In a suit for unpaid insurance premiums, judgment was entered for the plaintiff for $12,400, the amount of damages claimed by the complaint. Judgment was based by the trial judge on "the ultimate sanction of default envisioned by [Mass.R.Civ.P.] 37 (b) (2) (C), [ 365 Mass. 799 (1974)]" for failure to make discovery. The record supports the judge's determination that the defendants'responses to discovery had been so consistently dilatory and incomplete as to warrant imposition of sanctions under rule 37 (b). Levings v. Forbes & Wallace, Inc., 8 Mass. App. Ct. 498 , 505 (1979). At least whatever doubts we may have on that score are not sufficient to warrant us in concluding that the judge abused his discretion in deciding that sanctions were in order. See Jerry Martin Co. v. Hyannis Marina, Inc., 3 Mass. App. Ct. 746 (1975); Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426 , 433-435 (1979). But as Henshaw v. Travelers Ins. Co. 377 Mass. 910 (1979), and Boston Housing Authy. v. Kennedy, 379 Mass. 914 (1979), instruct, in the absence of an account annexed or other liquidated sum, it is not appropriate to award a default judgment granting the full sum set forth in the plaintiff's complaint without holding an evidentiary hearing to assess damages. See Litton Business Tel. Sys., Inc. v. Schwartz, ante 847 (1980). Contrast Norman v. Young, 422 F.2d 470, 473-474 (10th Cir. 1970). In this case, the complaint did not have an account annexed and the defendants appear to have raised some creditable defenses. The sanctions which the judge may impose in the instant action include reasonable attorney's fees incurred by the plaintiff in pressing discovery, the denial of a trial by jury (which the defendants sought), and the limitation of further proceedings to an assessment of damages. Accordingly, the judgment is reversed and the matter is remanded to the Superior Court for imposition of sanctions with an evidentiary hearing to assess damages.
The plaintiff brought an action of summary process in a District Court. See G. L. c. 239, Section 1. Judgment for possession was entered for the plaintiff, from which the defendant claimed an appeal to the Superior Court. A District Court judge, sitting under statutory authority, denied the plaintiff's motion for summary judgment based on the defendant's failure to comply with G. L. c. 239, Section 5, as appearing in St. 1977, c. 655, Section 1. Compare Brockton Redevelopment Authy. v. Gilbride, ante 836 (1980). The judge found for the defendant, and the plaintiff is now appealing from the ensuing judgment for possession.
We need not reach the questions whether the judge incorrectly interpreted G. L. c. 140, Section 32J, second par., cl. 4, and whether summary judgment should have been granted, because the defendant is no longer in possession of the lot in question and the plaintiff has regained possession. Therefore, the plaintiff's case is (as the defendant-appellee suggests) moot. See Central Hosp., Inc. v. Commissioner of Pub. Health, 377 Mass. 907 (1979); Bucci v. Planning Bd. of Lincoln, 4 Mass. App. Ct. 775 (1976). Contrast Ottaway Newspapers, Inc. v. Appeals Ct., 372 Mass. 539 , 550 (1977). Accordingly, the action having become moot on appeal, the judgment appealed from is vacated with a notation that the decision is not on the merits, and the action is remanded to the Superior Court with directions that it be dismissed. Neither party is to have costs of appeal. Mass.R.A.P. 26(a), 365 Mass. 873 (1974).