp., 362 Mass. 306, 310-311 (1972). Here, the reasonable cost of completion was $134,505. Taking into account the increased contract price of $153,293.68, the amount unpaid was $72,357.53. Subtracting that amount from the cost to complete produces damages in the amount of $62,147.47. The judge also determined that the plaintiff was entitled to consequential damages of $13,200, Boylston Hous. Corp. v. O'Toole, 321 Mass. 538, 562-563 (1947), for rent she was required to pay for substitute housing during construction, resulting in total damages of $75,147.47.
The judge's findings were made in accordance with Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1401 (1996). See First Pennsylvania Mort. Trust v. Dorchester Sav. Bank, 395 Mass. 614, 621 (1985). The findings are fully supported by the evidence. The defendant does not challenge any findings as clearly erroneous. No error of fact or law appears.
We note an arithmetical error in the total amount of damages: $75,147.47 should be $75,347.47.
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Judgment affirmed.
By the Court (Cypher, McHugh & Kafker, JJ.),