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Ramsdell v. Doliber9/29/2003
was no evidence to support them. If there had been objections to these questions, they would likely have been sustained. Reardon v. Boston Elevated Ry., 311 Mass. 228, 231 (1942). Dorfman v. TDA Indus., Inc., 16 Mass. App. Ct. 714, 718-719 (1983). Cf. Commonwealth v. Fordham, 417 Mass. 10, 20-21 (1994), and Commonwealth v. Wynter, 55 Mass. App. Ct. 337 (2002). Plaintiff's counsel also elicited testimony regarding Arsenault's income from Arsenault's sister on the basis of the dubious foundation that she had "happen to observe, like on a good swordfishing trip, how much [Arsenault] could make." Although the role these prejudicial factors played in the relatively large verdict the jury ultimately returned cannot be precisely determined, the presence of experienced counsel likely would have prevented much of the objectionable testimony and behavior.
In light of the potential prejudice to a party who is without fault in his attorney's failure to appear, alternatives short of requiring that the party proceed unrepresented during trial should be considered. Here, the judge could, for example, have determined whether to enter a default or a default judgment on the issue of liability. Entry of a default or a default judgment would have imposed upon the defendant's attorney the burden, consistent with Mass.R.Civ.P. 55(c), 365 Mass. 823, 828 (1974), to remove the default or judgment or, failing in that effort, to proceed to a hearing to assess damages. See Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 810 (2002) (effect of default judgment was to leave open only the question of damages). Cf. Britt v. Rosenberg, 40 Mass. App. Ct. 552, 554 (1996).
Alternatively, the judge could have granted a continuance and imposed upon the attorney any costs to the opposing party attendant on the delay. See Rule 18 (" n . . . granting a postponement, . . . costs may be awarded and terms imposed in the discretion of the court") and Rule 21 of the Rules of the Superior Court (1974) ("When a case is postponed on the motion of one party, against the objection of the other, the granting of the motion may be upon the condition precedent that the moving party shall pay to the adverse party all his costs and such expenses as the court may allow . . .").
Because it is apparent that the trial judge did not give adequate consideration to the factors we have described, we vacate the order denying the motion for a new trial and remand for a hearing and reconsideration of the motion. Menard v. McCarthy, 410 Mass. 125, 129-130 (1991) ("We recognize that a trial judge's decision to grant or deny a new trial should be reversed only for a clear abuse of discretion . . . but we think that it is clear in this case that . . . injustice resulted").
Conclusion.
The denial of the defendant's motion for a new trial is vacated and the case is remanded to the Superior Court for reconsideration of the defendant's motion for a new trial. On remand, the motion judge is to conduct a hearing to determine whether a new trial should be granted and whether other sanctions would more appropriately address Mr. Davis's failure to represent his client on the first day of trial, in light of the factors outlined in this opinion. The judge may also give consideration to any other relief appropriate in the circumstances. Because of our decision, we do not address the defendant's remaining claims.
Order denying motion for a new trial vacated.
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