Marshall v. Stratus Pharmaceuticals5/25/2001
Middlesex.
September 15, 2000.
Practice, Civil, Default, Complaint, Amendment, Answer. Judgment, Default. Contract, Performance and breach, Damages, Misrepresentation. Consumer Protection Act, Unfair or deceptive act, Attorney's fees, Damages. Damages, Attorney's fees, Interest.
Civil action commenced in the Superior Court Department on October 17, 1994.
Motions to dismiss and for reconsideration were heard by Robert H. Bohn, Jr., J.; motions to remove defaults and for reconsideration of an order requiring posting of a bond and payment of costs were heard by Herman J. Smith, Jr., J.; and entry of a judgment by default upon assessment of damages was ordered by Barbara J. Rouse, J.
The central issue in this appeal by the plaintiff is the extent to which issues remained open on a hearing to assess damages after a default had entered against the defendants under Mass.R.Civ.P. 55(a), 365 Mass. 822 (1974), for failure timely to file their answers.
The gist of the plaintiff's complaint, filed in the Superior Court, was that the defendants, Stratus Pharmaceuticals, Inc. (Stratus), Albert Hoyo, and Keith Pyle, failed to pay for the plaintiff's services in breach of contract and that the defendants, having never intended to pay for all of such services, acted in violation of G. L. c. 93A. The plaintiff also claimed entitlement, under an assignment from one Ed Brody, to payment for the latter's services to the defendants. After the denial of the defendants' motions to dismiss the complaint for lack of personal jurisdiction under Mass.R.Civ.P. 12(b)(2), 365 Mass. 754 (1974) the defendants, two Florida residents and a Florida corporation, failed timely to file answers and were defaulted. A judge of the Superior Court held a hearing to assess damages, and, after making extensive findings and rulings of law in a thorough memorandum, entered "JUDGMENT BY DEFAULT UPON ASSESSMENT OF DAMAGES -- Mass.R.Civ.P. 55(b)(2) AS AMENDED" of $51,280.21, plus interest, against Stratus and entered judgments for the individual defendants Pyle and Hoyo. At numerous times during the hearing the judge indicated, usually in response to the plaintiff's objection, that the only issues to be tried were those relating to damages.
The plaintiff urges numerous errors, primarily focusing on the contention, both in his claim of erroneous rulings at trial and in the denial of his motion for a new trial, that the default entered on the allegations of his complaint precluded the defendants, including the individual defendants, from challenging liability. He also claims that the amounts set forth in his invoices should not have been reduced, that interest should have been computed from the respective dates of such invoices, and that he should not have been ordered to return to Stratus the drugs, formulas, and laboratory reports which he had withheld from the company as security for payment of amounts owed.
Although the defendants in their brief also claim numerous errors, including the ruling that there was personal jurisdiction over the defendants and the conditioning of the removal of the default on the defendants' filing a bond, we do not consider these issues because the defendants, by failing to pay the docket fee, have not docketed their appeal in accordance with Mass.R.A.P. 10(a)(1), as amended, 378 Mass. 937 (1979). Larabee v. Potvin Lumber Co., 390 Mass. 636, 639 (1983). See Slaves of the Immaculate Heart of Mary of Saint Benedict Center, Inc. v. Dalton, 397 Mass. 784, 787 (1986). See also M.L. Shalloo, Inc. v. Ricciardi & Sons Constr., Inc., 348 Mass. 682, 684 (1965). While the defendants may defend the judgment against any attack by the plai
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