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Dumas v. Tenacity Construction Inc.

Appeals Court of Massachusetts, Essex

April 3, 2019

GEORGE P. DUMAS, THIRD
v.
TENACITY CONSTRUCTION INCORPORATED.

          Heard: December 3, 2018.

         Civil action commenced in the Superior Court Department on September 26, 2014.

         A motion for relief from default judgment was heard by Joshua I. Wall, J.

          William P. McGovern, Jr., for the defendant.

          Beth R. Levenson for the plaintiff.

          Present: Sullivan, Massing, & Sacks, JJ.

          MASSING, J.

         When a 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.

         Background.

         1. The plaintiff's allegations.

         The 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 injury.

         2. Proceedings: default judgment.

         Dumas 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[1] at the time of service for Tenacity Construction Incorporated, 194 Newbury Street Apartment 7 Peabody, MA 01960."

         Tenacity 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, ...


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