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 parti es 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 dec ision 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 22

- P

- 594
LUZ HARVEY & another 1

vs . ELIAS ASSED (and a consolidated case 2 ). MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
T his case involves service o f process on a foreign national residing in Brazil who, while visiting Massachusetts and exercising his privilege to utilize the roads of the Commonwealth in a rental car, caused injury to the occupant of another car and then left the jurisdiction without p roviding his true address or taking any responsibility for his actions. As set forth below, we vacate so much of a final judgment dated April 19, 2022, that dismissed all claims against the defendant. The p laintiffs ' appeal from the denial of a third mot ion for reconsideration and to reinstate is dismissed as moot
. 1. Facts . a . Underlying e vents . O n November 24, 2017 , the defendant, Elias Assed, was driving a Jeep Grand Cherokee

1 Michael Harvey. 2 The consolidated case involves the same parties.2

rented from Enterprise Rent

- A

- Car on R oute 16 in Medford. The

car was o wned by EAN H oldings , LLC. The complaint alleges that the defendant drove unlawfully through a red light smashing into the car being operated by plaintiff Luz Harvey
. The car Luz Harvey was operating was owned by her husband, plaintiff Michael Harvey.
A " Motor Vehicle CRASH Report " signed by T rooper Christopher Sullo of the Massachusetts S tate police quote d the defendant as saying that he was traveling w est on Route 16 "and did not realize the traffic light was red." According to the report, h e stated that he "ran the red light and subsequently came in contact with" pla intiff Harvey's vehicle. This wa s consistent with the statement of a third

- party witness , also conveyed in the CRASH report , who "stated she observed [ the defendant's vehicle ] run the red light traveling
west on Rt . 16 causing the accident with [ Luz's veh icle]. " The
CRASH report , in a section denominated " operator information , "
state d that the defendant ha d an address of 100 Rivers Edge Dr., Apt. 439 in Medford (Medford address). Trooper Sullo cited the defendant for f ailure to s top for a r ed l ight; this citation,
too , contained the Medford address.
The CRASH report state d that plaintiff Luz Harvey was

" transported by Medford EMS to Lawrence Memorial Hospital with

non - life threatening injuries to her back and legs. "3

The defendant had purchased insur ance coverage in conjunction with his automobile rental. The insurance carrier was Rental Insurance Services , Inc. (RIS). On January 3, 2018, an attorney for the plaintiffs notified RIS by letter that Luz Harvey intended to make a claim against the bodil y injury portion of the policy. In the same correspondence, counsel requested, pursuant to G. L. c. 175, § 112C, the disclosure of the policy limits within thirty days from the date of the letter. RIS responded in a timely manner, disclosing a policy lim it of one million dollars.
b
. This l itigation . On November 23, 2020, the plaintiffs' counsel filed the complaint in this action against the defendant and EA N , alleging, inter alia, negligence causing bodily injury, expenses for medical care and lost wages, as well as loss of consortium. In the plaintiffs ' s tatement of d amages, documented expenses including those for the hospital, the doctor, chiropractic treatment , physical therapy, and lost wages totaled $228,797. i
. First a ttempt at s ervice and f irst m otion to d ismiss
. On February 9, 2021, a Middlesex County d eputy sheriff served process (i.e., the summons and complaint) on the defendant by leaving it at the Medford address
. The plaintiff s filed the return of service on February 22, 2021.4

On March 5, 2021, counsel for the defendant entered a "special appearance for the limited purpose of jurisdiction, and service of process." The appearance he filed noted that , " [ i ] n entering his special appearance, the Defendant does not waive personal j urisdiction, or service of process defenses." On April 23, 2021 , counsel for the defendant filed a motion to dismiss for, inter alia, insufficient service of process
under Mass. R . Civ. P. 12 (b) (5) , 365 Mass. 754 (1974)
. The defendant attached two affidavits, each of which was captioned with the name and docket number of this case. The first, signed by the defendant , stated , "I am in my 70 ' s [ sic ] and am a lifelong resident of Rio de Janeiro, Brazil ; " "I have never resided at 1 00 Rive r Edge Drive, Apartment 439, Medford Mass. 02155 ; " " I have never owned a Massachusetts driver's license ; " "I have never owned a driver's license from any other state in the United States ;" "I have never owned a car in the United
States ; " "I have never had a car registered to me in the United
States ; " and " On November 24, 2017, I possessed a Brazilian licen se only ." The written statement did not state t h e defendant' s address, or even what country he was in when he signed it
. The defendant further submitted that , "I have not been served personally with a copy of the Summons and Complaint in
the above

- captioned matter." He also asserted that, " [o] n5

November 24 , 2017, I was visiting my son for a few weeks while he was temporarily staying at 100 River Edge Drive, Apartment 439, Medford, Mass. 02155 and attending Boston University." Finally, the defendant said that he had left this jurisdiction and returned to his home in Brazil the very night the accident
occurred. The affidavit was undated; it wa s preprinted with the month (March) and the year (2021), but the line on which the specific date is supposed to be entered was left blank. The final sentence of the aff idavit read , "This affidavit has been translated into Portug u ese by my son, Elias Alexandre Assed Filho and I understand it , on that basis." As described below, however, we need not and do not decide whether the affidavit was admissible. ii
. Second a tte mpt at s ervice and second m otion to d ismiss
. Apparently i n light of the defendant 's filing, while the first motion to dismiss was pending, the plaintiffs effected service of process on the Registry of Motor Vehicles (RMV) on May 13, 2021; the summons stat ed that service was made pursuant
to G. L. c. 90, §§ 3A to 3C. Section s 3A and 3B of G. L. c. 90 provide that , in all circumstances, by operating a motor vehicle on our roadways, as the defendant did, a foreign national consents to make the Registrar his agent for purposes of service of process.6

Section 3C of G. L. c. 90 spells out how service of process on the Registrar must be performed:

" Service of process under section three A or three B shall be made by leaving a copy of th e process with a fee to be determined annually by the commissioner of administration under the provision of section three B of chapter seven in the hands of the registrar, or in his office, and by giving the defendant notice in either the manner provided i n paragraph (1) or in that provided in paragraph (2) hereof."
G. L. c. 90, § 3C.
There is no dispute that the plaintiffs properly served the Registrar. The only issue raised about this second attempt at service wa s whether the defendant was given notice in the manner provided in paragraph (1) or (2) of G. L. c. 90, § 3C. Those paragraphs state:

" (1) If the defendant is known by the plaintiff to be the holder of a motor vehicle registration or operator ' s license issued by another state or country, notice of such service upon the registrar as attorney for the defendant and a copy of the process shall forthwith be sent by registered mail, with return receipt requested, by the plaintiff to the defendant at his address of record in the office from which such registration or license was issued. The plaintiff ' s affidavit of compliance herewith, and the defendant ' s return receipt, if received by the plaintiff, shall be filed in the case on or before the return day of the process or within such further time as th e court may allow. If the defendant has no motor vehicle registration or license known to the plaintiff, such notice and copy shall be sent in the same manner to the last address of the defendant known to the plaintiff, and affidavit of compliance herewit h, and the defendant ' s return receipt or other proof of actual notice, shall be filed in the case within the time above provided.

" (2) Notice of such service upon the registrar and a copy of the process shall be served upon the defendant, if found within the commonwealth, by a sheriff or deputy sheriff of7

any county of this commonwealth, or, if found without the commonwealth, by any duly constituted public officer qualified to serve like process in the state or jurisdiction where the defendant is found, an d the officer ' s return showing such service to have been made shall be filed in the case on or before the return day of the process or within such further time as the court may allow." There is another section of G. L. c. 90 that addresses the procedure for service o n those who have applied for a driver's license or vehicle registration in the Commonwealth. It provides that after serving the R egistrar, "mailing by the registrar of a copy of such process to [a defendant] at his last address as appearing on the registrar ' s records shall be sufficient notice to him of such service." G. L. c. 90, § 3D. Despite the way the summons was written, after receiving the summons and complaint, the R MV

-- presumably because its
last address for the defenda nt was the Medford address on the police report of the accident

- – utilized the § 3D procedure, mailing the summons to "his last address as appearing on the registrar's records," G. L. c. 90, § 3D, i.e., the Medford
address. On August 23, 2021, t he p laint iffs' attorney sent, via certified mail, return receipt requested, notice of the complaint to the defendant , again using the only address he ha d for him

– - the Medford a ddress. It was returned to the plaintiffs' attorney as undeliverable.8

On September 29 , 2021 , the defendant filed a second motion to dismiss

- – the first one still pending

- – arguing that this second attempt at service through the RMV was insufficient. Again the plaintiffs opposed, arguing that both the first and the second attempts at ser vice were adequate. The plaintiffs also filed a motion for extension of time to effect service
. Without holding a hearing, and without ruling on the first motion to dismiss, the judge on October 21, 2021, ruled on the second motion to dismiss and the plaintiffs ' motion to extend
. The judge said , "After review, it appears the Plaintiff has properly served process upon the Registry of Motor Vehicles but has not met all the proc edural requirements of proper notice, having failed to file an Affidavit of compliance and return receipt or other proof of actual notice. The Plaintiff's [ sic ] motion to extend (Paper #21) is allowed and Plaintiff may submit its affidavit of compliance a nd return receipt of mailing on or before November 30, 2021. The Defendant's motion to dismiss (Paper #19) is taken under advisement and held until November 30, 2021, or until the Plaintiff files its supplemental documents, for consideration."
The plaintiffs failed to make any submission by November 30, 2021 , and on December 14, 2021, the claims against the defendant were dismissed, leaving only EAN in the case.
The plaintiffs, however, filed a m otion for r econsideration
and to v acate the o rder of d ismissal on January 28, 2022
. The
p laintiffs ' counsel asserted in an affidavit that until the dismissal order, he had not received and was not aware of the October 21, 2021 o rder.9

In an order d ated February 3, 2022, the judge addressed the merits of the motion for reconsideration and denied it , saying "the Court accepts [counsel's] assertion [that he never received the October 21 , 2021 o rder]. However, the motion must still be denied. The Plaintiff ' s [ sic ] motion for extension was based on the procedures set forth in G. L. c. 90 § 3C. Based on the affidavits of counsel and the Keeper of Records of the MA Registry of Motor Vehicles, attached to the motion as Exhibit 2, the procedure followed was not pursuant to G. L. c. 90 § 3C but rather pursuant to G. L. c. 90 § 3D, the procedure intended for residents of the Commonwealth. In discussing § 3C and § 3D, the Supreme Judicial Court has differentiated the two procedural sections as follows: 'Section 3C of this chapter, governing service of process upon nonresident motorist places obligation on plaintiff to send copy of process to nonresident; however, [ Section 3D ], governing service of process upon resident motorist places such burden on registrar of motor vehi cles.' Hardy v. Utica Mut. Ins. Co ., 369 Mass. 696 (1976). Defendant asserts that he is and has always been a citizen and resident of Brazil. This seems to place him clearly in the category of being a 'non

resident' of MA, requiring compliance with G. L . c. 90 § 3C. As Plaintiff has not established compliance with G. L. c. 90 § 3C, it gives new reasons for the same result: dismissal."

c . Subsequent events . On April 6, 2022, in response to the plaintiffs' request for production of documents, EAN tur ned over to the plaintiffs a document that included an address for
the defendant, as well as his driver's license number with a notation that its issuing country was Brazil. On April 20, 2022, the plaintiffs' c ounsel promptly sent the process via r egistered m ail to the address in Brazil. However, the record does not contain proof of delivery ( or notice that the letter could not be delivered )
.10

Meanwhile, on April 19, 2022, a stipulation of dismissal signed by the plai ntiffs and EAN was filed and entered on the docket a s part of the final judgment dismissing what remained of
the case. Thus, EAN is no longer a party to this case. The plaintiffs subsequently filed a timely notice of appeal from that portion of the April 19 , 2022 final judgment that dismissed the claims against the defendant
. d
. Motions to r einstate and consolidation of a ppeals . On May 6 , 2022, the plaintiffs served a second m otion for

r econsideration of the o rder d ismissing the c ase a gainst the defendant , to v acate s aid o rder, and to r einstate the c ase , under Mass. R . Civ. P. 60 (b) , 365 Mass. 828 (1974) . The defendant filed a r eply to which he attached a new affidavit from his son claiming that , " My father presented the police officer with his Brazil i an driver's license at the time of the accident , " "[t] he police officer told my father that the license was not acceptable that [ sic ] he needed a local address ," and " I explained that my father was just a tourist and that he was only here for a few days. The police officer asked for a local
address , and I provided him with the address I was temporarily living at in Massachusetts."
On July 11 , 2022, a single justice of this court issued an order to stay appellate proceedings so that the plaintiffs c ould litigate their second motion for reconsideration and to11

reinstate the case . On August 16, 2022, the same Superior Court judge denied the motion. The plaintiffs filed a timely notice of appeal from that order. The plaintiffs' c ounsel continued to pursue efforts to provide notice to the defendant pursuant to G. L. c. 90, § 3C. After significant efforts, counsel enlisted the assistance of one Maria Bueno, who traveled to Rio de Janeiro, Brazil to attempt to confirm that the defendant st ill live d at the Rio de Janeiro a ddress and to provide the service papers to him. She was successful in so doing on August 12, 2022. O n receipt of
her a ffidavit, the plaintiffs' counsel filed an a ffidavit of

c ompliance with G. L. c. 90, § 3C, which was d ated September 22, 2022.
On October 17, 2022, the plaintiffs filed a third m otion
for r econsideration of the o rder d ismissing the c ase a gainst the defendant , t o v acate s aid o rder , a nd t o r einstate the c ase. That motion was denied on the merits on Decembe r 14, 2022, the judge stating , "The Court adopts the reasoning in Defendant's opposition, which reflect [ sic ] the court's prior determination and rulings, and also based on Plaintiff ' s [ sic ] unpersuasive potential new reasons for relief." The plaintiffs then filed their third timely notice of appeal.
On December 23, 2022, the stay of appellate proceedings was vacated
. A single justice of this court subsequently allowed12

the plaintiffs' motion to consolidate the appeal from the final judgment w ith the appeal from the denial of the third motion for reconsideration. 2. Discussion . We have before us two appeals, one from the final judgment in this case, which brings before us the interlocutory order dismissing all claims against the defendant,

a nd the other from the denial of the thir d m otion for

r econsideration and r einstatement. Because we conclude that the original attempt at service of process was effective , we need address the merits of only the first appeal.
Rule 4 (d) (1) of the Mass achu setts R ules of Civ il
P rocedure , as amended, 370 Mass. 918 (1976), permits process (the summons and complaint) to be served "by leaving copies thereof at [the defendant's] last and usual place of abode." In this case, the plaintiffs had the d eputy s heriff leave the process at the Medford address. This was the address given by the defendant to the State
t rooper who issued him a citation at the scene of the accident that forms the basis of this action. The return stated that process was served "by le aving at the last and usual place of
abode of ELIAS ASSAD [ sic ] , 100 RIVER EDGE DRIVE APT 439 MEDFORD, MA 02155." The defendant argues , by reference to his signed statement,
t hat th e Medford address was never his address. E ven assuming13

that the purported affidavit was both admissible and accurate, we conclude that pursuant to r ule 4 (d) (1) , service at the Medford address was adequate . T he plaintiffs were entitled to rely on the address information contained in the State t rooper 's
CRASH r eport and to ser ve the d efendant at what he represented

w as his last and usual place of abode. See Crete v. Audet , 353 Mass. 725 , 729 (1968)
. The L egislature has long been concerned with protecting people in the Commonwealth from injury or property damage caused by nonresident drivers. Initially there was , "to a large extent, immunity from all legal responsibility on the part of such nonresident" drivers (quotation and citation omitted). Pawloski v. Hess , 250 Mass. 22, 26 (1924). The Legislature has taken many steps to remedy this, while protecting the rights of putative defendants to due process. Thus, for example, it enacted G. L. c. 90, §§ 3A and 3B, to allow service of process
on t he Registrar for nonresident drivers in

- S tate. See id
. at 26

- 27 (upholding such laws from constitutional challenge).
More to the point here, the Legislature also enacted criminal laws requiring those motor vehicle operators who collide with other motor v ehicles

- – as the defendant did in this case

– - to provide their name and residence before leaving the scene. Under these laws, the defendant was legally obligated to provide his correct and proper address at the scene14

of the accident. General Laws c . 90 , § 24 (2) ( a ) , says that "whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property
. . . shall be punished. " General
Laws c. 90, § 24 (2) ( a 1/2 ) (1) , states, in relevant part: "Whoever operates a motor vehicle upon any way or in any place to which the public has right of access, or upon any way or in any place to which members of the public shall have access as invitees or licensees, and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in the death of any person, shall be punished by imprisonment for not less than six months nor more than two years and by a fine of not less than five hundred dollars nor more than one thousand dollars." The "obvious purpose" of such laws "is to enable those in any way injured by the opera tion of an automobile upon a public way to obtain forthwith accurate information as to the person in charge of the automobile," as such information is "of a nature which will identify him readily, and make it simple and easy to find him thereafter " (emphas is added)
. Commonwealth v. Horsfall , 213 Mass. 232, 236 (1913) (addressing earlier statute requiring making one's name and residence known after causing injury to person or property). Here, the address given at the
scene to the t rooper, the Medford addre ss, was, if the defendant's affidavit is credited, not his residence, nor did it make it simple and easy to find him thereafter.15

In Crete , 353 Mass. at 7 30 , a case involving a car accident , the Supreme Judicial Court held that service was adequate even though it was sent to an incorrect address and
returned to the sender. The defendant himself had given the incorrect address in a report of the accident that was statutorily required under G. L. c. 90, § 26. Id . at 726. Although the c ourt stopped short of deciding t hat the defendant was estopped as a matter of law from denying the address in the report, id . at 730 n.7, it concluded that "there was sufficient representation by [the defendant] that his real address was the Hartford address to which notice was sent, and sufficient tendency for that representation to mislead [the plaintiff], so that [the defendant] should not now be heard to argue that [the plaintiff] did not send notice" to the p roper address , i d . at 730.
We think the same is true here. Given the laws requiring provision of one's residence at the scene of an accident, the defendant 's provision only of the Medford address was both a sufficient representation that that was his res idence, and had a sufficient tendency to mislead, such that he cannot now be heard to argue that the process was served at the wrong address. The original attempt at service therefore was sufficient. 3

3 The defendant is incorrect that the plaintiffs had any obligation to contact " Enterprise Rent

- A

- Car Company (or the16

To counter this, the defendant would rely on an affi davit of his son filed after final judgment below, at the time of the third motion for reconsideration in April 2022, which state d that the defendant offered his Brazilian license to the t rooper, but that he refused to accept it and required a United States address. Even if we assume the son's 2022 affidavit is true, and that the events it describe d would amount to "making known " his Brazilian residence, G. L. c. 90, § 24 (2) ( a ), ( a 1/2 ) (1), two questions we do not decide, this affidavit was not sub mitted with the original motion to dismiss, n or indeed at any time before final judgment entered
. A s it was not in the record before the judge considering the first motion to dismiss , who had no basis for finding irregular the provision of the Medford add ress to the t rooper, we may not consider it in the appeal from the final judgment. 3
. Conclusion . Because we conclude the initial attempt at service was effective, we need not address either the second attempt, which is also raised in the appeal from th e final

title owner, EAN Holdings LLC) to determine the licensure status and home address of A ssed" before relying on the address given to the tr o op er. The defendant was required at the scene of the accident to make known his name and residence in order to "make it simple and easy to find him" after an accident. Horsfall , 213 Mass. at 236
. A plaintiff i s not required to contact or engage in discovery with other adverse parties or nonparties seeking information that they may or may not have before relying on the defendant's own representation
.17

judgment, nor the appeal from the denial of the subsequent motion to reinstate. So much of the final judgment dated April 19, 2022 , th at dismiss ed all claims against the defendant is vacated, and the

case is remanded for reinstate ment of those cla ims
. The
p laintiffs ' appeal from the denial of the third motion for reconsideration and to reinstate is dismissed as moot.
So ordered
. By the Court (Rubin, Singh & Hershfang, JJ. 4 ),

Clerk

Entered: June 28, 2024.

4 The panelists are listed in ord er of seniority.