Johnny's Oil Co. v. Eldayha

• Decision Date: 08 November 2012
• Docket Number: No. 11–P–1682.,11–P–1682.
• Parties: JOHNNY'S OIL COMPANY, INC. v. Walid ELDAYHA.
• Court: Appeals Court of Massachusetts

82 Mass.App.Ct. 705

978 N.E.2d 86

JOHNNY'S OIL COMPANY, INC.

v.Walid ELDAYHA.

No. 11–P–1682.

Appeals Court of Massachusetts,

Plymouth.

Argued May 30, 2012.

Decided Nov. 8, 2012.

Michael Savage for the defendant.

Joseph A. Enriquez, West Bridgewater, for the plaintiff.

Present: GRAHAM, VUONO, & AGNES, JJ.

AGNES, J.

The defendant, Walid Eldayha, appeals from an order denying his motion for relief from a default judgment in favor of the plaintiff, Johnny's Oil Company, Inc. (Johnny's Oil), entered by a clerk of the Superior Court on what is, essentially, a collection action for gasoline delivered to stations owned or controlled by Eldayha.¹ The issues before us are whether the motion judge abused his discretion by denying Eldayha's prejudgment motion to vacate the entry of default, and whether a second motion judge abused his discretion by denying Eldayha's motion for relief from the default judgment. With regard to his motion for relief from the default judgment, Eldayha argues, among other things, that the entry of judgment by a Superior Court clerk pursuant to Mass.R.Civ.P. 55(b)(1), as amended, 454 Mass. 1401 (2009), was improper because Johnny's Oil's claim was not for a “sum certain” or “a sum which can by computation be made certain.” ²

Procedural facts. Johnny's Oil filed a four-count complaint against Eldayha on March 21, 2011. The first two counts allege breach of contract and “misrepresentation & detrimental reliance” based upon Eldayha's failure to pay for the delivery of gasoline to stations owned or controlled by him. The complaint alleges that the balance due for the gasoline was $143,963.71, and requests this amount for each of the first two counts. Count three alleges misrepresentation and detrimental reliance on the basis of Eldayha's request that Johnny's Oil purchase a “model year 2000 Freightliner tank wagon truck” in order to service Eldayha's gasoline stations. Johnny's Oil alleged that it purchased such a truck in reliance on Eldayha's request, at a cost of $92,500. The complaint further states that Eldayha then “refused to pay for the gasoline and any future orders.” The final count states a G.L. c. 93A claim. Service of the complaint was made on Eldayha's last and usual place of abode on March 28, 2011.

As of April 22, 2011, Eldayha had not responded to the complaint, and Johnny's Oil filed a motion for a default pursuant to Mass.R.Civ.P. 55(a), 365 Mass. 822 (1974), which a clerk entered on the same day. On May 5, 2011, Eldayha filed a motion to remove the default and to file his answer late. ³ Johnny's Oil filed an opposition on May 11, 2011, and on May 17, 2011, it moved for default judgment pursuant to Mass.R.Civ.P. 55(b)(1). ⁴ On June 6, 2011, Eldayha's motion to vacate the default was denied.

On July 14, 2011, a Superior Court clerk notified Johnny's Oil that waiver of its c. 93A claim was required prior to entry of default judgment under rule 55(b)(1). Johnny's Oil voluntarily dismissed that count of the complaint without prejudice on July 29, 2011, and additionally submitted an affidavit from its president in support of its motion for default judgment. The president's affidavit states that “[p]ursuant to a longstanding agreement,” Eldayha had promised to pay for gasoline deliveries to service stations he owned and operated but had failed to do so for deliveries “with a total cost of $143,963.71.” The affidavit further states that the tank truck, which Johnny's Oil had purchased based upon Eldayha's request, had cost $92,500. Finally, the president avers that Johnny's Oil's “books of account” show that Eldayha is indebted to Johnny's Oil in the total amount of $236,463.71.

On August 9, 2011, a clerk of the court entered default judgment against Eldayha in the amount of $236,463.71 plus interest in the amount of $10,961.65. Eldayha moved for relief from the judgment, pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), on September 1, 2011. That motion was denied by a second judge on September 6, 2011.

Discussion. 1. Motion to vacate default. Eldayha argues that the first motion judge abused his discretion when he refused to vacate the default. A defendant may obtain relief from a default on a showing of “good cause.” See Mass. R. Civ. P. 55(c), 365 Mass. 822 (1974); Bissanti Design/Build Group v. McClay, 32 Mass.App.Ct. 469, 470, 590 N.E.2d 1169 (1992). “Good cause” requires a showing by affidavit that the defendant had a good reason for failing to plead or defend in a timely manner and had meritorious defenses. See New England Allbank for Sav. v. Rouleau, 28 Mass.App.Ct. 135, 140, 547 N.E.2d 61 (1989). See also Smith & Zobel, Rules Practice § 55.8 (2d ed. 2007). We review a judge's decision not to vacate a default for abuse of discretion. New England Allbank for Sav., supra at 144, 547 N.E.2d 61. “We do not consider that discretion abused unless its exercise has been characterized by arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice.” Greenleaf v. Massachusetts Bay Transp. Authy., 22 Mass.App.Ct. 426, 429, 494 N.E.2d 402 (1986).

In his motion to vacate the default, Eldayha stated that the reason for his failure to file his answer was that the complaint was “served at a domicile from which I was in the process of vacating.” However, he failed to accompany his motion, as required, with an affidavit setting forth the facts and circumstances, including the nature of his defenses, offering, instead, a motion with mere conclusory statements that he had a meritorious defense. That, alone, is a fatal omission. See New England Allbank for Sav., 28 Mass.App.Ct. at 140, 547 N.E.2d 61. Consequently, we conclude that the first motion judge did not abuse his discretion in denying Eldayha's motion to vacate the default.

2. Motion for relief from default judgment. a. Excusable neglect. Eldayha also claims that the second motion judge abused his discretion in denying the rule 60(b) motion for relief from the default judgment. “Rule 60(b) of the Massachusetts Rules of Civil Procedure provides a limited exception to the finality of a judgment. Relief is available in a narrow set of circumstances, specified in subdivisions (b)(1) through (b)(6), to accomplish justice.” Jones v. Boykan, 79 Mass.App.Ct. 464, 468, 947 N.E.2d 87 (2011). “Rule 60(b)(1) permits a judge ... to relieve a party from the effect of an otherwise final judgment for reasons of ‘mistake, inadvertence,surprise, or excusable neglect.’ ” Berube v. McKesson Wine & Spirits Co., 7 Mass.App.Ct. 426, 429, 388 N.E.2d 309 (1979). “Excusable neglect requires circumstances that are unique or extraordinary[, not] any kind of garden-variety oversight.” Feltch v. General Rental Co., 383 Mass. 603, 613–614, 421 N.E.2d 67 (1981) (citations and quotations omitted). “Entry or, conversely, removal of default judgment has to do with the management of the case and, as such, is committed to the sound discretion of the trial judge.” Greenleaf, 22 Mass.App.Ct. at 429, 494 N.E.2d 402.

In his affidavit supporting his motion for relief from judgment, Eldayha generally alleges that at the time of service he was having marital difficulties and that his “wife ... did not give me the Complaint until the twenty days had expired. I believe she did this out of spite knowing the delay would be harmful.” Assuming the statements rose to the “extraordinary” level required to show good cause or excusable neglect, the judge did not abuse his discretion by denying Eldayha's motion because Eldayha presented only conclusory assertions rather than a demonstration that he had a meritorious defense to liability on the claims.

b. Sum certain. i. Gasoline charges. Our rules of civil procedure authorize a clerk to enter a judgment by default, as distinguished from the entry of a default, only when, among other requirements, “the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain.” Mass.R.Civ.P. 55(b)(1). In such a case there is no hearing and no oversight by a judge. The clerk's responsibility is ministerial—to make a computation of damages, which may include the addition of interest. In all other cases, entry of a judgment by default may only be accomplished by order of a judge.⁵ See Mass.R.Civ.P. 55(b)(2).

Even where a defendant makes no appearance in a case, a default judgment does not automatically enter for a plaintiff. It is settled “that a default does not concede the amount of damages.” Bissanti Design/Build Group, 32 Mass.App.Ct. at 471, 590 N.E.2d 1169, citing Productora e Importadora de Papel, S.A. de C.V. v.Fleming, 376 Mass. 826, 832–835, 383 N.E.2d 1129 (1978). This is because the court, as has been noted in regards to the analogous Fed.R.Civ.P. 55, see note 7, infra, “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,” in this case, to a complaint. Anheuser–Busch, Inc. v. Philpot, 317 F.3d 1264, 1266 (11th Cir.2003). In order to fulfill this burden, a trial court must “conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir.1999).

Prior to the adoption of the rules of civil procedure, a judge was authorized to order entry of judgment following a default either “by taking evidence when necessary or by computation from facts of record.” Plasko v. Orser, 373 Mass. 40, 44 n. 3, 364 N.E.2d 1220 (1977), quoting from Pope v. United States, 323 U.S. 1, 12, 65 S.Ct. 16, 89 L.Ed. 3 (1944).⁶ “ Rule 55(b) [did] not substantially change Massachusetts practice.” 1973 Reporter's Notes to Mass.R.Civ.P. 55, 46 Mass. Gen. Laws Ann., Rules of Civil Procedure, at 763 (West 2006). The change brought about by the adoption of rule 55(b)(1) (at the time applicable to all courts except the District and Boston...