Sayegh v. Helinski

• Citation: 99 Mass.App.Ct. 1129,170 N.E.3d 357 (Table)
• Decision Date: 11 June 2021
• Docket Number: 20-P-168
• Parties: Miriam SAYEGH v. Stanley D. HELINSKI.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 1129

170 N.E.3d 357 (Table)

Miriam SAYEGH

v.Stanley D. HELINSKI.

20-P-168

Appeals Court of Massachusetts.

Entered: June 11, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Stanley D. Helinski, appeals from the entry of default judgment. He contends that the judge abused his discretion in (1) denying his motion to dismiss for insufficient service of process, (2) assessing sanctions for failing to appear at a scheduled damages assessment hearing, (3) ordering the entry of default, and (4) holding an assessment of damages hearing and ordering entry of default judgment against him. We affirm.

Background. In a comprehensive and thoughtful decision, the judge set forth in full the complicated and unfortunate factual and procedural history of this case. The plaintiff filed a complaint in the Superior Court in December 2017 alleging that the defendant committed legal malpractice in his handling of her medical malpractice claim. The defendant failed to timely answer the complaint or move to dismiss, and the plaintiff filed a motion for entry of default pursuant to Mass. R. Civ. P. 55 (a), 365 Mass. 822 (1974), which was denied without prejudice for failure to comply with Superior Court Rule 9A. The defendant filed a motion to dismiss the complaint on March 29, 2018. The plaintiff then refiled her motion for default. The first motion judge (first judge) held a single hearing on the defendant's motion to dismiss and the plaintiff's motion for entry of default. The defendant's motion was denied. With regard to the plaintiff's motion for entry of default, the judge ordered the defendant to file an answer to the complaint by a specific date or face default.

Once again, the defendant failed to timely answer the complaint, and a default entered against him on July 2, 2018. The plaintiff filed a motion for entry of a default judgment pursuant to Mass. R. Civ. P. 55 (b) (2) twice, first on July 12, 2018 and then on August 9, 2018.² A hearing on the assessment of damages was scheduled for September 26, 2018. The defendant failed to appear. The morning of the hearing the defendant faxed the trial court an affidavit stating he could not attend because he was scheduled to appear at trial in Bristol County.

A second motion judge (second judge) declined to issue a default judgment because the plaintiff failed to provide evidence of her damages and, in view of the amount of damages sought, the judge "would give defendant one more chance to appear." The second judge's order stated that he would permit the defendant to file a motion to remove the default. The plaintiff filed a motion seeking sanctions for the defendant's failure to appear at the September 26, 2018 hearing, which the judge allowed. The defendant's motion to remove the default was allowed on November 8, 2018 based on the judge's "belief that cases should be resolved on the merits wherever possible," with the caveat that the defendant was to pay the sanctions and comply with discovery.

On March 5, 2019 the plaintiff filed a "Motion for Entry of Default and Default Judgment," citing as grounds the defendant's lack of compliance with discovery orders and his failure to pay the $4,065.09 ordered as a sanction for the failure to appear at the September 26, 2018 hearing. The motion was allowed and a hearing on the assessment of damages was scheduled. Both parties appeared. The second judge awarded the plaintiff damages in the amount of $750,000, plus prejudgment interest. This appeal followed.

Discussion. 1. Service of process. The defendant contends that the first judge erred in denying his motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (5), 365 Mass. 754 (1974), for insufficient service of process.

The defendant was initially served at his place of business on January 10, 2018 by delivery of the summons and complaint to an attorney who accepted service at the defendant's place of business. It is unclear whether the plaintiff sought to serve the defendant pursuant to Mass. R. Civ. P. 4 (d) (1) or (2), as amended, 370 Mass. 918 (1976), but "[t]he plaintiff's submission of the return of service establishes prima facie evidence that service was validly made." Dumas v. Tenacity Constr., Inc., 95 Mass. App. Ct. 111, 115 (2019). See Mass. R. Civ. P. 4 (d). "The defendant can rebut the prima facie evidence with sufficiently detailed affidavits." Dumas, supra. Although the defendant claimed that the attorney was not authorized to accept service on his behalf, the motion to dismiss was not accompanied by an affidavit, and the defendant failed to appear at the motion hearing. However, after the defendant filed his motion to dismiss, the plaintiff served the defendant, in hand, on May 18, 2018, which is also evidenced by a return of service.³ The judge properly found that the in-hand service was sufficient. See Mass. R. Civ. P. 4 (d) (1) ; Christian Book Distribs., Inc. v. Wallace, 53 Mass. App. Ct. 905, 905-906 (2001) (sworn affidavit from process server that service was made on defendant was adequate to perfect court's exercise of jurisdiction).

2. Sanctions. The defendant contends that the second judge abused his discretion in ordering sanctions for the defendant's failure to appear at the first assessment of damages hearing. "We review the judge's imposition of sanctions under the court's inherent powers for abuse of discretion." Wong v. Luu, 472 Mass. 208, 220 (2015), citing Chambers v. NASCO, Inc., 501 U.S. 32, 55 (1991). "Among a judge's inherent powers is the authority to make the court's lawful orders effective. Exercising this power, a judge may impose reasonable court costs on an attorney who, by failing to obtain a timely continuance, delays the adjudication of legitimate claims and defenses, unnecessarily increases clients’ litigation expenses, and squanders limited judicial resources." Beit v. Probate & Family Court Dep't, 385 Mass. 854, 859-860 (1982).

As we have noted, a default entered against the defendant on July 2, 2018 for failing to timely answer the complaint after the denial of his motion to dismiss on June 11, 2018.⁴ The plaintiff then filed her motion for entry of default judgment pursuant to Mass. R. Civ. P. 55 (b) (2). The defendant did not appear at the hearing scheduled on September 26, 2018 nor did he timely seek a continuance. Instead, the defendant sent a fax to the court on the morning of the hearing stating he was scheduled to appear as counsel at a trial for which the trial date had been set weeks before.

In light of the second judge's findings, all supported by the record, he permissibly ordered the defendant to pay $4,065.09 in legal fees associated with plaintiff counsel's preparation for the hearing on assessment of damages and to remove the default, and the plaintiff's travel expenses.⁵ The judge demonstrated considerable restraint in allowing the defendant's motion to remove the default and providing the defendant a final opportunity to comply with court orders related to the case.⁶ The judge did not abuse his discretion in ordering sanctions against the defendant. See Beit, 385 Mass. at 861.

3. Entry of default. The defendant contends that the second judge abused his discretion in entering default judgment, see Mass. R. Civ. P. 55 (a), because there were extenuating personal circumstances that made it difficult for the defendant to meet court-imposed deadlines throughout the first year of the case. "Entry ... of default judgments has to do with the management of the case and, as such, is committed to the sound discretion of the trial judge." Greenleaf v. Massachusetts Bay Transp. Auth., 22 Mass. App. Ct. 426, 429 (1986). See Eagle Fund Ltd. v. Sarkans, 63 Mass. App. Ct. 79, 85 (2005). We review the decision to enter default judgment to determine whether "the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The circumstances to which the defendant refers took place during the period leading up to the first default, which was vacated. After allowing the defendant's motion to remove the first default, the second judge ordered the defendant to pay sanctions by February 8, 2019, comply with plaintiff's discovery requests, and agree with plaintiff's counsel on a date in January 2019 for his deposition. The judge warned the defendant that any failure to comply with these orders could result in entry of default. The defendant failed to pay the ordered sanctions, even though the judge granted his request for ninety days in which to do so. The defendant also failed to appear at his deposition.⁷ On March 27, 2019 the plaintiff once more sought entry of default for failure to comply with discovery and pay the ordered sanctions, and the motion was allowed.

"The consideration to be balanced in deciding a default question for failure to make discovery are, on one hand, a concern about giving parties their day in court, and, on the other, not so blunting the rules that they may be ignored ‘with impunity’ " (citation omitted). Eagle Fund Ltd., 63 Mass. App. Ct. at 85. The defendant's failure to comply with court-ordered discovery deadlines was only the latest in a series of actions in disregard of the court's orders. See Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 805-806 (2002). Where the second judge had already extended the defendant considerable latitude by removing the first default, he did not abuse his discretion in entering the second default.⁸

4. Entry of default judgment. The defendant raises two claims regarding the award of damages and the entry of final judgment: (1) that the plaintiff was not entitled to damages because she had failed to state a legally valid claim on which relief could be granted; and (2) the second judge abused his discretion in holding an assessment of damages hearing.

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