Hermanson v. Szafarowicz

• Decision Date: 04 June 2010
• Docket Number: SJC-10550.
• Citation: 927 N.E.2d 982,457 Mass. 39
• Parties: Gloria HERMANSONv.Mark SZAFAROWICZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

457 Mass. 39

927 N.E.2d 982

Gloria HERMANSONv.Mark SZAFAROWICZ.

SJC-10550.

Supreme Judicial Court of Massachusetts Worcester.

Argued Feb. 9, 2010.

Decided June 4, 2010.

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Mel L. Greenberg, Worcester, (Darragh K. Kasakoff with him) for the defendant.

Howard J. Potash, for the plaintiff.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

BOTSFORD, J.

This case arose out of a boundary dispute between the plaintiff, Gloria Hermanson, and the defendant, Mark Szafarowicz. The issues on appeal, however, have little connection to the boundary dispute but concern a default judgment that entered against the defendant in 2007. We must address (1) whether there is a conflict between Mass. R. Civ. P. 54(c), 365 Mass. 820 (1974), which provides that a default judgment may not exceed the amount claimed in the demand for judgment, and implicitly requires a plaintiff to state a specific amount of damages, and G.L. c. 231, § 13B (§ 13B), which prohibits a plaintiff from including in her complaint the “monetary amount claimed”; and (2) the validity of the default judgment that entered. We conclude that there is a conflict between rule 54(c) and § 13B, indicating a need to amend the rule, and that the motion for relief from judgment, insofar as it sought to remove the default entered against the defendant, see Mass. R. Civ. P. 55(c), 365 Mass. 822 (1974), was properly denied. We further decide, however, that the default judgment must be vacated and the case remanded for a hearing on damages.

1. Background.¹ The plaintiff owns a parcel of undeveloped land known as lot no. 1, Burnap Street, in Auburn. The plaintiff's lot abuts a similarly sized parcel of land, known as lot no. 2, Burnap Street, owned by the defendant. At some time in early 2002, in anticipation of building a home on his land, the defendant began to clear and prepare lot no. 2. In late February, 2002, however, the defendant ceased work on the project due to mental health issues; he was hospitalized for a number of days in March of that same year and until June was on prescription medications and unable to work.

In April, 2002, the plaintiff had her land surveyed and learned that the defendant, during his excavations, had removed trees from her parcel and had brought in fill for a driveway that was placed on her land. In response, the plaintiff commenced this action in the Superior Court, filing a “verified complaint for declaratory relief and to establish title” on May 6, 2002.

The plaintiff's complaint sought the following relief: (1) a declaration that she holds title in fee simple to her parcel; (2) an order requiring the defendant to (a) cease all excavation being done on the plaintiff's lot, and (b) restore the grade of her lot to the grade that existed before the defendant brought in fill; (3) a permanent injunction prohibiting the defendant from interfering with the plaintiff's enjoyment of her property, “including the removal of trees and installation of fill”; (4) an award of damages for the value of the trees that the defendant removed from the plaintiff's property; (5) damages “for the loss of a sale that the [p]laintiff had arranged but was not able to go through with due to the boundary dispute created by the [d]efendant”; and (6) costs and attorney's fees. She did not include in her complaint a request for a specified amount of damages, nor did she list any damage amounts on her civil action cover sheet filed pursuant to Rule 29 of the Rules of the Superior Court (2008-2009).

Service of the complaint was made on the defendant on May 25, 2002, at his last and usual address with proof of service returned on July 26, 2002. The defendant did not file an answer or other response to the complaint; in their respective affidavits, the defendant and his wife state that they have no recollection of being served with it. The docket entries indicate that neither the plaintiff nor the court undertook any action with respect to the case from May of 2002 until 2007, except for the payment by her attorney of an annual civil litigation fee in 2004 and the filing of an appearance of successor counsel by the plaintiff in 2005.

On January 29, 2007, a default entered against the defendant.² On March 1, an order entered dismissing the plaintiff's complaint without prejudice for failure to comply with a court order dated January 29, 2007. ³ The defendant acknowledges receipt of notice of this dismissal from the court, but not of any notice of the default that entered against him on January 29. Later in March, the plaintiff successfully moved to vacate the judgment of dismissal, and then filed a motion for assessment of damages against the defendant. In her motion and accompanying affidavits (one of her own and an affidavit of a real estate appraiser), the plaintiff described her damages as including $50,000 for “[d]iminution of value of my property,” and survey and appraisal expenses of $3,239.02, for a total of $53,239.02; the plaintiff also sought an award of attorney's fees in the amount of $4,000.

On June 29, 2007, a judge in the Superior Court (first motion judge), without holding a hearing, allowed the plaintiff's motion for assessment of damages in “the [amounts] set forth in [plaintiff's] affidavit.” A default judgment pursuant to Mass. R. Civ. P. 55(b)(2), 365 Mass. 822 (1974),⁴ entered on July 6, 2007, in the amount of $53,239.02 in damages, plus $33,011.40 in statutory interest calculated from the date of the filing of the complaint in May, 2002, $4,000 in attorney's fees, and costs. The total was $90,471.67. The court mailed a copy of the default judgment to the defendant on the same day, but the defendant states in his affidavit that he “heard nothing further about the case until August 2007, when [he] received notice that the Sheriff had levied upon [his] property for the amount of $91,631.70.” ⁵

On March 24, 2008, the defendant, through his attorney, filed a motion for relief from the default judgment pursuant to Mass. R. Civ. P. 60(b), 365 Mass. 828 (1974),⁶ attaching his own affidavit, an affidavit of his wife, medical bills from 2002, and land and arborist appraisals. The plaintiff opposed the motion, and after a hearing, a different Superior Court judge (second motion judge) denied it. After his motion for reconsideration was denied, the defendant appealed from the denial of his rule 60(b) motion to the Appeals Court. We transferred the case on our own motion.

2 Discussion. a Relief from judgment: rule 54(c) and § 13B. Rule 54(c) provides:

“A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”

By its terms, the first sentence of the rule precludes a plaintiff who seeks a default judgment from recovering any money damages over the amount or amounts stated specifically in the complaint. In effect, therefore, the rule requires a plaintiff who seeks to recover money damages to include the amount of the damages sought within her claims for relief, see Mass. R. Civ. P. 8(a), 365 Mass. 749 (1974),⁷ or be barred from any recovery of damages at all.

Section 13B, inserted by St.1986, c. 708, § 5, with exceptions not relevant here, precludes a plaintiff from including in a complaint the “monetary amount claimed.” This section reads as follows:

“No complaint in any civil action shall contain an ad damnum or monetary amount claimed against any defendant, unless such ad damnum or monetary amount claimed indicates damages which are liquidated or ascertainable by calculation and a statement under oath by a person having knowledge thereof is attached to such complaint setting forth the manner in which the amount of said damages was calculated. For the purposes of this section complaint shall include a claim, crossclaim, or counterclaim.”

Before the enactment of § 13B, we determined that in the event of a defendant's default, a plaintiff's entitlement to recover damages in a default judgment was limited to the amount originally requested in the complaint. Scannell v. Ed. Ferreirinha & Irmao, Lda., 401 Mass. 155, 161-164, 514 N.E.2d 1325 (1987) ( Scannell ) (award of default judgment damages originally entered in amount of $1,750,000 but was reduced to $800,000, amount plaintiff originally prayed for in demand for judgment). See Buffum v. Rockport, 36 Mass.App.Ct. 377, 381-382, 632 N.E.2d 414 (1994); Jabaily v. Cullen, 18 Mass.App.Ct. 943, 945, 467 N.E.2d 881 (1984). The Scannell decision referenced § 13B, but because the statute had been enacted after entry of final judgment in that case, the court anticipated but did not directly address the conflict that would arise between § 13B and rule 54(c). Id. at 164-165 n. 9, 514 N.E.2d 1325.

The defendant, without any citation to or mention of § 13B in his brief, asserts that he is entitled to relief from the default judgment against him because the provisions of rule 54(c) render the judgment void. See Mass. R. Civ. P. 60(b)(4). Specifically, the defendant claims that in violation of rule 54(c), the plaintiff was awarded money damages in an amount exceeding that contained in her complaint, a pleading that did not include any damage figure at all; that such a violation of rule 54(c) is jurisdictional; and that accordingly the default judgment is “null and void.”

The defendant's argument has no merit. Given the unliquidated nature of the plaintiff's claims, § 13B operated to prohibit the plaintiff from including in her complaint a specified amount of damages, and the plaintiff's complaint complied with § 13B's strictures. As a consequence, the default judgment award that included over $90,000 in damages necessarily violated rule 54(c)...