Joseph Digangi, Jr. v. Robert Quinn.

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-1093

JOSEPH DIGANGI, JR.

vs.

ROBERT QUINN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Robert Quinn, appeals from an order of the

Superior Court denying his motions to vacate or reconsider a

default judgment and damages assessment entered in favor of the

plaintiff, Joseph DiGangi, Jr. Quinn argues that the Superior

Court lacked subject matter jurisdiction and the judge failed to

properly apply certain factors under Mass. R. Civ. P. 60 (b),

365 Mass. 828 (1974) ("Rule 60 (b)"). We affirm.

Background. We recount the pertinent allegations of the

complaint, which on the entry of default under Mass. R. Civ. P.

55 (b), as amended, 477 Mass. 1401 (2017), are treated as true

for purposes of establishing liability. See Danca Corp. v.

Raytheon Co., 28 Mass. App. Ct. 942, 943 (1990). In 2015,
DiGangi and Quinn formed a limited liability corporation, Urban

Core, to develop real estate, with each holding a fifty percent

interest in the company. Shortly after the company's formation,

Quinn began behaving erratically and was routinely absent. In

2017, to make up for the fact that he had not been working,

Quinn suggested that Urban Core undertake a development

opportunity, for which he proposed to bear the full investment

cost and split the profit with DiGangi. The project, referred

to as 55 Hull Street, was to convert a multifamily building into

two separate condominium units. As a result, Urban Core

acquired 55 Hull Street, and obtained a loan to fund its

redevelopment, which was personally guaranteed by both Quinn and

DiGangi. Quinn initially managed the project, but he soon

reverted to his prior behavior, became nonresponsive, and

ignored the needs of the project. DiGangi took over the project

but was unaware that Quinn had made certain promises to the

project's abutters that were unfulfilled. For example, Quinn

had promised the abutters that Urban Core would install a brick

façade on the building so that the condominium units would blend

into the neighborhood, but he never installed it. Because

Quinn's promises went unfulfilled, the abutters filed three

lawsuits against Urban Core. Also, because of Quinn's

absenteeism, the project was delayed, resulting in an increase

to the interest rate of the loan.

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With his assets at risk due to his personal guarantee of

the redevelopment loan, DiGangi spent his own money to complete

the project. His expenses included paying employee salaries,

litigation costs, including amounts paid to settle the lawsuits,

increased interest payments, and additional miscellaneous

expenses associated with delay caused by Quinn.

After both units of the 55 Hull Street project sold,

DiGangi brought this action against Quinn alleging breach of

fiduciary duty and tortious interference.1 Quinn failed to

defend the action, and a default judgment entered against him in

August 2022. DiGangi filed an amended complaint in November

2022, adding reach-and-apply defendants from whom he sought to

collect the damages owed by Quinn.2 A damages assessment hearing

was held in March 2023, and neither Quinn nor any of the reach-

and-apply defendants appeared. DiGangi requested that the judge

enter a default judgment and award damages in the amount of

$1,296,934.98 with interest. In support of this request,

DiGangi provided the court with an affidavit detailing the

damages he suffered and numerous exhibits specifically

1 The tortious interference claim arose out of Quinn's
interference with DiGangi's ability to obtain a loan for
business he was conducting in connection with a separate company
with which Quinn was not affiliated.

2 DiGangi also obtained an injunction preventing the reach-
and-apply defendants from making disbursements to Quinn.

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accounting for DiGangi's out of pocket expenses. In June 2023,

judgment entered for DiGangi with damages totaling roughly $1.3

million.

In April 2024, Quinn moved to vacate the judgment pursuant

to Mass. R. Civ. P. 55 (b)-(c) and 60 (b). That motion and a

related motion to reconsider certain findings and to reduce the

damages amounts were denied, and this appeal followed.

Discussion. On appeal, Quinn argues first that the

judgment should be vacated because the court lacked subject

matter jurisdiction over the claims because DiGangi lacked

standing to bring them. He also argues that the judge erred in

his analysis of Quinn's motion to vacate pursuant to Rule 60

(b). We take each argument in turn.3

1. Subject matter jurisdiction. Quinn argues that DiGangi

lacked standing to bring his claim of breach of fiduciary duty

directly against him. Instead, he asserts that the claim should

Quinn also argues that DiGangi failed to properly serve
3

process of his first amended complaint because he did not issue
a new summons to Quinn. Pursuant to Mass. R. Civ. P. 5 (a), as
amended, 488 Mass. 1402 (2021), an additional summons for a
defaulted party is required with "any pleading asserting new or
additional claims for relief against [the party]." DiGangi's
amended complaint added reach-and-apply defendants in order to
collect the judgment against Quinn, liability for which was
resolved by his default. Quinn's argument has no merit. No new
claims against Quinn were added, and no additional summons was
required.

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have been brought derivatively on behalf of Urban Core.45 We

disagree. "The question of legal standing is a jurisdictional

matter." Marchese v. Boston Redev. Auth., 483 Mass. 149, 156

(2019), citing Phone Recovery Servs., LLC v. Verizon of New

England, Inc., 480 Mass. 224, 227 (2018). "Where a plaintiff

lacks standing to bring an action, the court lacks jurisdiction

of the subject matter and must therefore dismiss the case."

Marchese, supra, citing Rental Prop. Mgt. Servs. v. Hatcher, 479

Mass. 542, 546-547 (2018). When a party raises the issue of

jurisdiction after the entry of judgment, it is properly treated

as a claim for relief from judgment pursuant to Mass. R. Civ. P.

60 (b) (4), i.e., that the judgment is void. See Sullivan v.

Smith, 90 Mass. App. Ct. 743, 746 (2016). "While most rule

60 (b) motions are addressed to the motion judge's discretion, a

judge has no discretion to deny a request for relief from a void

4 Quinn also argues that his mental illness rendered him
incompetent such that a default judgment could not enter against
him under Mass. R. Civ. P. 55 (b) (2) as a matter of subject
matter jurisdiction. Although Quinn has put forward evidence of
a diagnosed mental illness, he has put forward no evidence that
he was incompetent as defined by G. L. c. 190B. His competency
was therefore no impediment to an entry of default under Mass.
R. Civ. P. 55 (b) (2). "A person is presumed to be competent
unless shown by the evidence not to be competent." Guardianship
of Roe, 383 Mass. 415, 442 (1981).

5 Although Quinn also appears to challenge DiGangi's
standing to bring his tortious interference claim, he offers no
plausible reason why this claim should have been brought by
Urban Core, nor has he provided us with any authority to support
that argument.

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judgment and must vacate it. Consequently, we review de novo

the denial of a rule 60 (b) (4) motion" (citations omitted).

Dumas v. Tenacity Constr. Inc., 95 Mass. App. Ct. 111, 114

(2019).

A plaintiff shareholder lacks standing to assert claims

belonging to a corporation in a direct suit and, rather, "can

only assert them in a shareholders' derivative suit." Symmons

v. O'Keeffe, 419 Mass. 288, 298-299 (1995). Whether a claim may

be pursued in a direct or derivative suit "depends on whether

the harm [the plaintiff] claim[s] to have suffered resulted from

a breach of duty owed directly to [him], or whether the harm

claimed was derivative of a breach of duty owed to the

corporation." International Bhd. of Elec. Workers Local No. 129

Benefit Fund v. Tucci, 476 Mass. 553, 558 (2017) (Tucci). Quinn

argues that he harmed Urban Core only, and points to the fact

that many of the damages DiGangi alleges flowed through the

company. For example, Quinn's actions and inactions resulted in

lawsuits against Urban Core, rather than against DiGangi.

Although Quinn is likely correct that his actions harmed Urban

Core, this fact is not dispositive because a breach can be

against numerous parties at the same time. See, e.g., Selmark

Assocs. v. Ehrlich, 467 Mass. 525, 535 (2014) (terminating

employment was breach of both fiduciary duty and conversion

agreement). The key question is whether DiGangi alleged a harm

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that resulted from the breach of a duty Quinn owed to him,

regardless of whether Quinn also committed a breach of a

different duty to Urban Core. See Tucci, supra at 558.

Here, DiGangi alleged that Quinn committed a breach of the

fiduciary duty he owed directly to DiGangi. The elements of a

breach of fiduciary duty claim are (1) the existence of the

duty; (2) a breach of that duty; (3) damages; and (4) a causal

connection between the breach of duty and the damages suffered.

See Hanover Ins. Co. v. Sutton, 46 Mass. App. Ct. 153, 164

(1999). Quinn and DiGangi, as shareholders of a close

corporation,6 owed each other "substantially the same fiduciary

duty in the operation of the enterprise that partners owe to one

another[, that is,] the 'utmost good faith and loyalty'"

(citations omitted). Pointer v. Castellani, 455 Mass. 537, 549

(2009). In his complaint, DiGangi alleged that Quinn committed

a breach of the fiduciary duty he owed to DiGangi by abandoning

their business venture without warning. DiGangi further alleged

that this breach caused him to incur considerable personal

damages because it resulted in lawsuits against Urban Core,

6 Urban Core is a close corporation because it has a small
number of shareholders, no ready market for its capital stock,
and "substantial majority stockholder participation in the
management, direction and operations of the corporation"
(citation omitted). Brodie v. Jordan, 447 Mass. 866, 868-869
(2006).

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additional financing costs, and delay costs, much of which he

paid personally due to Urban Core's lack of funds.7 These

allegations plausibly stated a claim for which DiGangi could

seek relief directly from Quinn. We are satisfied that each

category of damages DiGangi alleged in his detailed affidavit

were direct damages to DiGangi, rather than derivative.

Accordingly, Quinn's claim under 60 (b) (4) was properly denied

because DiGangi did not lack standing.

2. Quinn's Rule 60 (b) (1) claims. Quinn challenges the

judge's analysis of his claims under Rule 60 (b) (1), arguing

that the judge disregarded factors he was required to consider

as outlined in Berube v. McKesson Wine & Spirits Co., 7 Mass.

App. Ct. 426, 430-431 (1979). We discern no error. "The

resolution of motions for relief from judgment rests in the

discretion of the trial judge. Accordingly, the denial of a

motion under Rule 60 (b) will be set aside only on a clear

showing of an abuse of discretion" (quotations and citations

omitted). Atlanticare Med. Ctr. v. Division of Med. Assistance,

485 Mass. 233, 247 (2020). "An abuse of discretion occurs where

7 The fact that Urban Core incurred debts ordinarily would
not obligate DiGangi to spend his own money. In a typical
situation, any expense DiGangi incurred on Urban Core's behalf
would have made him a creditor of Urban Core. The fact that
DiGangi personally guaranteed the redevelopment loan, however,
meant that his own assets were directly linked to Urban Core's
success.

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'the judge made a clear error of judgment in weighing the

factors relevant to the decision, such that the decision falls

outside the range of reasonable alternatives.'" Wilson v.

Commerce Ins. Co., 496 Mass. 1002, 1002 (2025), quoting

Commonwealth v. Jones, 478 Mass. 65, 69 (2017).

"Rule 60 (b) (1) authorizes relief from a final judgment

for mistake, inadvertence, or excusable neglect. . . . The

burden to establish one of these conditions is on the

defendant." Hermanson v. Szafarowicz, 457 Mass. 39, 46 (2010).

The factors outlined in Berube, 7 Mass. App. Ct. at 430-431,

"may inform the court's decision concerning whether the

defendant has met his burden under this rule." Hermanson, supra

at 46-47. The factors are:

"(1) whether the offending party has acted promptly after
entry of judgment to assert his claim for relief therefrom;
(2) whether there is a showing either by way of affidavit,
or otherwise apparent on the record, that the claim sought
to be revived has merit; (3) whether the neglectful conduct
occurs before trial, as opposed to during, or after the
trial; (4) whether the neglect was the product of a
consciously chosen course of conduct on the part of
counsel; (5) whether prejudice has resulted to the other
party; and (6) whether the error is chargeable to the
party's legal representative, rather than to the party
himself."

Berube, supra at 430-431.

Quinn argues that the judge committed an error of law in

failing to apply factor two because Quinn raised defenses that

DiGangi lacked standing and that the statute of limitations had

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run. The judge properly ignored Quinn's affirmative defenses,

however, because "entry of a default precludes a defendant from

raising affirmative defenses for the first time postdefault,

because a defendant may not rely on an affirmative defense

unless the defense was pleaded." Jones v. Boykan, 464 Mass.

285, 295 (2013). Furthermore, the judge separately evaluated

those of Quinn's defenses that could have resulted in a voided

judgment under Rule 60 (b) 4, i.e., lack of service, standing,

and competency. Accordingly, the judge did not err in

disregarding these defenses in his excusable neglect analysis.

Quinn also argues that the judge erred in concluding that

he failed to establish excusable neglect because the judge did

not consider evidence that Quinn suffers from a mental illness.

Again, that determination is within the sound discretion of the

motion judge. See Atlanticare Med. Ctr., 485 Mass. at 247. The

burden to establish that his mental illness was severe enough to

constitute excusable neglect was Quinn's. See Hermanson, 457

Mass. at 46. Here, Quinn did not meet his burden, as the judge

determined there was "ample evidence" that the default judgment

"was entered against Defendant Quinn due to his own

carelessness." The judge discussed Quinn's mental health issues

in assessing his competency and determined that he was capable

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of understanding the legal proceedings brought against him. We

cannot say this constitutes an abuse of discretion.8

Order affirmed.

By the Court (Vuono, Grant &
Walsh, JJ.9),

Clerk

Entered: August 20, 2025.

8 We note that the defendant filed a motion to vacate, set
aside, and strike the default judgment and for reconsideration.
Because we find no error in the denial of the 60(b) motion, we
need not address Quinn's alternative claim that certain
"historical facts" and the amount of damages awarded should be
reconsidered, clarified, or modified. To the extent that we do
not address other arguments raised by Quinn, they "have not been
overlooked. We find nothing in them that requires discussion."
Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389
(2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78
(1954).

9 The panelists are listed in order of seniority.

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