WALSH SHEET METAL WORKS, INC. v. NASER, Mass. Dist. Ct. App., Judgment, Law, casemine.com

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Attorney(S)

Richard F. Kerr for the plaintiff. Joseph G. Abromovitz and Theodore Mankus for the defendants.

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Smart Summary

Factual and Procedural Background

This civil action in contract was initiated on December 10, 1980, by Walsh Sheet Metal Works, Inc. (plaintiff) against Robert E. Naser, Robert E. Swain, and Christie Construction Co., Inc. (defendants). The plaintiff alleged an agreement with the defendants for removal and replacement of a heating and circulating system in a building renovated by Christie as general contractor. The contract called for payment on a time and material basis, with $10,117.67 claimed as due for work performed. The complaint included counts in contract, quantum meruit, and account annexed, all seeking the same sum plus costs, interest, and attorney's fees.

The individual defendants answered and filed a cross claim against Christie for indemnification. Christie admitted performance of labor and supply of materials but contended the plaintiff agreed not to exceed $2,400. Christie denied the cross claim.

On June 10, 1981, the plaintiff served interrogatories on all defendants, including Christie, which Christie failed to answer. Consequently, on April 5, 1982, a default and default judgment were entered against Christie. An execution was issued on April 6, 1982. Christie then filed a motion on June 15, 1982, to set aside the default judgment, supported by an affidavit from its president explaining neglect due to ongoing litigation, multiple projects, dismissal of its attorney, and forgetfulness. Christie retained new counsel after the execution was served and sought to vacate the default judgment.

The trial court denied Christie's motion, finding the neglect inexcusable and noting Christie's failure to retain new counsel or take action in the case for nearly a year. Christie requested a report on the denial of its motion, which is the subject of this appeal.

Legal Issues Presented

Whether the defendant Christie Construction Co., Inc. was entitled to relief under Dist./Mun. Cts. R. Civ. P., Rule 60(b)(1) from a default judgment entered due to its failure to answer interrogatories.
Whether the trial court properly exercised its discretion in denying Christie's motion to set aside the default judgment based on excusable neglect.
Whether Christie's failure to answer interrogatories and subsequent neglect constituted excusable neglect under applicable legal standards.

Arguments of the Parties

Defendant Christie's Arguments

The failure to respond to interrogatories was due to forgetfulness by Frank Christiani, President of Christie, amid numerous construction projects and unrelated litigation.
Negotiations for settlement were ongoing, which led to neglect of discovery responses.
Christie contended that it was liable for a lesser amount than claimed by the plaintiff, disputing the sum owed but not liability itself.
Christie sought relief from the default judgment under Rule 60(b)(1) on grounds of excusable neglect.

Plaintiff's Arguments

Christie's neglect was inexcusable as it failed to retain new counsel after dismissal of its attorney and took no action for nearly a year.
Christie received the interrogatories and motion for default judgment but ignored them.
Simple forgetfulness or neglect does not justify relief from judgment under Rule 60(b)(1).
The issue of damages was waived by Christie as it was not properly raised in motions or arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kravetz v. Lipofsky, 294 Mass. 80, 83 (1936)	Discretion of trial judge in motions under Rule 60(b)(1)	Supported the principle that relief from judgment is largely discretionary with the trial court.
Berube v. McKesson Wine and Spirits Co., 7 Mass. App. Ct. 426 (1979)	Criteria for reviewing motions under Rule 60(b)(1)	Outlined six factors for evaluating excusable neglect, which the court applied to Christie's conduct.
Stewart Sec. Corp v. Guaranty Trust Co., 71 F.R.D. 32, 34 (Okla. 1976)	Neglect or disregard of duty does not justify relief from judgment	Supported denial of relief where neglect was due to careless disregard.
Smith's Sons Co. v. Lattimer Foundry Mach. Co., 19 F.R.D. 379, 383 (Pa. 1956)	Neglect insufficient to justify relief from judgment under Rule 60(b)(1)	Reinforced that simple neglect or forgetfulness is not excusable.
Rollins Environmental Services, Inc. v. Superior Court, 368 Mass. 174, 179-80 (1975)	Standard for excusable neglect under Rule 60(b)(1)	Applied to conclude that Christie's neglect was inexcusable.

Court's Reasoning and Analysis

The court analyzed the defendant Christie's motion under Dist./Mun. Cts. R. Civ. P., Rule 60(b)(1), which allows relief from judgment for mistake, inadvertence, surprise, or excusable neglect. The court relied on established criteria from Berube to evaluate whether Christie's neglect was excusable.

The court found Christie did not act promptly after judgment; nearly two months passed and only the threat of sheriff’s execution prompted action. Although Christie admitted liability, it disputed the amount owed. The court emphasized the neglect stemmed from a consciously chosen course of conduct: dismissal of counsel, failure to retain new counsel, and inaction for almost a year.

The court rejected Christie's claim of forgetfulness, holding that a party must take legal steps to protect its interests and that mere neglect or disregard of duty does not justify relief. The record showed Christie received discovery requests and notices but failed to respond or act.

The court also noted Christie waived the issue of damages by failing to raise it properly. Balancing the factors, the court found no error in denying the motion to vacate the default judgment.

Holding and Implications

The court affirmed the denial of the defendant Christie's motion to set aside the default judgment.

The direct effect is that the default judgment against Christie remains in force, and Christie is bound by that judgment. No new precedent was established; the decision reinforces the principle that neglect due to a deliberate failure to act or simple forgetfulness does not constitute excusable neglect warranting relief under Rule 60(b)(1).

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Walsh Sheet Metal Works, Inc. vs. Robert E. Naser and others. Robert E. Swain and Christie Construction Co., Inc.

Contract, For removal and replacement of heating system. Practice, Civil, Failure to respond to interrogatories; Default judgment; Motion to set aside default judgment; Dist./Mun. Cts. R. Civ. P., Rule 60 (b) (1).

Black, J.

This is a civil action in contract brought on December 10, 1980, by the plaintiff, Walsh Sheet Metal Works, Inc., against the defendants, Robert E. Naser, Robert E. Swain and Christie Construction Co., Inc., alleging that the defendants had entered into an agreement with the plaintiff calling for removal of a heating and circulating system and installation of a new heating and circulation system in a building undergoing renovation by the defendant, Christie Construction Co, Inc., (hereafter referred to as "Christie") as a general contractor. The plaintiff further alleged that the agreement called for payment on a time and material basis and that the sum of $10,117.67 was due and payable for work performed by the plaintiff in accordance with the said agreement. A second count in quantum meruit was also set forth in this complaint in which the plaintiff also sought the sum of $10,117.67 in damages, plus costs, interest and reasonable attorney's fees. The complaint also contained a third count which sought recovery under an account annexed in the amount of $10,117.67.

The individual defendants answered the complaint and filed a cross claim against Christie for indemnification of any amounts for which they might be held liable. Christie filed an answer admitting that the plaintiff had performed the labor and supplied the materials, but contended that the plaintiff had agreed not to exceed the sum of $2,400.00. Christie denied the allegations in the crossclaim.

On June 10, 1981, the plaintiff filed interrogatories to each of the defendants, including Christie, which Christie never answered and on April 5, 1982, a default and default judgment were entered against Christie on account of its failure to answer the plaintiff's interrogatories. An execution was issued in the amount of $11,531.04 on April 6, 1982. On June 15, 1982, the defendant, Christie, filed a motion for an order setting aside the default judgment. The motion was supported by an affidavit of Frank Christiani, President of Christie, in which he stated that following commencement of the lawsuit there had been negotiations between Christie's attorney and the other defendants with a view towards settling the case and that because of the efforts being made towards settlement the interrogatories were "simply neglected". The affidavit further stated that Christie had been involved in numerous construction projects and other unrelated litigation which had consumed all of the time of the affiant. Additionally, the affidavit noted that Christie's attorney had been dismissed and the affiant stated that he "simply forgot about the interrogatories due to my other problems". After being served with the execution, Christie retained new counsel and sought to vacate the default judgment.

The Motion to Set Aside the Default Judgment was denied on the grounds that the default judgment had resulted from the defendant Christie's neglect, which the judge found to be inexcusable, noting that following the discharge of its attorney Christie did nothing to retain new counsel with respect to this case and other pending matters. The court also noted that the defendant, Christie, had done nothing with respect to the litigation for nearly a year. The defendant, Christie, duly requested a report on the denial of its motion.

Clearly Dist./Mun. Cts. R. Civ. P., Rule 60(b)(1) affords a party relief from the effect of an otherwise final judgment for reasons of "mistake, inadvertance, surprise or excusable neglect". A petition on motion filed under this rule is addressed largely, but not exclusively, to the discretion of the trial judge [ Kravetz v. Lipofsky, 294 Mass. 80, 83 (1936)]. The Appeals Court in Berube v. McKesson Wine and Spirits Co., 7 Mass. App. Ct. 426 (1979) established the following criteria for reviewing motions under rule 60(b) (1):

(1) Whether the offending party has acted promptly after entry of judgment to assert his claim for relief therefore;

(2) Whether there is a showing that the claim sought to be reviewed has merit;

(3) Whether the neglectful conduct occurs before rather than during trial;

(4) Whether the neglect was the product of a consciously chosen course of conduct on the part of counsel;

(5) Whether prejudice has resulted to the other party; and,

(6) Whether the error is chargeable to the party's legal representative rather than the party himself.

Obviously the application of these factors contemplates a balancing of interests. In the instant case, the defendant, Christie, did not act promptly after judgment was entered against it. Nearly two months elapsed and it was only the fact that the Sheriff was literally knocking at the door that spurred the defendant into action. Secondly, the defendant has admitted liability but asserts that it is in an amount less than that claimed by the plaintiff. More important, however, the neglect in this case is directly attributable to a deliberately chosen course of action by the defendant, Christie, namely discharging its attorney during the course of litigation, failing to retain new counsel and doing absolutely nothing in relation to the case for almost a year. There is nothing to suggest that the defendant, Christie, did not receive the plaintiff's interrogatories and the plaintiff's requests for production of documents filed on June 10, 1981, and November 3, 1981, respectively, nor is there any allegation by the defendant, Christie, that it did not receive timely notice of the plaintiff's Motion for Default Judgment. The only conclusion that can be drawn from the record is that the defendant, Christie, has demonstrated at the very minimum a careless disregard for legal process and apparently now seeks relief from the folly of its ways.

In its own behalf, the defendant, Christie, asserts that its failure to answer the interrogatories was the result of forgetfulness on the part of its President, the affiant, Frank Christiani. Though understandable, such a reason is not cognizable with Dist./Mun. Cts. R. Civ. P., Rule 60(b)(1). A party is under a duty to take legal steps to protect its interests, and a simple disregard or neglect of such duty does not ordinarily justify relief from judgment [ Stewart Sec. Corp v. Guaranty Trust Co., 71 F.R.D. 32, 34 (Okla. 1976); Smith's Sons Co. v. Lattimer Foundry Mach. Co., 19 F.R.D. 379, 383 (Pa. 1956); Rollins Environmental Services, Inc. v. Superior Court, 368 Mass. 174, 179-80 (1975)]. Consequently, there is nothing to tip the balance in favor of the defendant, Christie, and we find no error in the denial of the defendant's Motion to Vacate Judgment.

Parenthetically, we might note that since the defendant, Christie, disputed only the amount of its liability, the question of damages could properly have been the subject of an assessment of damages hearing. This matter was not addressed in its Motion To Set Aside The Default Judgment nor in its brief or oral argument. Therefore, the issue is deemed to have been waived [Dist./Mun. Cts. R. Civ. P., Rule 64 (f)].

There being no error, the report is dismissed.

WALSH SHEET METAL WORKS, INC. v. NASER