OCEAN REAL ESTATE INVESTMENTS INC v. SACCO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, John Sacco, appeals from an order denying his motion, pursuant to Mass. R. Civ. P. 60 (b) (6), 365 Mass. 828 (1974), to vacate a default judgment entered against him in this construction dispute. As the motion judge acted within his discretion in concluding that the defendant did not show a meritorious defense, we affirm.

“A motion pursuant to rule 60 (b) (6) is addressed to the discretion of the judge.” Owens v. Mukendi, 448 Mass. 66, 72 (2006), quoting Parrell v. Keenan, 389 Mass. 809, 815 (1983). “It is settled, however, that, in order to obtain such relief pursuant to rule ․ 60 (b) ․ a party must show both a good reason to remove the default and also the existence of meritorious claims or defenses.” Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 806 (2002).

With respect to the plaintiff's claims other than the G. L. c. 93A claim, the defendant described no meritorious defense. Instead, he merely asserted, “The defendant, has viable defenses to the underlying action that he has been unwittingly precluded from presenting,” and, “Sacco stands ready and able to put forth a meritorious defense in the underlying matter.” “[M]ere conclusory statements that [a party] had a meritorious defense” are not adequate to meet a movant's burden. Johnny's Oil Co. v. Eldayha, 82 Mass. App. Ct. 705, 708 (2012). Accord Hsu v. Wilkins, 77 Mass. App. Ct. 184, 188 n.9 (2010).

Concerning the c. 93A claim, the defendant did not present a meritorious defense that he did not receive the c. 93A demand letter. The defendant established that he moved to Florida by December 1, 2009. The demand letter, however, was mailed to the defendant at the Thomas Park address in South Boston on October 30, 2009, only sixteen days after the defendant asked the plaintiff for more time to complete the construction project. The defendant's affidavit provided no hint of where he lived or conducted business on October 30, 2009, and the defendant implicitly admitted that the Thomas Park address had been his residence at one point by stating that he “did not reside [there] at the time this action was brought” in July 2010. Accordingly, we discern no abuse of discretion in the motion judge's decision to deny the defendant's motion to vacate the judgment for want of a meritorious defense.

The defendant suggests that he may have grounds to move to vacate the judgment as void pursuant to Mass. R. Civ. P. 60 (b) (4). “A default judgment is void if the defendant has not been properly served with process,” Dumas v. Tenacity Constr. Inc., 95 Mass. App. Ct. 111, 114 (2019), at least where the defendant did not have actual notice of the lawsuit. See Jones v. Boykan, 464 Mass. 285, 290 (2013). Once the defendant has rebutted the prima facie evidence of service, “the plaintiff must carry the ultimate burden of proving proper service.” Dumas, supra at 115. Here, however, the defendant moved under rule 60 (b) (6) and specifically stated that the judge “may consider whether a Rule 60(b)(6) moving party ‘has a meritorious claim or defense.’ ” Under such circumstances, it would not be proper for us to recharacterize the defendant's motion and assess it under different standards than those presented to the motion judge.⁵

Order denying motion to vacate judgment affirmed.

FOOTNOTES

5.   We do not foreclose the possibility that the defendant may move to vacate the judgment under rule 60 (b) (4).