JOHNNY'S OIL COMPANY, INC. vs. WALID ELDAYHA.

AGNES, J. The defendant, Walid Eldayha, appeals from an

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order denying his motion for relief from a default judgment in favor of the plaintiff, Johnny's Oil Company, Inc. (Johnny's Oil), entered by a clerk of the Superior Court on what is, essentially, a collection action for gasoline delivered to stations owned or controlled by Eldayha. [Note 1] The issues before us are whether the motion judge abused his discretion by denying Eldayha's prejudgment motion to vacate the entry of default, and whether a second motion judge abused his discretion by denying Eldayha's motion for relief from the default judgment. With regard to his motion for relief from the default judgment, Eldayha argues, among other things, that the entry of judgment by a Superior Court clerk pursuant to Mass.R.Civ.P. 55(b)(1), as amended, 454 Mass. 1401 (2009), was improper because Johnny's Oil's claim was not for a "sum certain" or "a sum which can by computation be made certain." [Note 2]

Procedural facts. Johnny's Oil filed a four-count complaint against Eldayha on March 21, 2011. The first two counts allege breach of contract and "misrepresentation & detrimental reliance" based upon Eldayha's failure to pay for the delivery of gasoline to stations owned or controlled by him. The complaint alleges that the balance due for the gasoline was $143,963.71, and requests this amount for each of the first two counts. Count three alleges misrepresentation and detrimental reliance on the basis of Eldayha's request that Johnny's Oil purchase a "model year 2000 Freightliner tank wagon truck" in order to service Eldayha's gasoline stations. Johnny's Oil alleged that it purchased such a truck in reliance on Eldayha's request, at a cost of $92,500. The complaint further states that Eldayha then "refused to pay for the gasoline and any future orders." The final count states a G. L. c. 93A claim. Service of the complaint was made on Eldayha's last and usual place of abode on March 28, 2011.

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As of April 22, 2011, Eldayha had not responded to the complaint, and Johnny's Oil filed a motion for a default pursuant to Mass.R.Civ.P. 55(a), 365 Mass. 822 (1974), which a clerk entered on the same day. On May 5, 2011, Eldayha filed a motion to remove the default and to file his answer late. [Note 3] Johnny's Oil filed an opposition on May 11, 2011, and on May 17, 2011, it moved for default judgment pursuant to Mass.R.Civ.P 55(b)(1). [Note 4] On June 6, 2011, Eldayha's motion to vacate the default was denied.

On July 14, 2011, a Superior Court clerk notified Johnny's Oil that waiver of its c. 93A claim was required prior to entry of default judgment under rule 55(b)(1). Johnny's Oil voluntarily dismissed that count of the complaint without prejudice on July 29, 2011, and additionally submitted an affidavit from its president in support of its motion for default judgment. The president's affidavit states that "[p]ursuant to a longstanding agreement," Eldayha had promised to pay for gasoline deliveries to service stations he owned and operated but had failed to do so for deliveries "with a total cost of $143,963.71." The affidavit further states that the tank truck, which Johnny's Oil had purchased based upon Eldayha's request, had cost $92,500. Finally, the president avers that Johnny's Oil's "books of account" show that Eldayha is indebted to Johnny's Oil in the total amount of $236,463.71.

On August 9, 2011, a clerk of the court entered default judgment against Eldayha in the amount of $236,463.71 plus interest in the amount of $10,961.65. Eldayha moved for relief from the judgment, pursuant to Mass.R.Civ.P 60(b), 365 Mass. 828 (1974), on September 1, 2011. That motion was denied by a second judge on September 6, 2011.

Discussion. 1. Motion to vacate default. Eldayha argues that the first motion judge abused his discretion when he refused to

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vacate the default. A defendant may obtain relief from a default on a showing of "good cause." See Mass.R.Civ.P. 55(c), 365 Mass. 822 (1974); Bissanti Design/Build Group v. McClay, 32 Mass. App. Ct. 469 , 470 (1992). "Good cause" requires a showing by affidavit that the defendant had a good reason for failing to plead or defend in a timely manner and had meritorious defenses. See New England Allbank for Sav. v. Rouleau, 28 Mass. App. Ct. 135 , 140 (1989). See also Smith & Zobel, Rules Practice § 55.8 (2d ed. 2007). We review a judge's decision not to vacate a default for abuse of discretion. New England Allbank for Sav., supra at 144. "We do not consider that discretion abused unless its exercise has been characterized by arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice." Greenleaf v. Massachusetts Bay Transp. Authy., 22 Mass. App. Ct. 426 , 429 (1986).

In his motion to vacate the default, Eldayha stated that the reason for his failure to file his answer was that the complaint was "served at a domicile from which I was in the process of vacating." However, he failed to accompany his motion, as required, with an affidavit setting forth the facts and circumstances, including the nature of his defenses, offering, instead, a motion with mere conclusory statements that he had a meritorious defense. That, alone, is a fatal omission. See New England Allbank for Sav., 28 Mass. App. Ct. at 140. Consequently, we conclude that the first motion judge did not abuse his discretion in denying Eldayha's motion to vacate the default.

2. Motion for relief from default judgment. a. Excusable neglect. Eldayha also claims that the second motion judge abused his discretion in denying the rule 60(b) motion for relief from the default judgment. "Rule 60(b) of the Massachusetts Rules of Civil Procedure provides a limited exception to the finality of a judgment. Relief is available in a narrow set of circumstances, specified in subdivisions (b)(1) through (b)(6), to accomplish justice." Jones v. Boykan, 79 Mass. App. Ct. 464 , 468 (2011). "Rule 60(b)(1) permits a judge . . . to relieve a party from the effect of an otherwise final judgment for reasons of 'mistake, inadvertence, surprise, or excusable neglect.' " Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426 , 429 (1979). "Excusable neglect requires circumstances that are

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unique or extraordinary[, not] any kind of garden-variety oversight." Feltch v. General Rental Co., 383 Mass. 603 , 613-614 (1981) (citations and quotations omitted). "Entry or, conversely, removal of default judgment has to do with the management of the case and, as such, is committed to the sound discretion of the trial judge." Greenleaf, 22 Mass. App. Ct. at 429.

In his affidavit supporting his motion for relief from judgment, Eldayha generally alleges that at the time of service he was having marital difficulties and that his "wife . . . did not give me the Complaint until the twenty days had expired. I believe she did this out of spite knowing the delay would be harmful." Assuming the statements rose to the "extraordinary" level required to show good cause or excusable neglect, the judge did not abuse his discretion by denying Eldayha's motion because Eldaya presented only conclusory assertions rather than a demonstration that he had a meritorious defense to liability on the claims.

b. Sum certain. i. Gasoline charges. Our rules of civil procedure authorize a clerk to enter a judgment by default, as distinguished from the entry of a default, only when, among other requirements, "the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain." Mass.R.Civ.P. 55(b)(1). In such a case there is no hearing and no oversight by a judge. The clerk's responsibility is ministerial -- to make a computation of damages, which may include the addition of interest. In all other cases, entry of a judgment by default may only be accomplished by order of a judge. [Note 5] See Mass.R.Civ.P. 55(b)(2).

Even where a defendant makes no appearance in a case, a default judgment does not automatically enter for a plaintiff. It is settled "that a default does not concede the amount of damages." Bissanti Design/Build Group, 32 Mass. App. Ct. at

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471, citing Productora e Importadora de Papel, S.A. de C.V. v. Fleming, 376 Mass. 826 , 832-835 (1978). This is because the court, as has been noted in regards to the analogous Fed.R.Civ.P. 55, see note 7, infra, "has an obligation to assure that there is a legitimate basis for any damage award it enters, and to assure that damages are not awarded solely as the result of [a] . . . defendant's failure to respond," in this case, to a complaint. Anheuser-Busch, Inc. v. Philpot, 317 F.3d 1264, 1266 (11th Cir. 2003). In order to fulfil this burden, a trial court must "conduct an inquiry in order to ascertain the amount of damages with reasonable certainty." Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999).

Prior to the adoption of the rules of civil procedure, a judge was authorized to order entry of judgment following a default either "by taking evidence when necessary or by computation from facts of record." Plasko v. Orser, 373 Mass. 40 , 44 n.3 (1977), quoting from Pope v. United States, 323 U.S. 1, 12 (1944). [Note 6] "Rule 55(b) [did] not substantially change Massachusetts practice." 1973 Reporter's Notes to Mass.R.Civ.P. 55, 46 Mass. Gen. Laws Ann., Rules of Civil Procedure, at 763 (West 2006). The change brought about by the adoption of rule 55(b)(1) (at the time applicable to all courts except the District and Boston Municipal Court departments) and the adoption of rule 55(b)(3) (at the time applicable to the District and Boston Municipal Court departments) was to relieve judges "of a purely mechanical, non-discretionary function," Smith & Zobel, Rules Practice § 55.3, namely, the responsibility for entering judgment when "the amount is liquidated or susceptible of mathematical computation." Plasko, 373 Mass. at 44 n.3, quoting from Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974).

For example, in Plasko, supra at 44, the court explained that ordinarily, after a default in an action on a note, a clerk is authorized to enter judgment because the claim is "for a sum certain or for a sum which can by computation be made certain," but the clerk could not enter a judgment that also included

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attorney's fees because a hearing would be required in order to determine the amount of the fees that are due. In such a case, therefore, it would be necessary for a judge to act under Mass.R.Civ.P. 55(b)(2). Likewise, in National Grange Mut. Ins. Co. v. Walsh, 27 Mass. App. Ct. 155 , 158 (1989), this court vacated an award of damages ordered entered by a judge without a hearing under Mass.R.Civ.P. 55(b)(2) because it was not based on a "sum certain": "[o]nly a conclusory memorandum prepared by counsel and his representations supported the judgment. These damages should not have been awarded without an evidentiary hearing or a computation from facts of record. The plaintiff has not shown here that the amount claimed is liquidated or capable of ascertainment from definite figures contained in the documentary evidence or in detailed [uncontroverted] affidavits." Ibid. (citation & quotation omitted). Accord Kansky v. Harrison, 398 Mass. 1007 , 1008 (1986). [Note 7]

A prototypical sum certain is an action on a note or a similar

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instrument, such as a guaranty. See Plasko, supra (note generally sum certain); Shawmut Bank, N.A. v. Chase, 34 Mass. App. Ct. 266 , 268, S.C., 416 Mass. 1008 (1993) (guaranty generally sum certain). In such a case, the moving party is responsible for providing the clerk with sufficient documentation about amounts paid and amounts due to enable the clerk to arrive at an award of damages by the use of arithmetic and not the mere "say-so" of the moving party. See Franchise Holding II, LLC v. Huntington Restaurants Group, Inc., 375 F.3d 922, 929 (9th Cir. 2004). On the opposite end of the spectrum, an action in which credibility assessments are necessary or there is discretion over how to calculate the damages is not for a sum certain. See, e.g., Shafnacker v. Raymond Jones & Assocs., Inc., 425 Mass. 724 , 737 (1997) (damages based on performance of investments that would have been proper and reasonable for plaintiff was not for sum certain). [Note 8]

In this case, Johnny's Oil's attempt to recover a contractual debt for the delivery of gasoline does not qualify as a "sum certain," or "a sum which by computation can be made certain." The record contains no indication of the terms of the parties' contract. It is unclear, for example, whether the price per unit of gasoline was a set figure, was based on market prices, or was based on some approximation of reasonableness. [Note 9] It is also unclear whether there were any charges for services, in addition to charges for the gasoline itself, and whether these charges were for a set or a reasonable amount. In fact, it is unknown whether the parties reduced their contract to writing or had an informal, oral set of agreements. Without such information, the case does not qualify for a default judgment pursuant to Mass.R.Civ.P. 55(b)(1).

Johnny's Oil argues that because it has stated a precise figure

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in its complaint and has submitted an affidavit attesting to this figure, it has satisfied the sum certain requirement. However, a "complaint does not achieve 'sum certain' status simply by requesting a specific amount." Curly Customs, Inc. v. Pioneer Financial, 62 Mass. App. Ct. 92 , 100 (2004), quoting from Smith & Zobel, Rules Practice § 55.4 (1977 & Supp. 2004). [Note 10] Likewise, as this court has previously stated in regard to a claim for breach of contract, "[t]he appending of invoices -- [where] the plaintiff did not even itemize the services -- did not convert his claims into a sum certain within the meaning of Mass.R.Civ.P. 55[(b)]." [Note 11] Marshall v. Stratus Pharmaceuticals, Inc., 51 Mass. App. Ct. 667 , 679 (2001). In light of Marshall, Johnny's Oil's decision to append no documentation to its motion for a default judgment cannot be considered sufficient to establish that its claim is for a sum certain. Less documentation cannot suffice where more is inadequate.

Similarly, Eldayha cannot be said to have admitted this figure by failing to respond to the complaint because "[a]verments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading" (emphasis supplied). Mass.R.Civ.P. 8(d), 365 Mass. 749 (1974). See Bissanti Design/Build Group, 32 Mass. App. Ct. at 471 ("a default does not concede the amount of damages"). Johnny's Oil's statement of the debt owed by Eldayha in the complaint is functionally an averment as to the amount of damages under its breach of contract claim. It was not deemed admitted by Eldayha's failure to file a responsive pleading denying the amount. Holding otherwise would allow Mass.R.Civ.P. 8(d) to be evaded by an exercise in tautology.

Many other jurisdictions interpreting provisions similar or

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identical to Mass.R.Civ.P. 55(b)(1) have come to precisely the same result in similar situations. [Note 12]

ii. The tank truck. There remains the issue of the award of damages of $92,500, based upon the Johnny's Oil's claim that it purchased a truck at the request of Eldayha. Although any substantive defenses have been waived by Eldayha due to his failure to file a timely response to the complaint, we conclude the damages sought were not for a sum certain notwithstanding the affidavit from Johnny's Oil's president, which states that "[Eldayha] requested [Johnny's Oil] purchase a model year 2000 Freightliner tank wagon with a price of $92,500. In reliance therein, [Johnny's Oil] made the purchase."

Detrimental reliance on an offer or a promise (also known as promissory estoppel) is a substitute for consideration. Therefore, an offer that reasonably induces the other party to act is enforceable as a contract in the same manner as any other contract to the extent necessary to avoid injustice. Loranger Constr. Corp. v. E. F. Hauserman Co., 376 Mass. 757 , 760-761 (1978). See Rhode Island Hosp. Trust Natl. Bank v. Varadian, 419 Mass. 841 , 850 (1995); Restatement (Second) of Contracts § 90(1) (1981). Nonetheless, this cause of action is infused with equitable considerations. [Note 13] Recovery under the theory of detrimental reliance is permitted because the law recognizes that facts falling short of "deceit, bad faith or actual fraud . . . may constitute

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conduct contrary to general principles of fair dealing and to the good conscience which ought to actuate individuals and which it is the design of courts to enforce. It is in the main to accomplish the prevention of results contrary to good conscience and fair dealing that the doctrine of estoppel has been formulated and taken its place as a part of the law." MacKeen v. Kasinskas, 333 Mass. 695 , 698 (1956) (quotation omitted). "[T]he detrimental reliance by the party claiming estoppel must be reasonable." Weston Forest & Trail Assn., Inc. v. Fishman, 66 Mass. App. Ct. 654 , 659 (2006).

Johnny's Oil alleges that it would not have purchased the tank truck absent Eldayha's instruction that it do so and that, consequently, with liability established, it should be restored to "as good a position as [it] would have been in had the contract not been made." Hastoupis v. Gargas, 9 Mass. App. Ct. 27 , 35 n.6 (1980). However, just as in the case of the agreement for the purchase of the gasoline, Johnny's Oil's statement of the specific amount of money owed by Eldayha was not admitted by Eldayha's failure to file a responsive pleading denying the amount owed. See Mass.R.Civ.P. 8(d). "[A] default does not concede the amount of damages." Bissanti Design/Build Group, 32 Mass. App. Ct. at 471. Even though the affidavit filed by Johnny's Oil's president states that Johnny's Oil carried out Eldayha's specific direction and "purchased" a truck for $92,500, it does not satisfy the requirements of Mass.R.Civ.P. 55(b)(1).

In the absence of an agreement between the parties setting forth all the relevant terms (including in this case what was to become of the truck in the future and whether Eldayha was due an offset), the damages that are appropriate to award in a case of detrimental reliance, in which one party purchases a thing such as a vehicle in reasonable reliance on the promise of another party, are necessarily indeterminate. In order to determine the amount of restitutionary damages required to restore Johnny's Oil to the position it was in before Eldayha's promise was made, it will be necessary to determine the disposition of the truck purchased by Johnny's Oil. Whether Johnny's Oil sold it, leased it, or retained it for its own use, the truck has a value that must be considered in calculating the appropriate award of damages. Thus, in view of the equitable nature of the claim

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based on detrimental reliance and the indeterminate nature of the damages owed to Johnny's Oil, there must be a hearing before a judge under Mass.R.Civ.P. 55(b)(2) on the question of the appropriate award of damages on count three of the complaint.

Conclusion. The view we take of rules 55(b)(1) and 55(b)(2) does not mean that a clerk is prohibited from entering a default judgment under rule 55(b)(1) where the plaintiff seeks to recover damages based on a contract for goods sold and delivered like the claim in count one relating to gasoline. Optimally, in such a case, the plaintiff will include (a) a description of the contract or arrangement creating the duty of payment, along with any supporting documentation; (b) an itemization of the goods and services delivered, supported by any available copies of the corresponding bills, invoices, and records of performance; and (c) verification of all allegations and documentation. At a minimum, however, the plaintiff must provide the clerk with the essential terms of the contract or other documentation that establishes the debt, accompanied by appropriate verification, so the clerk can be assured that the claim is one for a sum certain or one that can be made certain by calculation. [Note 14] In the case of a claim for damages that requires the application of equitable principles (e.g., what is fair and reasonable), such as the claim for detrimental reliance damages in count three of the complaint here, an assessment of damages by a judge under Mass.R.Civ.P. 55(b)(2) will be required.

For the above reasons, we affirm the order denying the motion

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to remove the default, and reverse the order denying the motion for relief from the default judgment. The matter is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.