Opinion
21-P-612
12-16-2022
Gertha PIERRE & another v. Kathryn A. WHEATON & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants, Kathryn Wheaton and Seafan Realty Trust, LLC, appeal from the order of a Superior Court judge entered on March 17, 2021, denying their "Emergency Motion To Dissolve Attachments, Set Aside Default Judgment, and Dismiss." They argue that the default judgment against them should have been vacated as void for failure of service of process and, even if not void, should have been set aside for excusable neglect. See Mass. R. Civ. P. 55 (c), 365 Mass. 822 (1974); Mass R. Civ. P. 60 (b) (1), (4), 365 Mass. 828 (1974). We affirm.
Background. The plaintiffs, Gertha Pierre and Labelle, LLC, brought an action alleging breach of contract to recover $329,999.52 from the defendants, claiming that the defendants entered into an oral agreement to borrow the money to help finance the purchase from the plaintiffs of residential property located at 67 Lawrence Avenue in Boston. On November 8, 2019, the plaintiffs served the complaint and summons upon Wheaton and Seafan by hand at 258 Harvard Street, #371, Brookline; service was accepted by a person named Hahn Li. The plaintiff filed an amended complaint four days later to correct the names of the defendants. The plaintiffs did not cause the amended complaint to be formally served.
The original complaint named "Katheryn .A Whaton" as the defendant in the caption, but spelled her surname correctly in the body of the complaint. The complaint incorrectly named the trust entity as "Sunae Realty Trust, LLC" in both the caption and the text. Sunae Realty Trust is one of at least three entities, including defendant Seafan Realty Trust, LLC, of which Wheaton is the resident agent and manager or president. All three entities share the same registered address: 258 Harvard Street, #371, Brookline. In fact, Wheaton signed the purchase and sale agreement on behalf of Sunae Realty Trust, but took out a loan and mortgaged the property in the name of Seafan Realty Trust. The defendants’ correct names appear in the returns of service filed by the constable.
It is uncontested that shortly after the plaintiffs initiated this action, Wheaton was present in the Superior Court for the scheduling and hearing of attachment motions initiated by the plaintiffs. It is also uncontested that she was accompanied by counsel, although she insists that counsel was representing her on a separate matter. In an order entered on December 2, 2019, less than one month after the filing and service of the complaint, a Superior Court judge allowed the plaintiffs’ motion for writ of attachment "[a]fter hearing attended by counsel for both sides, for good cause shown." The defendants did not otherwise respond to the complaint and, three months after it had been filed, the clerk, acting on the plaintiff's request, entered a default order pursuant to Mass. R. Civ. P. 55 (a), 365 Mass. 822 (1974), on February 4, 2020.
A hearing for assessment of damages was scheduled for April 2020 but cancelled because of the COVID-19 state of emergency. The court ultimately scheduled the hearing for January 12, 2021. Wheaton contacted the session clerk an hour before the hearing to request a continuance, claiming inadequate notice. A second Superior Court judge denied Wheaton's request for continuance, finding in an order dated January 21, 2021, that the defendants "had proper and adequate notice" of the hearing. The second judge ordered the entry of default judgment in the amount requested by the plaintiffs, noting that "[d]espite [having] full knowledge of the claims against them since service of the original complaint in November, 2019, [d]efendants have never filed a responsive pleading," and also finding that the defendants "were represented for purposes of the first attachment proceeding, in November and December, 2019, and made oral, though not written, representations to the court in connection with that hearing."
The judge explained, "I further find there was no legitimate basis for continuance of the hearing at the last minute on the morning thereof, and I do not credit Defendant Wheaton's telephone and email representations to the session clerk to the contrary."
The judgment entered on January 29, 2021. The same day defendants’ counsel filed an appearance for the first time, together with an "Emergency Motion To Remove Default." The defendants alleged that they had "acted expeditiously in seeking relief from the Court's Default Order" and that, accordingly, they had shown good cause for its removal. The second judge promptly denied the defendants’ motion in an order dated February 2, 2021, stating:
"Following review, motion DENIED. There is no emergency. The defendant was represented by counsel throughout the attachment proceeding in this case and thereafter chose not to file responsive pleadings. The default was outstanding for a full year during which time another hearing was held on attachment. Throughout, defendants have appropriate service and notice of any court proceeding. No good cause can be shown."
About a month later, the defendants filed a second "emergency" motion to set aside the default, dissolve attachments, and dismiss the complaint, accompanied by the affidavit of defendant Wheaton. In addition to arguing good cause, they alleged for the first time that the judgment was void for failure of service of process. Again, the second judge denied relief, giving three reasons: "(1) The court ruled on a very similar motion on 2/2/21"; "(2) Multiple judges of this court have held multiple hearings on these issues; and (3) Based on the record of all proceedings, the court does not credit defendant Wheaton's testimony." The order denying the motion was entered on March 17, 2021, and the defendants timely filed a notice of appeal therefrom.
Discussion. 1. Sufficiency of service. The defendants claim that they are entitled to relief from the judgment as void. See 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 (2015) ; Wang v. Niakaros, 67 Mass. App. Ct. 166, 169, 172 (2006) ; Fleishman v. Stone, 57 Mass. App. Ct. 916, 916 (2003). "In general, the plaintiff bears the burden of establishing the validity of service of process." Dumas v. Tenacity Constr. Inc., 95 Mass. App. Ct. 111, 114 (2019). When considering such a challenge based on a plaintiff's failure to effect service of process, "the judge is bound to accept the defendant's uncontroverted affidavits as true." Id. at 111. Although most rule 60 (b) motions are reviewed for abuse of discretion, we review the denial of a motion for relief from a void judgment de novo. Id. at 114.
The judgment is not void. The plaintiffs submitted prima facie evidence of service, and the defendants never rebutted it. See Dumas, 95 Mass. App. Ct. at 115. When the defendants finally raised the issue of service in their second emergency motion, they asserted that they were never served with the amended complaint. This assertion was supported by Wheaton's affidavit, in which she stated that she had "never been summonsed and served with any complaint filed by the Plaintiffs that named [her] or Seafan Realty Trust, LLC as defendants." Her carefully worded affidavit, though uncontroverted, did not disavow service of the original complaint. Indeed, the defendants conceded in their motion that "[t]he unknown ‘Katheryn .A Whaton’ and the legal entity Sunae Realty Trust, LLC ... were/are the only defendants summonsed and served with a complaint asserting claims against them."
Even this assertion ignores that "Katheryn A. Wheaton" was named in the body of the original complaint.
We reject the defendants’ technical claim that the default judgment is void simply because the plaintiffs misnamed them in the original complaint. See Henderson v. D'Annolfo, 15 Mass. App. Ct. 413, 428 (1983) ("Where there are no allegations of unfair surprise or prejudice, we are not inclined to dismiss an action because of a possible technical defect in the pleading"). Massachusetts law does not allow defendants to escape their obligations based on misnomer. See Connelly v. Dionne Trucking, Inc., 236 Mass. 460, 462–463 (1920) ; Hennessey v. The Stop & Shop Supermarket Co., 65 Mass. App. Ct. 88, 91 (2005). Wheaton cannot claim unfair surprise based on a typographical error in the spelling of her name in the caption. As to Seafan, the original complaint erroneously named Sunae, an entity also controlled by Wheaton, with the same registered address as Seafan. See note 3, supra (noting that Wheaton signed the purchase and sale agreement on behalf of Sunae, but used Seafan to finance the purchase). Notwithstanding the misnomer, the original complaint identified the trust defendant in a manner that made it clear to Wheaton that Seafan rather than Sunae was the entity the plaintiffs meant to sue. See Hennessey, supra at 92. To "dismiss the case ‘would be unfair to the plaintiff and would allow the defendant to avoid its rightful obligation through a technical error on the part of plaintiff's counsel, in a situation where it has had notice of the plaintiff's claim from the outset." Id. at 91, quoting Godfrey v. Eastern Gas & Fuel Assocs., 71 F. Supp. 175, 178 (D. Mass. 1947). Because the amended complaint did not assert a new claim or substitute a new defendant, formal service of the amended complaint was not required. Contrast Wang, 67 Mass. App. Ct. at 170.
2. Excusable neglect. " Rule 60 (b) (1) of the Massachusetts Rules of Civil Procedure authorizes the court to grant relief from judgment in cases of ‘mistake, inadvertence, surprise or excusable neglect.’ " Christian Book Distribs., Inc. v. Wallace, 53 Mass. App. Ct. 905, 906 (2001), quoting Mass. R. Civ. P. 60 (b) (1). Where a default judgment is issued, "[t]he burden to establish one of these conditions is on the defendant." Hermanson v. Szafarowicz, 457 Mass. 39, 46 (2010). The factors set forth in Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 430-431 (1979), are generally considered in determining whether the defendant has met that burden. See Hermanson, supra at 46-47. "A motion for relief under rule 60 (b) is directed to the sound discretion of the motion judge, and we review the judge's ruling for abuse of discretion." Nortek, Inc. v. Liberty Mut. Ins. Co., 65 Mass. App. Ct. 764, 775 (2006).
The second judge did not abuse her discretion in concluding that Wheaton did not act diligently in responding to the plaintiffs’ complaint, and in disbelieving her assertions to the contrary. The procedural history, discussed in detail above, demonstrates that Wheaton had actual notice of the complaint, participated in the attachment hearings, and received notice of the damages assessment hearing, yet she did not answer the complaint, move to dismiss for insufficient service, or take any other action until the default judgment entered. Wheaton asserted in her affidavit that she "mistakenly believed that [by attending the attachment hearing she] had sufficiently and formally answered whatever claims may have been asserted." Even if the judge credited Wheaton's affidavit, which the judge did not, Wheaton's mistaken belief would not amount to excusable neglect under Mass. R. Civ. P. 60 (b), which applies only to circumstances that are unique or extraordinary; "relief is not extended ‘to cover any kind of garden-variety oversight.’ " Feltch v. General Rental Co., 383 Mass. 603, 614 (1981), quoting Goldstein v. Barron, 382 Mass. 181, 186 (1980). Finally, even if "certain of the Berube factors may provide limited support for the plaintiff's argument, an appellate court will not reverse a motion judge's decision ‘except upon a showing of a clear abuse of discretion.’ " McIsaac v. Cedergren, 54 Mass. App. Ct. 607, 612 (2002), quoting Tai v. Boston, 45 Mass. App. Ct. 220, 224 (1998). As the defendants have failed to make such a showing, we affirm.
Order entered March 17, 2021, denying motion to dissolve attachments, set aside default judgment, and dismiss affirmed.