Continental Data Corp. v. Old Colony Group Leasing, Inc.

1993 Mass. App. Div. 44, 1993 Mass. App. Div. LEXIS 17
CourtMassachusetts District Court, Appellate Division
DecidedMarch 8, 1993
StatusPublished
Cited by3 cases

This text of 1993 Mass. App. Div. 44 (Continental Data Corp. v. Old Colony Group Leasing, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Continental Data Corp. v. Old Colony Group Leasing, Inc., 1993 Mass. App. Div. 44, 1993 Mass. App. Div. LEXIS 17 (Mass. Ct. App. 1993).

Opinion

Furnari, J.

This is an action in contract to recover the purchase price of computer equipment allegedly sold to defendant Old Colony Group Leasing, Inc. At issue on this appeal is the propriety of the trial court’s denial of the defendant’s motion to vacate the default entered against it. No default judgment has been entered in this case, and we review the trial court’s report pursuant to Dist./Mun. Cts. R. Civ. P., Rule 64(d).

The relevant procedural chronology is as follows: On September 20, 1991, the plaintiff filed a complaintfor breach of contract to recover damages in the amount of $55,502.382 plus “interest from the date of demand, costs, reasonable attorney’s fees and such other relief as this court deems appropriate.” The plaintiff also obtained a Dist./Mun. Cts. R. Civ. P., Rule 4.1 attachment by trustee process of $6,000.00 of the defendant’s funds held by defendant-trustee, Cambridge Savings Bank.

The summons and complaint were served on the defendant on September23,1991. Just prior to the October 14,1991 deadline for filing an answer, the defendant retained legal counsel who immediately sought and obtained an extension from the plaintiff.

Counsel for both parties thereafter discussed the case on several occasions in November and December, 1991. Although defendant’s counsel expressed his intention of defending the suit, he did notfile an answer prior to the expiration of the agreed extension. On December 12,1991, the plaintiff filed a Dist./Mun. Cts. R. Civ. P., Rule 55 (a) request for a default. Notice was given to the defendant, but not to defendant’s counsel.

Upon learning of the default from his client, defendant’s counsel immediately contacted plaintiff’s attorney, provided a copy of the defendant’s answer and requested plaintiff s cooperation in removing the default on the grounds that defendant’s counsel had been ill and under medication prior to and at the time of default entry. Plaintiff’s counsel refused to assent to any removal of the default.

Eight days later, on December 20, 1991, counsel filed defendant’s answer and counterclaim and a “Motion to Set Aside Default Judgment. MRCP 55A and 60B.” Contrary to the motion’s references to a judgment and to Rule 60(b), no default judgment had been requested or entered. The trial court allowed the defendant’s motion, after hearing, “subject to posting bond in the amount of $42,000.00 within twenty (20) days.”

The defendant subsequently determined that it was incapable of posting a bond in [45]*45the required amountwithin the limited 20 day period ordered by die court. On January 9.1992, prior to the expiration of the twenty days, the defendant filed a “Motion to Set-Aside Default and Reconsider Prior Order and For Other Relief.” As grounds therefor, the defendant asserted, inter alia, that it was a “practical impossibility” for the defendant to pay the $42,000.00 bond amount plus premium in the tíme required; that as its earlier motion incorrectly referenced a default judgment which had not been entered, its present request for relief should be considered under the “good cause” standard of Dist./Mun. Cts. R. Civ. P., Rule 55(c); and that the defendant had a meritorious defense to the plaintiffs claims as outlined in its answer and counterclaim.

In support of its motion, the defendant submitted the affidavit of its manager, Joseph G. Bonanno, who set forth a factually detailed account of the three contracts which constituted the parties’ agreement for the defendant’s purchase of IBM automated teller machines and computer software from the plaintiff for installation at US Trust Company branches, and of the plaintiff’s numerous, material breaches of such contracts. Bonanno averred that the plaintiff’s repeated failures to make timely deliveries, its tenders of both non-conforming and defective equipment, its inability to supply useable software and its refusal to remedy or replace incorrect shipments ultimately lead not only to the defendant’s direct purchase of some equipment from and payment to IBM, but also to its procurement from third parties of necessary software covered by the contract. Bonanno further averred that the plaintiff’s conduct so seriously impaired the defendant’s ability to perform its contractual obligations to US Trust that it ultimately lost its million dollar contract with that customer as well as substantial revenue from related business.

It was agreed by counsel that the defendant’s motion for reconsideration would be heard and argued on February 21,1992. On February 13,1992, prior to such hearing, the plaintiff filed and served a Motion for Assessment of Damages and an Affidavit of Counsel for Attorney’s Fees, which the plaintiff also marked for hearing on February 21.1992. The trial court clerk neither placed the assessment motion on a hearing list, nor issued notice of the hearing to the defendant as required by Dist./Mun. Cts. Supp. R. Civ. R, Rule 106C, but instead entered a second default against the defendant.

At the February 21,1992 hearing before a second judge (as distinguished from the judge who conditionally allowed the defendant’s Rule 60 motion in December 1991), the defendant responded as the “moving party,” and arguments were focused primarily on default removal and reconsideration of the prior conditional order. The court did not indicate that it was conducting an assessment hearing, and no testimony or other evidence of damages was introduced.

The trial court subsequently denied the defendant’s motion to set aside the default, and allowed the plaintiff’s assessment motion for the full amount of the $57,002.38 damages and attorney’s fees sought. The defendant thereafter requested this appeal.

1. Motions to vacate defaults and default judgments pursuant, respectively, to Rule 60 (b) and Rule 55 (c) of the Dist./Mun. Cts. R. Civ. P., are addressed to the broad, but not unlimited, discretion of the trial judge. See Riley v. Davison Construc. Co., 381 Mass. 432, 441 (1980); Bernard v. United Brands Co., 27 Mass. App. Ct. 415, 423 (1989); The sound exercise of such discretion necessarily entails a correct application of the relevant factors to the motion at issue, Scannell v. Ed. Ferreirinha & Irmao, Lda., 23 Mass. App. Ct. 465, 469-470 (1987); a conscientious, equitable balancing of the competing interests of the parties and the administrative concerns of the court; and an ultimate disposition of the motion consistent with the procedural requirements and underlying policies of the rules. MPV, Inc. v. Department of Revenue, 26 Mass. App. Ct. 932, 933 (1988).

2. The defendant’s second motion to set aside the default should have been allowed. As no default judgment had been entered, the defendant’s motion was governed not by the “excusable neglect” measure for Rule 60 (b) relief, Old Colony Bk. & Tr. Co. of Middlesex Cty. v. Tacey Transp. Corp., 10 Mass. App. Ct. 825, 826 (1980), but by the less [46]*46stringent “good cause” standard of Rule 55(c). MPV, Inc. v. Department of Revenue, supra at 932-933. The defendant properly directed the court’s attention to the controlling Rule 55(c) standard and to its prior mistake in seeking Rule 60(b) relief. The defendant also corrected its earlier omission by supplementing its reconsideration motion with an appropriate affidavit. Mullen Lumber Co. v. F.P. Assoc., Inc., 11 Mass. App. Ct. 1018, 1019 (1979). See generally, as to Rule 55(c) and 60(b) affidavit requirements, Bissanti Design/Build Group v.

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Bluebook (online)
1993 Mass. App. Div. 44, 1993 Mass. App. Div. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/continental-data-corp-v-old-colony-group-leasing-inc-massdistctapp-1993.