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Ceruolo v. Garcia

Appeals Court of Massachusetts, Essex

September 7, 2017

DAVID CERUOLO
v.
MARTHA GARCIA & another.[1]

          Heard: June 5, 2017.

         Civil action commenced in the Superior Court Department on September 16, 2014.

         A special motion to dismiss was heard by Robert A. Cornetta, J., sitting by designation, and a motion to vacate default was considered by him.

          Kevin C. Cain for the defendants.

          Donald J. Hubbard for the plaintiff.

          Present: Sullivan, Henry, & Shin, JJ.

          SULLIVAN, J.

         The plaintiff, David Ceruolo (David) sued his ex-wife Lyllian Ceruolo (Lyllian), [2] and her mother, Martha Garcia (Garcia) for defamation and negligent and intentional infliction of emotional distress following the conclusion of a contentious divorce. The defendants were defaulted in the civil action, and moved unsuccessfully to remove the default. Lyllian and Garcia appeal from the entry of a final judgment after a hearing on assessment of damages, contending that the default should have been vacated. David cross-appealed regarding damages. We reverse the judgment and remand the case for further proceedings.

         Background.

         During a contentious divorce action, Lyllian and her mother made serious allegations regarding David's conduct. A Probate and Family Court judge found the allegations unproven and untrue.

         Following the entry of final judgment in the divorce case, David filed this suit against Lyllian and Garcia. The defendants, represented by counsel, filed a notice of appearance and a notice of intent to file a special motion to dismiss pursuant to G. L. c. 231, § 59H, the "anti-SLAPP" statute. Thereafter, various procedural anomalies occurred. Because the timing of subsequent events is of importance here, we set out the timeline in some detail.

         On November 25, 2014, [3] Lyllian and Garcia timely filed the special motion to dismiss. The judge considered both the pleadings and the affidavit on file, as required by the statute. See G. L. c. 231, § 59H ("the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based"). The pleadings focused on conduct leading up to and during the divorce. The affidavit of damages filed by David made additional allegations not found in the complaint, including a general statement that there was an ongoing course of defamatory conduct after the entry of the decree. On February 6, 2015, the judge allowed the motion as to those statements that occurred "during" the divorce action and up to the date of the decree, November 22, 2013. The motion was denied to the extent that David could make a showing that "the conduct complained of does not fall under petitioning activity protected under the statute." Thus, the judge left for another day what conduct fell outside the scope of the anti-SLAPP statute.

         Six days later, on February 12, 2015, the defendants served a motion for more definite statement pursuant to Mass.R.Civ.P. 12(e), 365 Mass. 754 (1974), in accordance with Superior Court Rule 9A (rule 9A). David timely served his opposition on February 24, 2015. A reply brief and opposition to the filing of the reply brief were exchanged, and the package was complete on or about March 8, 2015.[4] For reasons not apparent on the record, the defendants did not file the package within the ten-day time period set forth in rule 9A(b)(2). On March 24, 2015, David served a request for default pursuant to Mass.R.Civ.P. 55(a), 365 Mass. 822 (1974), which was docketed on March 25 and allowed by the clerk the following day. The entry of default was sent to David but not to the defendants.[5]

         Lyllian and Garcia, unaware that the default had entered, but having been served with the rule 55(a) request, filed their motion for a more definite statement (omitting the contested reply brief), pursuant to Mass.R.Civ.P. 12(e), on March 27, 2015. That motion was denied on April 3, 2015, "in light of" the earlier ruling on the anti-SLAPP motion. This ruling, perhaps unintentionally, left unanswered how David was to make the required showing that the complained of conduct "did not fall under petitioning activity."

         The denial of the defendants' motion for a more definite statement likewise was not received by defendants' counsel. David then filed a motion for assessment of damages and a motion for default judgment on April 21, 2015, which was served on defense counsel. Notably, although the motion was ...


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