Opinion
14-P-1597
02-02-2016
SUZANNE MOORE v. TANIA THOMPSON ST. LAURENT & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff Suzanne Moore appeals from a default judgment in favor of the defendants, Tania Thompson St. Laurent and Velma McLaughlin, and an order dismissing her complaint for contempt in the Superior Court. On appeal, she argues that the judge abused her discretion in ordering the default judgment, allowing the withdrawal of the plaintiff's attorney, and dismissing the plaintiff's complaint for contempt.
In the underlying case, the plaintiff obtained an injunction ordering the defendants to move out of her mother's house, which the plaintiff and her brother inherited after their mother's death. Prior to leaving, the defendants allegedly removed property and damaged the house, which prompted the plaintiff to file a complaint for contempt. The defendants filed counterclaims chiefly alleging that the plaintiff owed them wages.
The defendants were the caretakers of the plaintiff's mother and as part of the arrangement, resided on the property.
The injunction stated, in pertinent part, that the "Defendants shall not remove property belonging to the Plaintiff from the Premises and shall not cause damage to the Premises." App 21.
Almost a year later, a pretrial conference was held on April 16, 2014 at which the plaintiff agreed to a trial date of May 6, 2014. One week later the plaintiff filed a motion. unopposed by the defendants, to continue the trial to the September sitting. The motion was accompanied by the plaintiff's affidavit indicating she resided in Canada and was too ill to travel. The judge denied the motion, but allowed the plaintiff "to testify via Skype or similar telephonic technology, to be arranged by [the] plaintiff's counsel."
The Superior Court sits on Nantucket Island twice yearly in sessions of two weeks.
The day before trial, the plaintiff's counsel sent a letter to the court requesting permission to withdraw as counsel. The judge issued an order stating that she would not rule on the withdrawal motion until she had heard from the plaintiff, but that trial would still start the next day. The order further stated that if the plaintiff failed to appear in court ready for trial either pro se or with counsel, the contempt action would be dismissed for lack of prosecution, a default judgment would enter against her on the defendants' counterclaim, and a hearing on the assessment of damages would immediately take place. The plaintiff did not appear the next day, although she informed her counsel's partner that she intended to retain new counsel.
On the morning of trial, the plaintiff's counsel did not appear in person but participated in a telephone colloquy with opposing counsel and the judge, requesting that he be allowed to withdraw. The judge allowed the withdrawal request, held a hearing on damages, and ordered a $13,600 judgment for the defendants and dismissal of the plaintiff's complaint for contempt. The plaintiff now timely appeals.
Notwithstanding the frustration of the judge's effort to manage her docket, we perceive no legal basis for the failure to observe the strictures imposed by Mass.R.Civ.P. 55(b)(2), as amended, 463 Mass. 1401 (2012), prior to the entry of a judgement of default. MPV, Inc. v. Department of Rev., 26 Mass. App. Ct. 932, 932-33. (1988) ("[T]he inherent power of a court to order judgment by default [does not] override[] the procedural requirements of the rule."). The less than one day notice for the hearing afforded to the plaintiff here clearly deviates from the rule.
The plaintiff was informed of the judge's order by her counsel at around 2:15 P.M. and trial was scheduled to start at 10 A.M. the next day.
In addition, "[i]nvoluntary dismissal is a drastic sanction which should be utilized only in extreme situations. As a minimal requirement, there must be convincing evidence of unreasonable conduct or delay. A judge should also give sufficient consideration to the prejudice that the movant would incur if the motion were denied, and whether there are more suitable, alternative penalties. Concern for the avoidance of a congested calendar must not come at the expense of justice. The law strongly favors a trial on the merits of a claim." Monahan v. Washburn, 400 Mass. 126, 128-29 (1987).
From the record, it is not apparent whether the plaintiff caused any unreasonable delay or, if so, whether the judge considered any suitable, alternative penalties. This case is not one that has laid dormant for a lengthy period; the plaintiff requested only one continuance, which went unopposed by the defendants. Furthermore, contrary to the judge's original order that the plaintiff would be allowed to give testimony by video conference, the judge then apparently ordered the plaintiff, who was in Canada, to appear in person on less than twenty-four hours' notice. The record indicates that on the day of trial, the judge waited approximately half an hour to see if the plaintiff would appear in person or perhaps contact the court. Contrast Anderson v. Sport Lounge, Inc., 27 Mass. App. Ct. 1208 (1989) (finding no abuse of discretion in dismissing an action where the judge "waited more than two hours for the plaintiff to arrive," "proceeded with that part of the trial which did not require the plaintiff's presence, and [] allowed the plaintiff's counsel time to try to reach the plaintiff").
It is unclear whether the plaintiff herself had been instructed, or knew, how to contact the court or whether those arrangements were intended to be made by counsel.
Accordingly, the default judgment and the order dismissing the plaintiff's complaint for contempt are vacated. The case is remanded to the Superior Court for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Grainger, Rubin & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 2, 2016.