FARLAND CORPORATION, INC. [Note 1] v. JAMES MCKEE

PINO, J. This appeal arises from a contractual dispute between the plaintiff, Farland Corporation, Inc. ("plaintiff"), and the defendant, James McKee ("defendant"), through which the plaintiff sought repayment of a promissory note executed by the defendant on November 30, 2016.

Factual and procedural background. Suit was commenced on March 29, 2018, for breach of contract and attorney's fees. The defendant filed his answer, counterclaim, and jury demand on May 15, 2018. By and through the counterclaim, the defendant asserted claims for breach of contract and unjust enrichment.

Following the completion of discovery and a pretrial conference, the plaintiff filed a motion for summary judgment on December 14, 2018. The court denied the plaintiff's motion for summary judgment after hearing on January 14, 2019.

On the day ofthe scheduled jury trial, March 28, 2019, the plaintiff, its attorney, and counsel for the defendant answered at the call of the trial list. The defendant was not present at that time. In that regard, defendant's counsel represented to the court that the defendant was confused about the trial's start time and the trial date. Additionally, defendant's counsel represented that the defendant was on his way from Rhode Island and would arrive at 11:45 A.M. In response to that information and counsel's request that the defendant have until 12:00 P.M. to arrive, the court gave the defendant until 11:30 A.M. to arrive. The court also informed defendant's counsel that the defendant would be defaulted if he did not arrive by that time. The defendant was defaulted by the session clerk after 11:30 A.M. as a result of the defendant's failure to arrive by that time.

Thereafter, the plaintiff filed a motion to assess attorney's fees on April 8, 2019, to which the defendant objected. After hearing, the court awarded attorney's fees in the amount of $3,450.00 on May 2, 2019. The court entered an amended final judgment on May 8, 2019, in the amount of $28,572.90.

On May 28, 2019, the defendant filed a motion to extend the deadline for filing an appeal and a motion to vacate default judgment and entry of judgment. A different judge allowed the former motion and denied the latter motion on June 21, 2019. The defendant timely filed his appeal on June 27, 2019. In his appeal, the defendant argues that the trial court erred in entering a default judgment against him as a result of his failure to appear for the jury trial on March 28, 2019, arguing that the court was without authority to do so. The defendant also argues that the court abused its discretion in denying his motion to vacate the

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default judgment.

Standard of review. The entry or removal of default judgments is a matter of case management and lodges within the sound discretion ofthe presiding trial judge. On appeal, therefore, a complaining party must show an abuse of discretion by the entry of the default judgment pursuant to Rule 55(b)(2) of the Massachusetts Rules of Civil Procedure or by the denial of a motion to remove or grant relief from a default judgment as authorized by Mass. R. Civ. P. 55(c) and Mass. R. Civ. P. 60(b). See Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 805-806 (2002); Greenleaf v. Massachusetts Bay Trans. Auth., 22 Mass. App. Ct. 426, 429 (1986).

Discussion. The court's entry of default herein is analogous to the Appeals Court's holding in the unpublished decision of Murray v. Murphy, No. 17-P-459 (April 5, 2018). In Murray, plaintiff's counsel appeared for trial as scheduled at which time counsel informed the court that the plaintiff was unable to attend the trial as a result of her daughter having gone into labor the night before and was likely to give birth within the next forty-eight hours. As a result, plaintiff's counsel requested a continuance, which the court denied. In addition to denying the continuance request, the court sua sponte dismissed the plaintiff's complaint with prejudice even though plaintiff's counsel was prepared to go forward with the trial without his client being present, reasoning that the plaintiff was a necessary witness at her own trial. Id., slip op. at 1-2.

In her appeal, the plaintiff challenged the court's refusal to give her a chance to prove her case with the evidence available to her. Although the court stated that the case was being dismissed for the plaintiff's failure to prosecute, it effectively issued a directed verdict against the plaintiff without hearing her available evidence. The Appeals Court agreed with the plaintiff that dismissal was improper basing its decision, in part, on there being no court order or rule of law that required that the plaintiff herself attend the trial. Id., slip op. at 2.

Moreover, the Appeals Court emphasized that although it was reluctant to interfere with a trial judge's management of her busy trial docket, "[c]alendar clearance cannot be pursued in ways that undercut the very purpose for which courts exist, to try cases on their merits and render justice in accordance with the substantial rights of parties ready for trial." Id., slip op. at 3, quoting Dewing v. J.B. Driscoll Ins. Agency, 30 Mass. App. Ct. 467, 472 (1991).

In the present appeal, no court order existed requiring the defendant to appear for trial as scheduled. Although not ideal, defendant's counsel could have attempted to defend the case without the defendant being present at the trial. Counsel was deprived of that opportunity as a result of the defendant being defaulted. As a result of the default, defendant's counsel was foreclosed from defending the case. Moreover, the judge effectively resolved the plaintiff's case on the merits as a matter of law without a formal record or a developed sense of what the evidence would show. It is this Division's opinion that where a party fails to appear at trial but nonetheless is represented by counsel who is present when the case is called, that party cannot be defaulted in the matter. Unless a party to an action is subpoenaed or ordered by the court to appear for trial and that party fails to so appear, the party can be represented at trial by his or her attorney for the purpose of avoiding entry of default or dismissal. Further, we give weight to the strong judicial preference for seeing cases dealt with on the merits rather than by default. Scannell v. Ed. Ferreirinha & Irmao, Lda., 23 Mass. App. Ct. 465, 470 (1987), citing 11 C.A. Wright & A.R. Miller, Federal Practice & Procedure § 2857, at 157-161 (1973 & Supp. 1986).

We conclude that the judge's default of the defendant was error. In light ofour conclusion, we need not address the defendant's alternative arguments. We therefore vacate the judgment and return this case for trial.