Zazzara v. Townsend

1994 Mass. App. Div. 61, 1994 Mass. App. Div. LEXIS 26
CourtMassachusetts District Court, Appellate Division
DecidedMarch 28, 1994
StatusPublished
Cited by3 cases

This text of 1994 Mass. App. Div. 61 (Zazzara v. Townsend) 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
Zazzara v. Townsend, 1994 Mass. App. Div. 61, 1994 Mass. App. Div. LEXIS 26 (Mass. Ct. App. 1994).

Opinion

Sullivan, J.

The defendants appeal from the denial of two motions. The first motion is captioned “Motion To Compel the Removal or Partial Removal of This Action Against Them to the Superior Court Under G.L.c. 231, §104A; To Prohibit the Issuance of An Execution, Or, Alternatively, To Vacate the Finding and Judgment Against Them.” The second motion is a Motion for Relief from Judgment brought pursuant to Dist./Mun. Cts. R. Civ. R, Rule 60(b). We affirm the denial of both motions.

PROCEDURAL HISTORY

The unusual procedural history of this action began on October 11,1988 when the plaintiff filed a complaint against three persons in their capacities as trustees of the Sandcastle Associates Trust seeking damages for breach of contract, breach of warranty, negligence and violation of Chapter 93A The plaintiff also filed a Statement of Damages as required by Dist./Mun. Cts. Supp. R. Civ. R, Rule 102A The amount sought in the Statement of Damages was “less than $25,000.”

The Court called the case for trial two years later on November 8,1990. The defendants failed to appear and were defaulted. Nearly a month later on December 5,1990, the Court conducted an assessment of damages hearing pursuant to Dist./Mun. Cts. R. Civ. R, Rule 55. The defendants did not appear at this proceeding either. Default judgment was entered against the defendants on January 14,1991. The court assessed damages in the amount of $256,006 holding the defendants “individually, jointly and severally” liable. This award consisted of an assessment of actual damages in the amount of $125,000 which was doubled under the authority of Chapter 93A The trial judge also ordered the defendants to pay $6,006 in attorney’s fees and costs.

The defendants then filed a motion for relief from judgment on January 16,1991 seeking relief “from so much of the default judgment as [was] entered against them in this case in their individual capacities,” arguing that the plaintiff’s complaint was brought against them only in their capacities as trustees. After a hearing on January 25,1991, with all parties appearing before the court and represented by counsel, the trial judge issued an order, relieving the defendants from liability in their individual capacities, but specifically affirming the judgment against the trustees of the Sandcastle Associates Trust. The order was conditioned upon the payment of six thousand dollars to the plaintiff in attorney’s fees and costs. The defendant paid these costs within the two week deadline. The trial judge’s conditional order also allowed the plaintiff to amend his complaint nunc pro tunc “to demand... specific relief from the named defendants in their individual capacities....” Shortly thereafter, plaintiff filed his motion to amend and it was allowed on February 2,1991.

Upon the filing of the amended complaint, the defendants removed the case to [62]*62the Superior Court. G.L.c. 231, §104A That court remanded the case to the Boston Municipal Court within a few months. G.L.c. 231, §102C.

Approximately a year later on June 1,1992, the plaintiff filed a motion for separate and final judgment against the trustees only. A different judge, sitting in the motion session, allowed the motion on June 10,1992. On June 18,1992 the defendants filed a motion, purportedly invoking the authority of G.L.c. 231, §104A, to remove the action brought against them as trustees to Superior Court.

The defendants argued that their motion for removal was timely at this stage of the proceedings because the assessment of damages against them after default “was not a final judgment, but was, rather, only a finding or decision of the court.” The defendants argued that “[a] finding or decision by a District Court is not a final judgment unless or until it is docketed as such pursuant to Mass, [sic]2 R. Civ. R, Rules 58(a) and 79(a) with notice of entry sent under Mass, [sic] R. Civ. R, Rule 77(d) After a hearing, the defendants’ motion to compel removal was denied by the trial judge in his “Rulings on Motions,” dated October 28,1992.

On November 5, 1992, the defendants filed a motion for relief from judgment pursuant to Dist./Mun. Cts. R. Civ. R, Rule 60(b). In this motion the defendants claim that the default judgment against them was void insofar as the amount assessed exceeded the amount requested in the Statement of Damages thereby violating Dist./Mun. Cts. R. Civ. R, Rule 54 (6). The court also denied this motion. We address the denial of the defendants’ two motions.

I. MOTION TO COMPEL REMOVAL

The defendants first argue that their motion to compel removal under G.L.c. 231, §104A was improperly denied.3 They contend that the judge’s allowance of the plaintiff’s motion to amend his complaint nunc pro tunc, granted on January 29, 1991, had the effect of converting the cause of action to one involving “multiple claims against multiple parties” implicating the provisions of Dist./Mun. Cts. R. Civ. R, Rule 54(b). Rule 54(b) requires the trial judge to refrain from directing final judgment in a “multiple claims against multiple parties” circumstance until all claims are resolved against all parties absent “an express determination that there is no just reason for delay... .”4

The defendants argue that “[b]y virtue of the amendment to the plaintiff’s complaint, nunc pro tunc to October 11,1988, the assessment of damages against the defendant trustees was an adjudication by this Court “as to one or more but fewer [63]*63than all of the claims or parties, within the meaning of Mass. R. Civ. E, Rule 54(b).” As a consequence, they argue that a final judgment never entered against them until the motion judge, not the trial judge, granted the plaintiffs motion for separate and final judgment on June 19, 1992. As a corollary to this, the defendants press the argument that the trial court’s order of January 29,1991, relieving them of individual liability but imposing liability upon them as trustees, to which they assented, was not a final judgment.

We reject these arguments on two different grounds: 1.) there is no right to removal from a District Court or the Boston Municipal Court where the defendant has allowed a default judgment to enter, and 2.) the doctrine of judicial estoppel.

1. No right to removal after default judgment. The defendants’ motion to compel removal disregards the plain fact that they allowed a default judgment to be entered against them in January, 1991. The defendants’ claim of trial by jury in the Superior Court was waived when they allowed the entry of default judgment. InH. Sandberg & Sons, Inc. v. Clerk of the District Court of Northern Norfolk, 12 Mass. App. Ct. 686 (1981), the Appeals Court held that a plaintiff was not entitled to retransfer a case to the Superior Court following a dismissal in the District Court, reasoning that to do otherwise

would defeat the purpose of [Sec.] 102C by encouraging a practice under which counsel who are prepared to accept the risks of an adverse prima facie case against them could suffer judgments of dismissal or default in a District Court and unilaterally delay the presentation of their evidence until the time of trial before a judge or jury in the Superior Court. H. Sandberg & Sons, at 688.

Although the holding in Sandberg applied to a plaintiff whose case was dismissed in the District Court prior to an attempt to remove to Superior Court, by its own language the Sandberg

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Bluebook (online)
1994 Mass. App. Div. 61, 1994 Mass. App. Div. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zazzara-v-townsend-massdistctapp-1994.