Dumas v. Tenacity Constr. Inc.

• Decision Date: 03 April 2019
• Docket Number: No. 18-P-293,18-P-293
• Parties: George P. DUMAS, Third v. TENACITY CONSTRUCTION INCORPORATED.
• Court: Appeals Court of Massachusetts

95 Mass.App.Ct. 111

121 N.E.3d 711

George P. DUMAS, Third

v.TENACITY CONSTRUCTION INCORPORATED.

No. 18-P-293

Appeals Court of Massachusetts, Essex..

Argued December 3, 2018

Decided April 3, 2019

William P. McGovern, Jr., Boston, for the defendant.

Beth R. Levenson, Mansfield, for the plaintiff.

Present: Sullivan, Massing, & Sacks, JJ.

MASSING, J.

When a defendant files a motion for relief from a default judgment under Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974), alleging that the judgment is void because of improper service of process, the judge is bound to accept the defendant's uncontroverted affidavits as true. In this appeal, the defendant, Tenacity Construction Incorporated (Tenacity), asserts that the sheriff's return of service did not controvert the affidavits Tenacity offered in support of its motion, and that the judge therefore lacked the discretion to deny the motion solely because he disbelieved the affidavits. Because we conclude that the motion should not have been denied on the affidavits and that further proceedings are necessary to determine whether relief from the default judgment is warranted, we vacate the order denying the motion and remand for an evidentiary hearing.

Background. 1. The plaintiff's allegations. The plaintiff, George P. Dumas, III, alleged that on January 13, 2014, he was working for Dumas Roofing Company, Inc., on a construction project in Northborough. Tenacity was the general contractor. While Dumas was climbing a ladder, another subcontractor's vehicle struck the building, causing shingles to fall from the roof. The shingles knocked Dumas off the ladder and onto the ground, causing serious injury.

2. Proceedings: default judgment. Dumas filed a complaint in the Superior Court on September 26, 2014, alleging that Tenacity was negligent in its oversight and supervision of the project. On November 24, 2014, Deputy Sheriff Kevin Monahan filed a return of service stating that on November 4, 2014, he served the summons and complaint "by delivering in hand to Mark Foley, person in charge^{[1 ]} at the time of service for Tenacity Construction Incorporated, 194 Newbury Street Apartment 7 Peabody, MA 01960."

Tenacity did not respond to the complaint. On December 24, 2014, at Dumas's request, the clerk entered a default. See Mass. R. Civ. P. 55 (a), 365 Mass. 822 (1974). Dumas then filed motions for a hearing to assess damages and for the entry of a default judgment under Mass. R. Civ. P. 55 (b) (2), as amended, 463 Mass. 1401 (2012). Following a number of continuances, the judge held a hearing on March 3, 2016 -- Tenacity did not participate -- and on May 17, 2016, issued a memorandum and order assessing Dumas's damages at $ 3,256,300. A default judgment entered on July 19, 2016, and a writ of execution issued on September 6, 2016, in the amount of $ 3,450,901.21, reflecting the addition of prejudgment and postjudgment interest.

3. Motion for relief from judgment. Tenacity received a demand for payment of the judgment on October 3, 2016, which it claimed was its first notice of the lawsuit. On January 30, 2017, Tenacity filed the motion for relief from default judgment that is the subject of this appeal. Tenacity supported its motion with the affidavits of Arthur Pimental and Mark Foley.

Pimental, Tenacity's president and registered agent, averred that Tenacity employed Mark Foley -- the individual the deputy sheriff identified in his return of service -- as a senior project manager. Pimental stated that Foley was never the person in charge of Tenacity at the 194 Newbury Street address.² Rather, Pimental stated, "On November 4, 2014, I was the person in charge of the business for Tenacity Construction at 194 Newbury Street, Peabody, Massachusetts." Pimental further stated that Tenacity's officer manager, Catherine Buckley, would have been responsible for forwarding notice of any lawsuit to Tenacity's insurance agent. Although Buckley no longer worked at Tenacity, Pimental reviewed Buckley's files and e-mails and "found no record of the lawsuit." In thirteen numbered paragraphs, Pimental specifically denied receipt or knowledge of a number of papers and events concerning the lawsuit, from the summons and complaint in November 2014 through the assessment of damages and entry of judgment in July 2016. He stated that the demand for execution, which Tenacity received on October 3, 2016, was his first notice of the lawsuit.

Foley stated in his affidavit that he was a senior project manager but had never been the person in charge of the business at the Newbury Street address. He "d[id] not recall being served" with the summons and complaint and was unaware of any court order, court hearing, or correspondence related to the suit prior to October 3, 2016. Foley stated that if he had been served, he would have given the summons and complaint to the office manager, Buckley. According to both Foley and Pimental, Tenacity retained any information about a project, including information about onsite injuries, in a file kept in a three-ring binder. Both Foley and Pimental reviewed the binder for the project Dumas worked on but did not find any documents concerning the lawsuit.

Dumas opposed Tenacity's motion with the deputy sheriff's return of service. In addition, Dumas submitted copies of notices, motions, and correspondence addressed to, or indicating service upon, Pimental or Tenacity, together with the affidavit of Dumas's attorney, who described the various notices, motions, and letters he had sent or served after the complaint was filed.

The judge held a nonevidentiary hearing on Tenacity's motion for relief from judgment. The judge denied the motion, concluding that the deputy sheriff's return of service constituted prima facie evidence of service, which Tenacity had failed to overcome. The judge reasoned that Foley's statement that he did "not remember being served" did not directly contradict the return of service. In addition, the judge discredited Tenacity's representations that Foley was not the person in charge. The judge disbelieved Foley's statement to this effect because it was conclusory, and he did not set forth specific facts explaining why a senior manager would not be in charge of the business. As to Pimental's affidavit, the judge compared Dumas's attorney's account of having sent Tenacity notices and correspondence regarding the litigation with Pimental's denials of having received any, and concluded that the attorney was more credible; accordingly, the judge found that Pimental's "incredible denials undermine[d] the believability" of his statement that Foley was not the person in charge. Finding "no credible evidence" that Foley was not served and was not the person in charge at the time of service, the judge concluded that Tenacity had failed to carry its burden of proving that service was improper.

Discussion. 1. Challenging service of process. After entry of a final judgment in the trial court, a party may file a motion for relief from that judgment on various grounds, including, as relevant here, when "the judgment is void." Mass. R. Civ. P. 60 (b) (4). A default judgment is void if the defendant has not been properly served with process. See Uzoma v. Okereke, 88 Mass. App. Ct. 330, 330-331, 37 N.E.3d 654 (2015) ; Wang v. Niakaros, 67 Mass. App. Ct. 166, 169, 172, 852 N.E.2d 699 (2006) ; Fleishman v. Stone, 57 Mass. App. Ct. 916, 916, 784 N.E.2d 20 (2003). While most rule 60 (b) motions are addressed to the motion judge's discretion, see Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 227, 386 N.E.2d 211 (1979), a judge has no discretion to deny a request for relief from a void judgment and must vacate it. See Wang, supra at 169, 852 N.E.2d 699 ; Fleishman, supra. Consequently, we review de novo the denial of a rule 60 (b) (4) motion. Compare Sullivan v. Smith, 90 Mass. App. Ct. 743, 746-747, 65 N.E.3d 1221 (2016) (de novo review of rule 60 [b] [4] motion for lack of personal jurisdiction).

In general, the plaintiff bears the burden of establishing the validity of service of process. See Homer v. Jones-Bey, 415 F.3d 748, 754 (7th Cir. 2005) ; Rivera-Lopez v. Municipality of Dorado, 979 F.2d 885, 887 (1st Cir. 1992) ("once challenged, plaintiffs have the burden of showing proper service").³ Compare Nichols Assocs. v. Starr, 4 Mass. App. Ct. 91, 93, 341 N.E.2d 909 (1976) ("[A] plaintiff confronted with a Rule 12 (b) (2) motion has the burden of establishing the facts upon which the question of personal jurisdiction over a defendant is to be determined").

The plaintiff's submission of the return of service establishes prima facie evidence that service was validly made. See Johnson v. Witkowski, 30 Mass. App. Ct. 697, 714, 573 N.E.2d 513 (1991). See also Blair v. City of Worcester, 522 F.3d 105, 111 (1st Cir. 2008) ; O'Brien v. R.J. O'Brien & Assocs., 998 F.2d 1394, 1398 (7th Cir. 1993). The defendant can rebut the prima facie evidence with sufficiently detailed affidavits. See Farley v. Sprague, 374 Mass. 419, 424, 372 N.E.2d 1298 (1978) ; Konan v. Carroll, 37 Mass. App. Ct. 225, 229, 638 N.E.2d 936 (1994). See also Blair, 522 F.3d at 112 ("Under Massachusetts law, an affidavit is sufficient to refute the prima facie presumption created by a return of service").⁴ At that point, the plaintiff must carry the ultimate burden of proving proper service. See id. ; Rivera-Lopez, 979 F.2d at 887 ("once challenged, plaintiffs have the burden of proving proper service").

Service of process on a domestic corporation is governed by G. L. c. 223, § 37, which states that "service shall be made upon the president, treasurer, clerk, resident agent appointed pursuant to [c. 156D, part 5], cashier, secretary, agent or other officer in charge of its business," and by Mass. R. Civ. P. 4 (d) (2), as amended, 370 Mass. 918 (1976), which requires service "to an officer, to a managing or general agent, or to the person in charge of the business at the principal place of business...