GLORIA HERMANSON vs. MARK SZAFAROWICZ.

BOTSFORD, J. This case arose out of a boundary dispute between the plaintiff, Gloria Hermanson, and the defendant, Mark Szafarowicz. The issues on appeal, however, have little connection to the boundary dispute but concern a default judgment that entered against the defendant in 2007. We must address (1) whether there is a conflict between Mass. R. Civ. P. 54 (c), 365 Mass. 820 (1974), which provides that a default judgment may not exceed the amount claimed in the demand for judgment, and implicitly requires a plaintiff to state a specific amount of damages, and G. L. c. 231, § 13B (§ 13B), which prohibits a plaintiff from including in her complaint the "monetary amount claimed"; and (2) the validity of the default judgment that entered. We conclude that there is a conflict between rule 54 (c) and § 13B, indicating a need to amend the rule, and that the motion for relief from judgment, insofar as it sought to remove the default entered against the defendant, see Mass. R. Civ. P. 55 (c), 365 Mass. 822 (1974), was properly denied. We further decide, however, that the default judgment must be vacated and the case remanded for a hearing on damages.

1. Background. [Note 1] The plaintiff owns a parcel of undeveloped land known as lot no. 1, Burnap Street, in Auburn. The plaintiff's lot abuts a similarly sized parcel of land, known as lot no. 2, Burnap Street, owned by the defendant. At some time in early 2002, in anticipation of building a home on his land, the defendant began to clear and prepare lot no. 2. In late February, 2002, however, the defendant ceased work on the project due

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to mental health issues; he was hospitalized for a number of days in March of that same year and until June was on prescription medications and unable to work.

In April, 2002, the plaintiff had her land surveyed and learned that the defendant, during his excavations, had removed trees from her parcel and had brought in fill for a driveway that was placed on her land. In response, the plaintiff commenced this action in the Superior Court, filing a "verified complaint for declaratory relief and to establish title" on May 6, 2002.

The plaintiff's complaint sought the following relief: (1) a declaration that she holds title in fee simple to her parcel; (2) an order requiring the defendant to (a) cease all excavation being done on the plaintiff's lot, and (b) restore the grade of her lot to the grade that existed before the defendant brought in fill; (3) a permanent injunction prohibiting the defendant from interfering with the plaintiff's enjoyment of her property, "including the removal of trees and installation of fill"; (4) an award of damages for the value of the trees that the defendant removed from the plaintiff's property; (5) damages "for the loss of a sale that the [p]laintiff had arranged but was not able to go through with due to the boundary dispute created by the [d]efendant"; and (6) costs and attorney's fees. She did not include in her complaint a request for a specified amount of damages, nor did she list any damage amounts on her civil action cover sheet filed pursuant to Rule 29 of the Rules of the Superior Court (2008-2009).

Service of the complaint was made on the defendant on May 25, 2002, at his last and usual address with proof of service returned on July 26, 2002. The defendant did not file an answer or other response to the complaint; in their respective affidavits, the defendant and his wife state that they have no recollection of being served with it. The docket entries indicate that neither the plaintiff nor the court undertook any action with respect to the case from May of 2002 until 2007, except for the payment by her attorney of an annual civil litigation fee in 2004 and the filing of an appearance of successor counsel by the plaintiff in 2005.

On January 29, 2007, a default entered against the defendant. [Note 2] On March 1, an order entered dismissing the plaintiff's

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complaint without prejudice for failure to comply with a court order dated January 29, 2007. [Note 3] The defendant acknowledges receipt of notice of this dismissal from the court, but not of any notice of the default that entered against him on January 29. Later in March, the plaintiff successfully moved to vacate the judgment of dismissal, and then filed a motion for assessment of damages against the defendant. In her motion and accompanying affidavits (one of her own and an affidavit of a real estate appraiser), the plaintiff described her damages as including $50,000 for "[d]iminution of value of my property," and survey and appraisal expenses of $3,239.02, for a total of $53,239.02; the plaintiff also sought an award of attorney's fees in the amount of $4,000.

On June 29, 2007, a judge in the Superior Court (first motion judge), without holding a hearing, allowed the plaintiff's motion for assessment of damages in "the [amounts] set forth in [plaintiff's] affidavit." A default judgment pursuant to Mass. R. Civ. P. 55 (b) (2), 365 Mass. 822 (1974), [Note 4] entered on July 6, 2007, in the amount of $53,239.02 in damages, plus $33,011.40 in statutory interest calculated from the date of the filing of the complaint in May, 2002, $4,000 in attorney's fees, and costs. The

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total was $90,471.67. The court mailed a copy of the default judgment to the defendant on the same day, but the defendant states in his affidavit that he "heard nothing further about the case until August 2007, when [he] received notice that the Sheriff had levied upon [his] property for the amount of $91,631.70." [Note 5]

On March 24, 2008, the defendant, through his attorney, filed a motion for relief from the default judgment pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), [Note 6] attaching his own affidavit, an affidavit of his wife, medical bills from 2002, and land and arborist appraisals. The plaintiff opposed the motion, and after a hearing, a different Superior Court judge (second motion judge) denied it. After his motion for reconsideration was denied, the defendant appealed from the denial of his rule 60 (b) motion to the Appeals Court. We transferred the case on our own motion.

2. Discussion. a. Relief from judgment: rule 54 (c) and § 13B. Rule 54 (c) provides:

"A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings."

By its terms, the first sentence of the rule precludes a plaintiff

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who seeks a default judgment from recovering any money damages over the amount or amounts stated specifically in the complaint. In effect, therefore, the rule requires a plaintiff who seeks to recover money damages to include the amount of the damages sought within her claims for relief, see Mass. R. Civ. P. 8 (a), 365 Mass. 749 (1974), [Note 7] or be barred from any recovery of damages at all. Section 13B, inserted by St. 1986, c. 708, § 5, with exceptions not relevant here, precludes a plaintiff from including in a complaint the "monetary amount claimed." This section reads as follows:

"No complaint in any civil action shall contain an ad damnum or monetary amount claimed against any defendant, unless such ad damnum or monetary amount claimed indicates damages which are liquidated or ascertainable by calculation and a statement under oath by a person having knowledge thereof is attached to such complaint setting forth the manner in which the amount of said damages was calculated. For the purposes of this section complaint shall include a claim, crossclaim, or counterclaim."

Before the enactment of § 13B, we determined that in the event of a defendant's default, a plaintiff's entitlement to recover damages in a default judgment was limited to the amount originally requested in the complaint. Scannell v. Ed. Ferreirinha & Irmao, Lda., 401 Mass. 155, 161-164 (1987) (Scannell) (award of default judgment damages originally entered in amount of $1,750,000 but was reduced to $800,000, amount plaintiff originally prayed for in demand for judgment). See Buffum v. Rockport, 36 Mass. App. Ct. 377, 381-382 (1994); Jabaily v. Cullen, 18 Mass. App. Ct. 943, 945 (1984). The Scannell decision referenced § 13B, but because the statute had been enacted after entry of final judgment in that case, the court anticipated but did not directly address the conflict that would arise between § 13B and rule 54 (c). Id. at 164-165 n.9.

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The defendant, without any citation to or mention of § 13B in his brief, asserts that he is entitled to relief from the default judgment against him because the provisions of rule 54 (c) render the judgment void. See Mass. R. Civ. P. 60 (b) (4). Specifically, the defendant claims that in violation of rule 54 (c), the plaintiff was awarded money damages in an amount exceeding that contained in her complaint, a pleading that did not include any damage figure at all; that such a violation of rule 54 (c) is jurisdictional; and that accordingly the default judgment is "null and void."

The defendant's argument has no merit. Given the unliquidated nature of the plaintiff's claims, § 13B operated to prohibit the plaintiff from including in her complaint a specified amount of damages, and the plaintiff's complaint complied with § 13B's strictures. As a consequence, the default judgment award that included over $90,000 in damages necessarily violated rule 54 (c) because the judgment exceeded "in amount that prayed for in the demand for judgment." Where there is such an irreconcilable conflict between a court rule and a statute, the statute supersedes the rule. [Note 8] See Senior Hous. Props. Trust v. HealthSouth Corp., 447 Mass. 259, 271-272 (2006), and cases cited. Therefore, notwithstanding rule 54 (c), the plaintiff was not required to include in her complaint a request for a specific amount of damages, and there is no basis to find error on this ground. [Note 9]

The defendant briefly asserts that the default judgment in this case also may violate rule 54 (c) -- and be void as a consequence

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-- because the plaintiff's complaint was one for declaratory relief, not damages. Therefore, the default judgment awarding damages, contrary to the command of the rule, was "different in kind from . . . that prayed for in the demand for judgment." Mass. R. Civ. P. 54 (c), first sentence. The claim fails. While the plaintiff's complaint does seek declaratory (as well as injunctive) relief, it also seeks damages -- compensation for the trees allegedly removed by the defendant and for the plaintiff's alleged loss of a sale of her lot caused by her boundary dispute with the defendant. Because the plaintiff both sought and was awarded damages, the judgment was not "different in kind" within the meaning of the current rule 54 (c), and there was no error. See Plasko v. Orser, 373 Mass. 40, 43-44 (1977).

b. Relief from judgment: other grounds. The defendant urges that even if the plaintiff was not required to include a monetary amount of damages in her demand for judgment, he is still entitled to relief under rule 60 (b) (1) for excusable neglect, or under rule 60 (b) (6) because of the extraordinary circumstances presented by this case. Accordingly, the defendant argues, the second motion judge abused his discretion in denying the motion for relief from judgment. Insofar as the second motion judge treated the defendant's rule 60 (b) motion as one seeking relief from the judgment itself, see Mass. R. Civ. P. 55 (c), 365 Mass. 822 (1974), [Note 10] the defendant's claim of error again lacks merit.

Rule 60 (b) (1) authorizes relief from a final judgment for mistake, inadvertence, or excusable neglect. See note 6, supra. The burden to establish one of these conditions is on the defendant. See Gath v. M/A-Com, Inc., 440 Mass. 482, 497 (2003) ("[defendant] bears the considerable burden of showing that the mistake was indeed excusable, and not due simply to its own carelessness"). See also Scannell, 401 Mass. at 158; Cullen Enters., Inc. v. Massachusetts Prop. Ins. Underwriting Ass'n, 399 Mass. 886, 894 (1987). In Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 430-431 (1979), the Appeals Court set out several factors that may inform the court's decision

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concerning whether the defendant has met his burden under this rule. [Note 11]

In his denial of the motion for relief from default judgment, the second motion judge ruled that the defendant had not met his burden under rule 60 (b) (1), nor established that he was entitled to relief based on the Berube factors. We have considered the defendant's arguments relating to these factors -- primarily that the defendant was mentally and physically incapacitated at the time in 2002 when the plaintiff filed this action and served the complaint; that he consulted an attorney when he first learned about the lawsuit in March, 2007, and was told that it had been dismissed; that he acted promptly when he learned the sheriff had levied on his property; and that he has a meritorious defense -- but find no basis to overturn the judge's determination that the defendant did not demonstrate excusable neglect. The second motion judge was not bound to accept the defendant's self-serving statement that the only notice he received of the lawsuit was the March, 2007, judgment of dismissal of the plaintiff's complaint, and that he received no additional notice, either before or after the (temporary) dismissal, until the sheriff's levy on his property in August of 2007. See Scannell, 401 Mass. at 159 (although affidavit stated defendant believed its insurer would defend lawsuit, judge could have inferred that defendant was not relying on its insurer to defend it, or that reliance on insurer was unreasonable). Moreover, the defendant did not file his motion for relief from judgment until late March, 2008, seven months after the levy occurred. The second motion judge had considerable discretion in ruling on the defendant's motion for relief under rule 60 (b) (1), see, e.g., Parrell v. Keenan,

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389 Mass. 809, 815 (1983), and there was no abuse of discretion in his denial of it.

Rule 60 (b) (6) authorizes relief from a final judgment in cases involving "extraordinary circumstances," Owens v. Mukendi, 448 Mass. 66, 71 (2006), quoting Bromfield v. Commonwealth, 400 Mass. 254, 257 (1987), or "whenever such action is appropriate to accomplish justice," Parrell v. Keenan, 389 Mass. at 815, quoting Klapprott v. United States, 335 U.S. 601, 615 (1949). Insofar as the defendant relies on his medical condition in the spring of 2002 as grounds for relief under this rule -- as he did in claiming relief under rule 60 (b) (1) -- we again conclude the second motion judge did not abuse his considerable discretion in denying the motion. However, the defendant also argues that he is entitled to relief under rule 60 (b) (6) because of "the enormous disparity" between the damages awarded and what the defendant claims are the actual damages. This portion of the defendant's argument relates not to relief from the default but from the actual judgment. The record before us contains affidavits with differing descriptions of the nature and extent of the defendant's incursions on the plaintiff's land and, therefore, differing assessments of the monetary damages involved. We have no way of determining which, if any, affidavit presents an accurate view of the harm caused by the defendant, and certainly we are not in a position to determine whether the damage figure associated with the alleged property damage is excessive. Nevertheless, the damages assessed by the first motion judge and the manner in which they were assessed present a number of issues that call into question the validity of that assessment. For the reasons we discuss next, we vacate the default judgment and remand the case for a new hearing on damages.

c. Assessment of damages. Rule 55 (b) (2) provides in part that in all cases where a plaintiff or other party is entitled to a default judgment, but the claim is not one for a sum certain or that can be computed with certainty, [Note 12] the court (acting through a judge rather than a clerk) can enter the default judgment and assess the damages. See J.W. Smith & H.B. Zobel, Rules Practice

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§ 55.4 (2d ed. 2007). Where, as was true in this case, a defendant has not appeared in the action, rule 55 (b) (2) expressly does not require a plaintiff to give notice to the defendant of an application for a default judgment. Nevertheless, the rule goes on to provide that, regardless of whether the defendant has appeared, the judge may conduct a hearing whenever "it is necessary . . . to determine the amount of damages or to establish the truth of an averment by evidence" (emphasis added).

In addition, while rule 55 (b) (2) itself does not specifically address whether a judge must make findings in assessing damages, the Appeals Court, following Federal cases interpreting Fed. R. Civ. P. 55 (b) (2) and Fed. R. Civ. P. 52 (a), has concluded that the Massachusetts counterparts to these rules -- rule 55 (b) (2) and Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996) [Note 13] -- should be construed to require findings of fact when a judge is determining damages in connection with a default judgment. Kenney v. Rust, 17 Mass. App. Ct. 699, 705 (1984). See Bissanti Design/Build Group v. McClay, 32 Mass. App. Ct. 469, 471-472 (1992). We generally follow the Federal courts' interpretation of Federal rules of civil procedure in construing our own identical rules. See, e.g., Rollins Envtl. Servs., Inc. v. Superior Court, 368 Mass. 174, 179-180 (1975). See also Strom v. American Honda Motor Co., 423 Mass. 330, 335 (1996), quoting Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 800 (1987) ("Because the Massachusetts Rules of Civil Procedure are patterned after the Federal rules, we interpret our rules consistently with the construction given their Federal counterparts . . ."). We agree with the Appeals Court that it makes sense to do so here, and conclude that rule 55 (b) (2) is properly interpreted as requiring some factual findings concerning the basis of the damages or other relief included within the default judgment. [Note 14] See, e.g., Securities & Exch. Comm'n v. Management Dynamics, Inc., 515 F.2d 801, 813-814 (2d Cir. 1975).

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In the present case, the first motion judge did not hold a hearing, but simply endorsed the plaintiff's motion to assess damages as "allowed in the [amounts] set forth in [the plaintiff's] affidavit." This was error. The affidavits accompanying the plaintiff's motion presented a number of substantial questions concerning the damages being sought for which the motion and its accompanying papers did not provide answers. [Note 15] Some type of hearing on damages was called for, at least to the extent of an inquiry of the plaintiff's counsel concerning the basis for the damages claimed, and perhaps to hear testimony from the plaintiff herself. See 10A C.A. Wright, A.R. Miller, M.K. Kane, Federal Practice and Procedure § 2688, at 58 (1998) ("The hearing is not considered a trial, but is in the nature of an inquiry before the judge"). Moreover, the judge provided no factual findings on which the assessment of damages was based.

The plaintiff suggests that even if findings were required, as the Appeals Court determined in Kenney v. Rust, 17 Mass. App. Ct. at 705-706, there is no need to remand for findings in this case. In contrast to Kenney, however, the default judgment in this case was entered without a hearing and on the basis of a single affidavit that, as we previously identified, contains allegations of damages not raised in the complaint and that may not be supportable. A remand is called for. See Bissanti Design/Build Group v. McClay, 32 Mass. App. Ct. at 471-472. See also Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53-54 (2d Cir. 1993). Cf. Productora e Importadora de Papel, S.A. de C.V. v. Fleming,

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376 Mass. 826, 832-835 (1978) (default does not concede amount of damages, and defendant is entitled to contest sum put forth by plaintiff).

On remand, the issue of the appropriateness of awarding attorney's fees to the plaintiff is likely to arise; we briefly address it here. The American rule dictates that in the absence of a fee-shifting statute or court rule, a successful party is not allowed to recover its attorney's fees or expenses. John T. Callahan & Sons v. Worcester Ins. Co., 453 Mass. 447, 449 (2009), citing Preferred Mut. Ins. Co. v. Gamache, 426 Mass. 93, 95 (1997). Here, there is no applicable statute or rule that authorizes the shifting of attorney's fees, and therefore the award was in error.

d. A return to Mass. R. Civ. P. 54 (c). As discussed supra, a conflict currently exists between the provision in the first sentence of Mass. R. Civ. P. 54 (c) on damages and G. L. c. 231, § 13B. We refer the issue to the standing advisory committee on the Massachusetts Rules of Civil Procedure to study and to recommend amendments to rule 54 (c). In connection with the referral we add the following.

The first sentence of rule 54 (c), by providing for an effective cap on an award of damages in the case of a default judgment, see Scannell, 401 Mass. at 164 & n.8, serves the purpose of enabling a defendant "to weigh the ascertainable cost of losing by default versus the probable costs of going to trial, and then to choose the less expensive option." Id. at 163. See Marshall v. Stratus Pharms., Inc., 51 Mass. App. Ct. 667, 674 (2001); Buffum v. Rockport, 36 Mass. App. Ct. at 382; Multi Tech., Inc. v. Mitchell Mgt. Sys., Inc., 25 Mass. App. Ct. 333, 336-337 (1988). See also J.W. Smith & H.B. Zobel, Rules Practice § 54.9, at 240 (2d ed. 2007); 10 C.A. Wright, A.R. Miller, & M.K. Kane, Federal Practice and Procedure § 2663, at 166 (1998). Moreover, the rule recognizes that a plaintiff is in the best position to protect against an inadequate damage award. Scannell, supra at 163-164.

The enactment of § 13B in effect supersedes the portion of rule 54 (c)'s first sentence that requires a plaintiff to plead a specific amount of monetary damages, leaving intact only the "different in kind" limitation. Nevertheless, the policies underlying rule 54 (c), discussed in the cases just cited, remain sound. The standing advisory committee may wish to consider whether,

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consistent with § 13B, those policies might continue to be served by an amendment to the rule that would eliminate reference to the "demand for judgment" in the complaint but add a reference to the amount of damages set out in the civil action cover sheet. See Rule 29 of the Rules of the Superior Court; Rule 102A of the District/Municipal Courts Supplemental Rules of Civil Procedure (2008-2009). [Note 16]

3. Conclusion. The entry of default is affirmed, the judgment of default is vacated, and the matter is remanded to the Superior Court for a hearing on damages.

So ordered.