Opinion
20-P-1146
12-27-2021
Ramona LANE v. Artemisa MONTEIRO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After an extended period of litigation in this civil action between two formerly close friends, a judge of the Superior Court entered a default judgment on liability against the defendant for her failure to comply with the rules of discovery. Some six months later, a second judge granted the plaintiff's motion for assessment of damages and awarded her $131,604.52. The defendant now appeals, contesting the award and arguing that the entry of default deprived her of her due process right to try the case on the merits. For the reasons that follow, we affirm.
Background. The record supports the following findings. Ramona Lane and Artemisa Monteiro met in 2011 when Lane became a tenant in Monteiro's apartment building.
We note that, to the extent the record contains numerous unsigned affidavits, we cannot rely upon them.
Several years into their friendship, the relationship between the two women began to deteriorate. The conflict between them culminated in 2015 when Monteiro served Lane with an eviction notice. After proceedings in Housing Court concluded, Lane filed a complaint in Superior Court alleging causes of action including breach of their lease and employment contracts, statutory housing law violations, and conversion of property.
The plaintiff filed the initial complaint on December 7, 2015. She subsequently filed an amended complaint on May 31, 2016.
Monteiro filed a counterclaim on February 2, 2017.
Discovery commenced in the Superior Court suit. Then, on October 6, 2016, a judge of the Superior Court entered a default judgment against the defendant, on the issue of liability only, due to the defendant's failure to respond to the plaintiff's interrogatories over a period of several months. In January of 2017, a second judge vacated the judgment and halted further discovery to allow for the completion of outstanding discovery. But the defendant's uncooperative conduct persisted, prompting the plaintiff to file a renewed motion for final judgment. After allowing the defendant significant time and opportunities to remedy her noncompliance to no avail, a third judge of the Superior Court again entered judgment against the defendant on liability, citing numerous discovery violations. For example, the defendant had yet to provide the plaintiff with "complete and verified" answers to interrogatories. Among other violations, the defendant also failed to "respond to the document requests or cooperate with the scheduling of depositions by the ... discovery deadlines[s]." At the sole deposition conducted, the defendant "refused to answer some questions and was evasive or non-responsive with respect to others." Her responses to questions during the deposition "made it clear that she had not properly responded to the interrogatories." Ultimately, the judge recognized that, though the entry of judgment for discovery violations was a "drastic" measure, it was warranted in this case because the defendant's conduct was "extreme and willful."
The plaintiff also filed a motion for contempt; however, the contempt complaint was eventually dismissed so that final judgment could enter.
The judge found that the defendant had provided some but not all the requested documents and failed to provide a written response to the document request.
The judge also noted that the defendant was late in filing her answer, made "very little effort to comply" with discovery requests in the wake of the vacated judgment, attempted to obtain discovery from the plaintiff that hadn't been served before the halting of discovery, failed to pay the award of attorney's fees for her previous discovery violations, and failed to properly comply with the court's order to serve a responsive letter to the plaintiff indicating the outstanding documents she was willing to produce and providing detailed explanations for the documents she could not produce.
Here, the judge noted: "[The] [d]efendant testified that she was not familiar with the content of the answers to the interrogatories and admitted that the answers were inaccurate in several respects. She said that her lawyer had written the answers and that she could not say whether they were complete. When asked why she signed her name to the interrogatories, purportedly verifying the accuracy and completeness of the answers, she said, ‘I don't care’ and ‘So what?’ "
The judge also noted that the defendant failed to provide any explanation or justification for her repeated failures to comply.
The plaintiff then moved for an assessment of damages. The plaintiff submitted documentary evidence, and the second judge held a hearing conducted over multiple days before awarding damages to the plaintiff on five counts. The remaining counts were dismissed. Following the entry of judgment, the defendant appealed to this court.
In support of her motion for assessment of damages, Lane submitted declarations from herself, her counsel, her daughter, and a friend.
Discussion. 1. Inadequate record. The defendant first challenges the damages awards, claiming various errors and an abuse of discretion by the judge. However, the defendant's failure to provide this court with transcripts from the hearing on damages renders us unable to reach the merits of her claims.
In addition, we have allowed the plaintiff's motion to strike pages 22-175 of Volume I and pages 4-56 of Volume II of the defendant's record appendix because these documents were not part of the record in the trial court. In an effort to reverse the judgment against her, the defendant for the first time provided "discovery" in submissions to this court. The reason the judgment entered for the plaintiff in the first instance was the defendant's repeated and inexcusable failures to participate in the discovery process. The Appeals Court is not the proper forum for submission of documents for the first time. We cannot consider such.
As the appellant, the defendant was obligated to produce all portions of the transcript "essential for review of the issues raised on appeal." Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995), quoting Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992). See Mass. R. A. P. 18 (a) (1) (A), as appearing in 481 Mass. 1637 (2019). This requirement is "a fundamental and long-standing rule of appellate civil practice." Carelli, 39 Mass. App. Ct. at 84, quoting Zagami, 30 Mass. App. Ct. at 372-373. See, e.g., Zagami, 411 Mass. at 810-812 (parties failed to comply with Massachusetts Rules of Appellate procedure where they, inter alia, continually referred to trial transcript in their briefs but failed to file complete copy with the court); O'Meara v. Doherty, 53 Mass. App. Ct. 599, 605-606 (2002) (court could not ascertain whether trial judge's findings were clearly erroneous where party failed to file complete copy of trial transcript).
The defendant did not include any portion of the hearing transcripts in the record appendix. Indeed, she failed to request a copy of the transcript at all. As a result of this failure, we have insufficient information to assess whether the second judge erred or abused his discretion in calculating the damages. On the present record, we see no reason to disturb the judge's conclusions.
2. Due process. The defendant also challenges the entry of default against her, alleging that her due process rights were violated when she was denied the opportunity to try the case on the merits. We disagree.
While the decision to impose sanctions is within the discretion of the judge overseeing discovery, the decision must also be assessed under due process principles. CMJ Mgt. Co. v. Wilkerson, 91 Mass. App. Ct. 276, 284 (2017). See Mass. R. Civ. P. 37 (b) (2), as amended, 390 Mass. 1208 (1984). "The due process clause imposes limits upon a court's discretion to impose a sanction that deprives a party of the opportunity for a trial on the merits." Keene v. Brigham & Women's Hosp., Inc., 56 Mass. App. Ct. 10, 17 (2002), S.C., 439 Mass. 223 (2003). However, where the failure to comply with a discovery order is the result of "wilfulness, bad faith, or fault," a sanction of default may be appropriate under rule 37 (b) (2) (C). Keene, 56 Mass. App. Ct. at 18. See Short v. Marinas USA Ltd. Partnership, 78 Mass. App. Ct. 848, 852 (2011).
The due process clause of the Fourteenth Amendment to the United States Constitution requires notice and an opportunity to be heard. Ciampi v. Commissioner of Correction, 452 Mass. 162, 170 (2008), citing Logan v. Zimmerman, 455 U.S. 422, 428, 434 (1982).
Therefore, when reviewing a judge's decision on sanctions, "[t]he consideration[s] to be balanced ... are, on the one hand, a concern about giving parties their day in court, and, on the other, not so blunting the [discovery] rules that they may be ignored ‘with impunity.’ " Short v. Marinas USA Ltd. Partnership, 78 Mass. App. Ct. 848, 852 (2011), quoting Greenleaf v. Massachusetts Bay Transp. Auth., 22 Mass. App. Ct. 426, 429-430 (1986).
Because the third judge correctly found the defendant's behavior to be willful, the entry of default was appropriate. The judge thoroughly detailed, and the record reflects the numerous opportunities and significant latitude afforded to the defendant throughout the litigation. As we have noted, the second judge even vacated the defendant's first default judgment to give her another chance at trying the case on the merits. But the defendant, herself a lawyer and sophisticated litigant, chose not to avail herself of the opportunities offered. Under these circumstances, there was no violation of due process.
The plaintiff has requested, and is entitled to appellate attorney's fees and costs. See Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019). She may submit a petition for fees and costs, together with supporting materials, within fourteen days of the date of the rescript of this decision. The defendant shall have fourteen days thereafter to respond. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The plaintiff's request that the case be remanded to the trial court with instructions to award costs and attorney's fees in that court is denied, as the plaintiff did not notice an appeal from the judgment.
Judgment affirmed.