SUNRISE EQUIPMENT & EXCAVATION, INC. v. CONSTRUCTION MANAGEMENT & BUILDERS, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Sunrise Equipment & Excavation, Inc. (Sunrise), brought this action to recover damages from the defendant, Construction Management & Builders, Inc. (CMB), after a dispute arose regarding whether the parties had a contract. Following a jury verdict in Sunrise's favor, CMB appeals. CMB's primary argument is that, during discovery, a motion judge abused his discretion in removing a default that had entered in CMB's favor. CMB also argues that, once the matter proceeded to trial, the trial judge erred in denying CMB's motions in limine, for judgment notwithstanding the verdict, and for a new trial. We affirm.
Background. In March 2014, CMB issued an invitation to bid for a construction project at an automobile dealership in Norwell. Joseph Kerrissey submitted a bid and several subsequent pricing revisions, which he signed as “Manager,” to perform excavation and site work on the project. The bid and subsequent pricing revisions were on letterhead stating “Sunrise Equipment, Inc.,”2 and Kerrissey corresponded with CMB using an e-mail address that had the domain of “jkerrisseyllc.com.” On June 4, 2014, CMB sent an authorization to proceed to the jkerrisseyllc.com e-mail address. Shortly thereafter, after some preliminary work was completed, a dispute arose regarding whether the parties had a contract.
On July 18, 2014, Sunrise brought this action alleging that Kerrissey submitted the bid and pricing revisions on behalf of Sunrise and that CMB authorized Sunrise to perform all of the work on which Sunrise bid. Sunrise further alleged that after it performed some preliminary work, CMB (1) informed Sunrise that its services were no longer needed, (2) instructed Sunrise to remove its equipment from the project site, and (3) refused to pay Sunrise for the work that had been completed. Asserting breach of contract, violation of G. L. c. 93A, and other claims, Sunrise sought damages for its uncompensated work plus lost profits. CMB answered that it never had a contract with Sunrise. CMB took the position that it authorized J. Kerrissey, LLC (Kerrissey LLC), to perform a limited scope of work on a time and materials basis and that it offered to pay Kerrissey LLC for that work upon presentation of lien wavers and certification that Kerrissey LLC's employees had been paid.
The matter proceeded to discovery, during which Sunrise initially failed to respond to CMB's interrogatories. On October 23, 2015, CMB served a final request for answers pursuant to Mass. R. Civ. P. 33 (a) (3), as appearing in 436 Mass. 1401 (2002). After CMB did not receive Sunrise's answers or objections by the end of the day on December 2, 2015, which was forty days from October 23, 2015, CMB filed a written application for entry of final judgment on December 3, 2015. See Mass. R. Civ. P. 33 (a) (4), as appearing in 436 Mass. 1401 (2002) (“In the event that answers or objections have not been received and after the expiration of [forty] days from the date of service of the final request for answers ․ the interrogating party may file a written application for entry of final judgment for relief or dismissal”). After CMB's application was allowed, Sunrise filed a motion to strike CMB's application and to remove the default, which was allowed on February 1, 2016.
Over one year later, the matter was tried to a jury. At the close of Sunrise's case, CMB moved for a directed verdict, which was denied.3 On May 25, 2017, the jury found in Sunrise's favor and awarded Sunrise $400,000 in damages. During the ensuing months, the trial judge ruled on various posttrial motions and denied CMB's motions for judgment notwithstanding the verdict and for a new trial. On July 11, 2018, a judgment entered, which in part granted Sunrise leave to file a motion for attorney's fees pursuant to G. L. c. 93A. On July 16, 2018, Sunrise filed its motion for attorney's fees, which was allowed on August 28, 2018.
Discussion. a. CMB's notice of appeal. As a preliminary matter, Sunrise argues that CMB's appeal is not properly before the court. Sunrise relies on Mass. R. A. P. 4 (a) (3), as appearing in 481 Mass. 1607 (2019), which provides that a notice of appeal filed before the disposition of certain timely motions -- including a motion to alter or amend a judgment if served within ten days after entry of the judgment -- “shall have no effect.” Sunrise argues that its motion for attorney's fees was, in essence, a motion to alter or amend the judgment and that it served the motion within ten days after entry of the judgment. Sunrise argues that CMB's notice of appeal, which was filed on August 9, 2018 -- while Sunrise's motion for attorney's fees was still pending -- thus had no effect.
We need not reach the issue whether Sunrise's motion for attorney's fees was a motion to alter or amend the judgment. Even if the motion were a motion to alter or amend the judgment, we would nevertheless decide the appeal. On the compressed time frame here, where a judgment entered on July 11, 2018, Sunrise filed its motion for attorney's fees on July 16, 2018, CMB filed its notice of appeal on August 9, 2018, and Sunrise's motion for attorney's fees was allowed later that same month on August 28, 2018, the concerns underlying rule 4 (a) (3) are not implicated. See Roch v. Mollica, 481 Mass. 164, 165 n.2 (2019) (involving similarly compressed time frame). We thus address the issues briefed and argued.
b. The default. As noted above, CMB's primary argument is that, during discovery, the motion judge abused his discretion in removing a default that had entered in CMB's favor. Defaults may be removed for good cause. See Mass. R. Civ. P. 55 (c), 365 Mass. 822 (1974) (“For good cause shown the court may set aside an entry of default and, if a judgment has been entered, may likewise set it aside in accordance with Rule 60 [b]”). See also Institution for Sav. in Newburyport & its Vicinity v. Langis, 92 Mass. App. Ct. 815, 819-822 (2018) (distinguishing between entry of default and entry of default judgment and holding that good cause standard governs prior to entry of default judgment, whereas excusable neglect standard governs after entry of default judgment).4 Good cause is a less stringent standard than excusable neglect. Ceruolo v. Garcia, 92 Mass. App. Ct. 185, 188 (2017). While there is no mechanical formula for determining whether good cause exists, a motion judge may consider a variety of factors, including whether the default was willful, whether the adversary will be prejudiced, and the timing of the motion. See id. at 189. During the early stages of a case, a motion judge should resolve doubts in favor of the party seeking relief from entry of the default. See id. We review the motion judge's decision to remove the default for abuse of discretion. See id. at 188.
We discern no abuse of discretion in the motion judge's decision. Sunrise argued that it had been in contact with CMB about the interrogatories in November. Sunrise further argued that its answers, which were mailed on November 30, 2015, and CMB's application, which was filed on December 3, 2015, must have “crossed in the mail.” For its part, CMB conceded that it received Sunrise's answers on December 4, 2015, a mere two days late. In these circumstances, the judge could have concluded that the default was not willful and that there was no prejudice to CMB from the very short delay in receiving Sunrise's answers, especially where the matter was not tried to a jury until over one year later. In short, there was ample good cause to remove the default, and thus no abuse of the motion judge's discretion.
c. CMB's motion in limine. CMB also argues that the trial judge erred in denying CMB's motion in limine to prevent Sunrise from introducing documents referencing “Sunrise Equipment, Inc.,” or other variants of Sunrise's name. CMB argues that Sunrise should have been bound by its precise name, that the other name variants were separate legal entities, and that the documents referencing those name variants were thus irrelevant and likely to confuse the jury. We review the trial judge's decision to deny CMB's motion in limine for abuse of discretion. See Federal Home Loan Mtge. Corp. v. Bartleman, 94 Mass. App. Ct. 800, 802 (2019).
We note that the record appendix contains neither CMB's motion in limine nor the complete trial transcript. Without the motion in limine, we do not know the precise scope of relief sought or arguments raised below, and we are thus unable to review how the evidence was used at trial, whether the issue was properly preserved or whether the trial judge abused her discretion. In the absence of an adequate appellate record, the issue is waived. See Charles v. Leo, 96 Mass. App. Ct. 326, 342 n.9 (2019). Regardless, to the extent CMB sought to exclude the bid and pricing revisions that were on letterhead stating “Sunrise Equipment, Inc.,” we discern no abuse of discretion. Whether Kerrissey submitted the bid and pricing revisions on behalf of Sunrise or of a different legal entity was a question of fact for the jury. See, e.g., Georgetown Sand & Gravel Co. v. Burr, 338 Mass. 762, 764-765 (1959).
d. CMB's motions for judgment notwithstanding the verdict and for a new trial. Lastly, CMB argues that its motion for judgment notwithstanding the verdict should have been granted because (1) there was no evidence of a contract between Sunrise and CMB, (2) if there was evidence of a contract, it was an oral contract that violated the Statute of Frauds, and (3) the evidence on damages was speculative. As to whether there was a contract and whether the damages were speculative,5 there is no way for us to assess these arguments without reviewing the evidence that was presented to the jury. Since, as noted above, CMB has not provided us with the complete trial transcript, CMB's arguments regarding whether there was a contract and whether the damages were speculative are waived. See Charles, 96 Mass. App. Ct. at 342 n.9.
CMB's argument regarding the Statute of Frauds stands on slightly different footing, as the parties appear to agree that the appellate record includes all portions of the trial transcript relevant to the Statute of Frauds issue. CMB argues that, if there was evidence of a contract between Sunrise and CMB, it was an oral contract. CMB further argues that the only evidence regarding the duration of any such oral contract was that the project was a year-long project, thereby violating the Statute of Frauds. CMB relies on the following lines of Kerrissey's testimony: (1) “this project was a year-long project,” (2) “[i]t was work for us, for a year,” (3) “we had enough work for a year,” and (4) “it set up my company for a year.”
Yet, “the Statute of Frauds applies only to contracts which by their terms cannot be performed within the year. It does not apply to contracts which may be performed within, although they may also extend beyond, that period” (quotation and citation omitted). Coady v. Wellfleet Marine Corp., 62 Mass. App. Ct. 237, 248 (2004). Here, Kerrissey's testimony does not compel the conclusion that the work could not have been performed within the year. The jury could have instead interpreted Kerrissey's testimony as going to his personal expectation that the excavation and site work would last a year. The work may have lasted less than a year, or it may have lasted more than a year. In these circumstances, CMB's motion for judgment notwithstanding the verdict based on the Statute of Frauds was properly denied.6
2. As noted above, Sunrise's precise name is Sunrise Equipment & Excavation, Inc. It appears that Kerrissey was the principal of two separate entities, Sunrise and Sunrise Equipment, Inc. At trial, Kerrissey testified that he sometimes used their letterhead interchangeably.
3. In its motion for a directed verdict, CMB argued that there was no evidence of a contract between Sunrise and CMB and that, if there was evidence of a contract, it was an oral contract that violated the Statute of Frauds.
4. CMB argues that a judgment did enter and that the applicable standard was thus whether Sunrise showed excusable neglect under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). See Institution for Sav. in Newburyport & its Vicinity, 92 Mass. App. Ct. at 821 n.16 (contemplating that when plaintiff fails to respond to interrogatories and defendant files written application for final judgment, entry of default judgment may occur immediately). The docket does not support CMB's argument. The docket instead shows that on December 7, 2015, CMB's application was allowed and an order was entered stating that “the action shall be dismissed.” Ten days later, on December 17, 2015, notice was sent to the parties regarding CMB's application. On December 21, 2015, Sunrise filed its motion to strike CMB's application and to remove the default. On February 1, 2016, a hearing was held, Sunrise's motion to strike CMB's application and to remove the default was allowed, and the order of dismissal was vacated. At no point during the course of these events did a judgment actually enter.
5. CMB raised both arguments in its motion for judgment notwithstanding the verdict and its motion for a new trial. CMB did not, however, argue that the evidence on damages was speculative in its motion for a directed verdict. See note 2, supra. An issue not raised in a motion for a directed verdict cannot later be raised in a motion for judgment notwithstanding the verdict. See Bonofiglio v. Commercial Union Ins. Co., 411 Mass. 31, 34 (1991). Where CMB did not argue that the evidence on damages was speculative in its motion for a directed verdict, CMB waived the issue for purposes of its motion for judgment notwithstanding the verdict. See id.
6. Sunrise states that it has incurred additional attorney's fees at the trial level since its motion for attorney's fees was allowed on August 28, 2018. Nothing herein prevents Sunrise from filing a motion in the Superior Court for any such additional trial level attorney's fees.
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