Bartlett v. Greyhound Real Estate Finance Co.

669 N.E.2d 792, 41 Mass. App. Ct. 282
CourtMassachusetts Appeals Court
DecidedSeptember 12, 1996
DocketNo. 95-P-88
StatusPublished
Cited by29 cases

This text of 669 N.E.2d 792 (Bartlett v. Greyhound Real Estate Finance Co.) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bartlett v. Greyhound Real Estate Finance Co., 669 N.E.2d 792, 41 Mass. App. Ct. 282 (Mass. Ct. App. 1996).

Opinion

Laurence, J.

The plaintiffs sued Greyhound Real Estate [283]*283Finance Co., the owner of a marina in Falmouth, in an attempt to frustrate Greyhound’s efforts to obtain regulatory approval for pier extensions at its marina. On Greyhound’s motion under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), a Superior Court judge dismissed the complaint because of the plaintiffs’ failure to have exhausted their administrative remedies and other procedural defects. After a hearing, another Superior Court judge allowed Greyhound’s motion, pursuant to G. L. c. 231, § 6F, for sanctions on account of the plaintiffs’ “insubstantial and frivolous claims,” awarding Greyhound the full amount of its requested attorney’s fees. The second judge, in a handwritten notation in the margin of the motion, indicated that his reasons for the award were the plaintiffs’ continued prosecution of their action despite the pendency of administrative proceedings concerning the marina and their legal reliance on a document that was “patently” not what they contended it was. The judge did not, however, make the “separate and distinct finding” or the specification of his computational methodology mandated by G. L. c. 231, § 6F.3

The plaintiffs appealed the sanction to a single justice of this court, as authorized by G. L. c. 231, § 6G.4 The single justice affirmed both the imposition and the amount of the fee [284]*284award on the basis of the record before the Superior Court judge, despite the absence from the judge’s § 6F award of the required finding and specification. Relying primarily on the asserted legal errors represented by those omissions, the plaintiffs appealed to a full panel of this court, purportedly pursuant to the second paragraph of § 6G. At oral argument, the panel inquired whether the 1992 amendment to the second paragraph of § 6G, which provided that the single justice’s decision of the § 6F appeal “shall be final,” may have divested the panel of jurisdiction to decide the appeal,5 a question the parties had not addressed.

[285]*285The parties submitted supplemental presentations on that issue. Those materials were, unfortunately, essentially conclu-soiy arguments that merely reiterated the statutory language favoring their respective positions while overlooking the inconsistent provisions. Neither party could cite to any helpful legislative history6 of the amendment or any case authority directly in point.

A plausible argument can be constructed for the proposition that amended § 6G should be read to exclude any further appeal to a full panel of this court from a final determination by the single justice of an appeal of a § 6F award. It is accordingly incumbent upon us to address the novel issue of the proper interpretation of the 1992 amendment to G. L. c. 231, § 6G, before addressing the merits, since jurisdictional issues should, except in extraordinary circumstances, be addressed whenever raised. See Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981); Goes v. Feld-man, 8 Mass. App. Ct. 84, 85 (1979); Shea v. Neponset River Marine & Sportfishing, Inc., 14 Mass. App. Ct. 121, 129 (1982). From 1976 until 1992, § 6G said nothing about a decision of the single justice being “final,” but only that the single justice hearing the appeal “shall schedule a speedy hearing thereon” and conduct the appeal “according to the Massachusetts Rules of Appellate Procedure.” See note 5, supra. It was recognized at the time that the provisions of § 6G constituted “a confusing statutory scheme,” Bailey v. Shriberg, 31 Mass. App. Ct. 277, 284 (1991), containing “an anomalous route of appeal,” id. at 282, as well as other “obscurities.” Katz v. Savitsky, 10 Mass. App. Ct. 792, 793 (1980). Chief among such obscurities was the question whether the single justice’s determination of a § 6G appeal was reviewable by a panel of the Appeals Court, a matter as to which the statute was silent. Ibid.

That issue was resolved in Katz v. Savitsky, where this court construed the original version of the statute to admit of panel review because “there is nothing in § 6G which purports to attribute any measure of finality to an order entered by one of our single justices under that section.” 10 Mass. App. Ct. at 794. The court contrasted § 6G in this respect with G. L. c. 261, § 27D, which has always expressly [286]*286provided that an Appeals Court single justice’s decision on costs for an indigent party “shall be final,” in the sense of permitting no further appeal. See Gos v. Brownstein, 403 Mass. 252, 254 (1988).

With the enactment of St. 1992, c. 133, § 561, the rationale of Katz v. Savitsky seemed to vanish and with it the underpinning of the justification for full panel review of single justices’ § 6G rulings. Finality has, the defendant Greyhound contends, been explicitly accorded the § 6G decision of the single justice. Greyhound ignores, however, the words in the sentence of the second paragraph of amended § 6G that immediately follows “shall be final”: “Any appeal to the supreme judicial court or the appeals court shall proceed according to the Massachusetts Rules of Appellate Procedure.” Those words, the plaintiffs maintain, must envision continued § 6G appeal to and review by a panel of the Appeals Court.

The 1992 amendment to § 6G plainly injected an ambiguity into the statute with respect to the decision of the single justice. We are obliged to give ambiguous, imprecise, or faultily drafted statutes “a reasonable construction,” with the primary goal of “construing] the statute to carry out the legislative intent.” Massachusetts Commn. Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 190 (1976). In doing so, we must “avoid[] a construction which would negate legislative intent or defeat its intended utility.” Milton Commons Assocs. v. Board of Appeals of Milton, 14 Mass. App. Ct. 111, 116-117 (1982). We attempt to ascertain legislative intent first, as we do with all statutes, “from the words used.” Lehan v. North Main St. Garage, Inc., 312 Mass. 547, 550 (1942). We examine the words used both in the problematic section and in “other parts of the statute.” Commonwealth v. Galvin, 388 Mass. 326, 328 (1983). We give all those words their usual, ordinary, and common meanings. G. L. c. 4, § 6, Third. Prudential Ins. Co. v. Boston, 369 Mass. 542, 546 (1976). Our objective is to confer upon the “statute . . . as a whole ... an internal consistency,” Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 316 (1991), as well as fidelity to the extracted legislative purpose.

Applying these tools of statutory construction, in the absence of any illuminating legislative history, one might initially conclude that the General Court may well have intended to make the single justice’s resolution of the appeal [287]*287of a G. L. c. 231, § 6F, sanction “final” in the sense of not being subject to further review. Such is the usual connotation of the word “final,” in all of its dictionary meanings: i.e., something that is the last step, the very end result of a process, which is “[n]ot to be changed or reconsidered . . . [and is] unalterable,” The American Heritage Dictionary 682 (3d ed.

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669 N.E.2d 792, 41 Mass. App. Ct. 282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bartlett-v-greyhound-real-estate-finance-co-massappct-1996.