Leyton USA, Inc. v. Coc Aerospace, Inc.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-311

LEYTON USA, INC.

vs.

COC AEROSPACE, INC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The primary issue in this appeal is whether a Superior

Court judge abused her discretion in entering a default judgment

for the plaintiff, Leyton USA, Inc. (Leyton), and against the

defendant, Commerce Overseas Corporation, doing business as COC

Aerospace, Inc. (COC). COC argues, inter alia, that the record

does not support the judge's determination that COC's alleged

discovery violations were made willfully and in bad faith, the

judge abused her discretion in denying COC's motion for

reconsideration,1 the judge erred in failing to conduct a damages

1As discussed further below, COC did not appeal from the
order denying the motion for reconsideration.
assessment hearing, and the judgment amount was excessive. We

affirm.

Background. COC is a company engaged in developing

advanced technologies related to extending the life of aging

aircrafts. Leyton is a consulting firm that provides, among

other things, tax advice to research-oriented entities regarding

the maximization of research and development tax credits. On or

about January 25, 2019, COC and Leyton entered into a written

engagement agreement (contract) providing, in essence, that

Leyton would analyze COC's research projects for certain tax

years and identify research and development tax credits for COC,

and COC would pay Leyton a fee equal to twenty-five percent of

the identified tax credits. On June 17, 2019, Leyton provided a

report to COC purporting to identify a total of $236,673.19 in

tax savings, along with two invoices totaling $59,168.30. COC

disputed the validity of the contract, and the amount owed, and

refused to pay the invoices. On December 7, 2020, Leyton filed

a complaint against COC in the Superior Court claiming breach of

contract. On October 8, 2021, COC filed its answer and

counterclaims for fraud, breach of contract, and rescission.2

2 COC labeled its responsive pleading as its "answer,
affirmative defenses, and cross-claims." It is not disputed,
however, that the "cross-claims" constituted counterclaims under
the Massachusetts Rules of Civil Procedure. See Mass. R.
Civ. P. 13, as amended, 423 Mass. 1405 (1996).

2
As the litigation proceeded, COC failed to comply with

various discovery requests propounded by Leyton. This caused

Leyton to file a series of motions to compel, which were allowed

by a Superior Court judge (first judge). Nonetheless, COC

continued to ignore or failed to "fully or satisfactorily"

comply with various discovery requests and the court orders.3 In

addition, COC's chief executive officer and owner, Christopher

J. Garville, testifying as COC's designee pursuant to Mass. R.

Civ. P. 30 (b) (6), as appearing in 489 Mass. 1401 (2022), left

the deposition three hours after it commenced and before it had

been completed because, in his words, "I have to run my company.

I've got to support my business and my family, but I don't have

anymore time." After Leyton filed a motion to compel testimony,

the parties ultimately rescheduled the continuation of the rule

30 (b) (6) deposition. A few days prior to the continued

deposition, COC's counsel informed Leyton's counsel that "Mr.

Garville will make himself available for the deposition[]

. . . . To minimize his costs, Mr. Garville has asked me not to

attend the deposition." When the deposition commenced a few

3 We need not delineate the myriad failures, partial
compliance, or noncompliance by COC regarding its discovery
obligations. Instead, we note that the record supports the
first judge's findings and determination that COC failed to
"fully or satisfactorily" comply with its discovery obligations
and multiple court orders.

3
days later, Garville refused to proceed because his "counsel is

not present."

On March 1, 2022, Leyton served its motion for summary

judgment on COC. Prior to the deadline for COC to serve its

opposition to the motion, COC's counsel filed a motion to

withdraw. Following a hearing on the motion to withdraw, a

different Superior Court judge (second judge) set a deadline of

September 8, 2022, for COC to obtain new counsel. COC failed to

meet the deadline, and received an extension to November 16,

2022, which was the date set for a hearing on the motion for

summary judgment. On that date, new counsel entered an

appearance for COC and requested additional time to file an

opposition to the motion. The second judge then issued an order

in which she discussed many of COC's failures to comply with its

discovery obligations, and stated as follows:

"[P]ermitting COC to submit any materials in opposition to
summary judgment when it is in egregious violation of its
discovery obligations would be grossly unfair to Leyton.
The Court has an interest in seeing this case resolved on
its merits; at the same time, COC's violation of its
discovery obligations and the Court's discovery orders --
most of which occurred while it was represented by counsel
-- cannot be countenanced." (Footnote omitted.)

As a result of COC's conduct, the second judge issued an order

that required COC to produce documents identified in Leyton's

motion to compel; ordered Garville to resume and complete his

rule 30 (b) (6) deposition; set a renewed schedule for serving

4
and filing summary judgment papers; held in abeyance a motion

for sanctions filed by Leyton, "pending further proceedings";

and ordered that "[i]f COC does not complete any of the actions

required of it . . . by the assigned deadline, then Leyton may

file . . . a Motion for Judgment by Default for Failure to

Comply with this Order . . . ."

On March 29, 2023, after COC failed to provide all of the

requested documents and Garville failed to prepare for his rule

30 (b) (6) deposition within the meaning of the rule and the

spirit of the second judge's order, Leyton filed a second motion

for default judgment.4 On May 10, 2023, the first judge held a

hearing on the second motion for default judgment. On August 2,

2023, she issued a comprehensive memorandum and order allowing

the motion, concluding in relevant part,

"[Leyton's] Second Motion for Judgment by Default for
Failure to Comply with Court Orders is ALLOWED. [Leyton]
is entitled to judgment in its favor on its single breach
of contract claim against [COC] due to [its] continued
discovery violations that were made wilfully and in bad
faith. Judgment shall enter in favor of [Leyton] and
against [COC] on [Leyton's] breach of contract claim. It
is further ORDERED that [COC]'s counterclaims against
[Leyton] be DISMISSED.

4 The motion for default judgment was styled as Leyton's
"Second Motion for Judgment by Default for Failure to Comply
with Court Orders." The record before us does not clearly
establish the filing of the first motion for default judgment;
however, Leyton did request that judgment enter in its favor in
its earlier-filed motion for sanctions. To be consistent with
the trial court docket and orders, we use the term "second
motion for default judgment" herein.

5
"Counsel shall appear at a conference to be scheduled by
the Clerk to inform the Court with regard to scheduling a
hearing for assessment of damages. In addition, [Leyton]
shall file a petition for attorney's fees and costs."

On September 5, 2023, COC filed a petition pursuant to

G. L. c. 231, § 118, seeking review of the first judge's order

allowing the second motion for default judgment. A single

justice of this court dismissed the petition because it was not

timely filed within the thirty-day jurisdictional time limit.

On September 29, 2023, COC filed a motion for

reconsideration in the Superior Court. On October 12, 2023,

while COC's motion for reconsideration was pending, Leyton filed

a "Notice of Hearing on Assessment of Damages/Default Judgment."

On December 4, 2023, a third Superior Court judge (third judge)

allowed Leyton's petition for attorney's fees and assessment of

damages. On December 5, 2023, a "Judgment by Default upon

Assessment of Damages" entered, awarding Leyton $237,183.57,

inclusive of damages, attorney's fees, costs, and interest.

On January 3, 2024, COC filed a notice of appeal from the

judgment. On January 10, 2024, COC filed a motion to vacate the

judgment and schedule an assessment of damages hearing. The

first judge denied that motion on January 12, 2024. Also on

January 12, 2024, the first judge denied COC's motion for

reconsideration. COC did not file an appeal therefrom.

6
Discussion. COC contends, in essence, that the first judge

erred in entering the default judgment because there was no

evidence of deliberate or willful disregard of court orders by

COC, that the first judge erred in relying exclusively on false

or misleading representations by Leyton's counsel to justify the

default judgment, and that even if a sanction was necessary, a

lesser one was available.5 The claims are unavailing.

Where "a party fails to obey an order to provide or permit

discovery," a judge may impose sanctions up to and including

"dismissing the action." Mass. R. Civ. P. 37 (b) (2) (C), as

amended, 390 Mass. 1208 (1984). Such dismissal is an "extreme

sanction," which generally must be "predicated on a finding of

wilfulness or bad faith." Keene v. Brigham & Women's Hosp.,

Inc., 439 Mass. 223, 236 (2003). Our review of discovery

sanctions, including defaults, is governed by the well-

established abuse of discretion standard. See Greenleaf v.

Massachusetts Bay Transp. Auth., 22 Mass. App. Ct. 426, 429

(1986). "We do not consider [a judge's] discretion abused

unless its exercise has been characterized by arbitrary

5 COC also claims that the judgment was "procedurally
defective" because it was entered on a "form that states that
COC failed to answer or otherwise defend," which is "clearly
erroneous." Assuming arguendo that that was a "defect," COC
makes no argument that it suffered prejudice, and provides no
authority to support the proposition that such a defect, without
more, requires reversal or warrants appellate relief.

7
determination, capricious disposition, whimsical thinking, or

idiosyncratic choice." Id. See L.L. v. Commonwealth, 470 Mass.

169, 185 n.27 (2014) (abuse of discretion occurs where judge

made clear error of judgment in weighing factors relevant to

decision "such that the decision falls outside the range of

reasonable alternatives").

Here, we discern no abuse of discretion. Following a

hearing on Leyton's second motion for default judgment, the

first judge issued a comprehensive memorandum and order

delineating the myriad failures by COC to comply with discovery

requests and orders. The record supports the first judge's

findings that COC refused to provide documents sought by Leyton;

failed to comply with several court orders regarding discovery;

failed to provide a prepared designee for depositions pursuant

to Mass. R. Civ. P. 30 (b) (6); forced Leyton to file repeated

motions to compel, which were allowed or unopposed; and acted in

a manner from which bad faith could be (and indeed was)

inferred. Furthermore, COC's principal told counsel to refrain

from attending his deposition but then refused to proceed with

the deposition because counsel was not present.6

6 COC disputes the accuracy of the first judge's findings
with respect to his refusal to participate in the continued
deposition. We have reviewed the entire record and cannot
conclude that the judge's findings are clearly erroneous or
unsupported by the record.

8
In addition, the first judge did not erroneously rely on

Leyton's representations in making her decision. Rather, her

findings reflect consideration of the myriad filings and rulings

in the record. Moreover, the first judge's conclusions were

supported by the second judge's written findings and order --

likewise supported by the record before us -- that COC violated

"its discovery obligations and the Court's discovery orders --

most of which occurred while it was represented by counsel."

Furthermore, the first judge's decision not to impose a

lesser sanction was not an abuse of discretion. As discussed

above, the defendant repeatedly failed to comply with discovery

requests and court orders and had been "warned [] that this

outcome could occur if discovery violations continued." Even if

a lesser sanction could have been devised, "it is not our

province to substitute our judgment for that of the judge."

Short v. Marinas USA Ltd. Partnership, 78 Mass. App. Ct. 848,

853 (2011). This is not a case where the first judge failed to

consider other options or ignored the gravity of the sanction

ultimately imposed. To the contrary, she "recognize[d] that

entering default judgment is the ultimate sanction and [did] not

take this option lightly." Her thorough and reasoned analysis

reflects consideration of the requisite factors, and we do not

discern any abuse of discretion on the record before us.

9
COC also argues on appeal that the first judge abused her

discretion in denying its motion for reconsideration. In that

motion, COC argued that certain key facts were not before the

first judge when she ruled on the second default motion; that

judgments by default are disfavored; and that a lesser sanction

was available. COC, however, did not file a notice of appeal

from the denial of the motion to reconsider.7 A postjudgment

order on a motion to reconsider is treated the same as any order

on a postjudgment motion, and a notice of appeal specifically

including the denial of that motion must be filed to preserve

the issues raised therein. As a result, these arguments are not

properly before us. See Visnick v. Hawley, 69 Mass. App. Ct.

901, 902 (2007).8

The defendant also appears to argue that it suffered

prejudice from the Superior Court's failure to hold an

assessment of damages hearing. Where the damages, as here,

involved claims for a sum certain (or were susceptible of

7 Although the default judgment entered prior to the first
judge's ruling on the motion for reconsideration, COC was still
required to file a notice of appeal from that denial to raise
that issue on appeal. See Custom Kits Co. v. Tessier, 97 Mass.
App. Ct. 385, 388 n.7 (2020); Mass. R. A. P. 4 (a) (3), as
appearing in 481 Mass. 1606 (2019). See also Mass. R. A. P.
3 (c) (1), as appearing in 491 Mass. 1601 (2023).

8 Many of the issues raised on appeal were raised in the
Superior Court solely by way of COC's motion for
reconsideration, and thus are not properly before us.

10
mathematical calculation), the claim has no merit. See

generally National Grange Mut. Ins. Co. v. Walsh, 27 Mass. App.

Ct. 155, 157-158 (1989).9

Judgment affirmed.

By the Court (Blake, C.J.,
Neyman & Grant, JJ.10),

Clerk

Entered: March 14, 2025.

9 Leyton contends that attorney's fees on appeal are
warranted by the contract, which includes a provision requiring
COC to pay "costs of collection (including legal fees)" for
payments not timely made by COC. Leyton shall file a verified
and itemized application for such fees and costs within fourteen
days of the date of this decision, and COC will have fourteen
days thereafter in which to file any opposition to the amounts
requested. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).

10 The panelists are listed in order of seniority.

11