GEORGE P. DUMAS, THIRD
TENACITY CONSTRUCTION INCORPORATED.
Heard: December 3, 2018.
action commenced in the Superior Court Department on
September 26, 2014.
motion for relief from default judgment was heard by Joshua
I. Wall, J.
William P. McGovern, Jr., for the defendant.
R. Levenson for the plaintiff.
Present: Sullivan, Massing, & Sacks, JJ.
defendant files a motion for relief from a default judgment
under Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974),
alleging that the judgment is void because of improper
service of process, the judge is bound to accept the
defendant's uncontroverted affidavits as true. In this
appeal, the defendant, Tenacity Construction Incorporated
(Tenacity), asserts that the sheriff's return of service
did not controvert the affidavits Tenacity offered in support
of its motion, and that the judge therefore lacked the
discretion to deny the motion solely because he disbelieved
the affidavits. Because we conclude that the motion should
not have been denied on the affidavits and that further
proceedings are necessary to determine whether relief from
the default judgment is warranted, we vacate the order
denying the motion and remand for an evidentiary hearing.
The plaintiff's allegations.
plaintiff, George P. Dumas, III, alleged that on January 13,
2014, he was working for Dumas Roofing Company, Inc., on a
construction project in Northborough. Tenacity was the
general contractor. While Dumas was climbing a ladder,
another subcontractor's vehicle struck the building,
causing shingles to fall from the roof. The shingles knocked
Dumas off the ladder and onto the ground, causing serious
Proceedings: default judgment.
filed a complaint in the Superior Court on September 26,
2014, alleging that Tenacity was negligent in its oversight
and supervision of the project. On November 24, 2014, Deputy
Sheriff Kevin Monahan filed a return of service stating that
on November 4, 2014, he served the summons and complaint
"by delivering in hand to Mark Foley, person in
charge at the time of service for Tenacity
Construction Incorporated, 194 Newbury Street Apartment 7
Peabody, MA 01960."
did not respond to the complaint. On December 24, 2014, at
Dumas's request, the clerk entered a default. See Mass.
R. Civ. P. 55 (a), 365 Mass. 822 (1974). Dumas then filed
motions for a hearing to assess damages and for the entry of
a default judgment under Mass. R. Civ. P. 55 (b) (2), as
amended, 463 Mass. 1401 (2012). Following a number of
continuances, the judge held a hearing on March 3, 2016 --
Tenacity did not participate -- and on May 17, 2016, issued a
memorandum and order assessing Dumas's damages at $3,
256, 300. A default judgment entered on July 19, ...