Cranberry Realty & Mortgage Co. v. Ackerley Communications, Inc.

457 N.E.2d 674, 17 Mass. App. Ct. 255, 1983 Mass. App. LEXIS 1549
CourtMassachusetts Appeals Court
DecidedDecember 20, 1983
StatusPublished
Cited by15 cases

This text of 457 N.E.2d 674 (Cranberry Realty & Mortgage Co. v. Ackerley Communications, Inc.) 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
Cranberry Realty & Mortgage Co. v. Ackerley Communications, Inc., 457 N.E.2d 674, 17 Mass. App. Ct. 255, 1983 Mass. App. LEXIS 1549 (Mass. Ct. App. 1983).

Opinion

Warner, J.

In Shea v. Neponset River Marine & Sport-fishing, Inc., 14 Mass. App. Ct. 121 (1982) (hereafter Shea), [256]*256we held that the deletion of the exclusionary sentence in G. L. c. 231, § 103, as amended through St. 1931, c. 426, § 112 (“This and the seven following sections shall not apply to actions under chapter two hundred and thirty nine”), by St. 1975, c. 377, § 103, “manifested an intent by the Legislature that the provisions of G. L. c. 231, §§ 97, 103 et seq., were to apply to summary process cases just as they apply to all civil actions.” Id. at 125.

In this case the plaintiff, on February 23, 1981, brought a summary process action in a District Court, pursuant to G. L. c. 239, in which it sought possession and rent in the amount of $14,850, and the defendant filed an answer. If the holding in Shea governs, the plaintiff thus waived its right to an appeal to the Superior Court for a trial de nova. G. L. c. 231, § 103. Likewise, the defendant, not having removed to the Superior Court a case in which the amount claimed was $7,500 or more, lost is right to appeal for a trial de nova. G. L. c. 231, § 104. See G. L. c. 231, § 97. Judgment entered in the District Court for the plaintiff for possession and rent in the amount of $6,825. Both parties filed appeals in the Superior Court in April of 1981. Citing Shea as controlling, a Superior Court judge, on October 8, 1982, ruled that the Superior Court lacked jurisdiction to hear the appeals (see Shea at 129), and a judgment of dismissal was entered on October 12, 1982.

Approved on July 9, 1982, four days before our decision in Shea, St. 1982, c. 304, § 1, effective August 8, 1982 (see art. 48 of the Amendments to the Massachusetts Constitution, The Referendum, III, § 2; G. L. c. 4, § 1), restored the exclusionary sentence in G. L. c. 231, § 103. (“This section and sections one hundred and four to one hundred and ten, inclusive, shall not apply to actions or counterclaims under the provisions of chapter two hundred and thirty-nine.”) Rights of appeal to the Superior Court in summary process actions begun in the District Court were thus, once again, governed by G. L. c. 231, § 97. See Shea at 124-126. Under that statute, since the waiver and removal provisions of G. L. c. 231, §§ 103 and 104, do not apply, any party may appeal to the Superior Court for a trial de nova.

[257]*257On this appeal by the plaintiff from the Superior Court judgment of dismissal, both parties argue that the restoration of the exclusionary clause by St. 1982, c. 304, § 1 (hereafter the 1982 amendment) clearly indicates that its deletion by St. 1975, c. 377, § 103 (hereafter the 1975 amendment), was unintentional. We are asked to overrule Shea; we decline to do so.2

1. The argument that the omission of the exclusionary clause in the 1975 amendment was unintentional was not made in Shea. There we concluded that the omission manifested a legislative intent that the provisions of G. L. c. 231, §§ 103 et seq., were to apply to summary process cases just as they apply to all civil actions. We are now asked to take a second look in view of the 1982 amendment, to reach back and supply an omission in the 1975 amendment which was allegedly inadvertent. “The views of a subsequent Legislature form a hazardous basis for inferring the intent of an earlier one” (citations omitted). Massachusetts Commn. Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 194 (1976). Compare Graci v. Damon, 6 Mass. App. Ct. 160, 170 (1978); Weston v. Maguire, 10 Mass. App. Ct. 540, 542 (1980). Moreover, what has been said with respect to a first look at an omission in a statute is equally applicable to a second look, and is dispositive: “[I]f the omission was intentional, no court can supply it. If the omission was due to inadvertence, an attempt to supply it . . . would be tantamount to adding to a statute a meaning not intended by the Legislature.” Cole v. Brookline Housing Authy., 4 Mass. App. Ct. 705, 708 (1976), quoting from Boylston Water Dist. v. Tabanto Regional Sch. Dist., 353 Mass. 81, 84 (1967). It was for the Legislature to insert any [258]*258matter inadvertently omitted in the 1975 amendment. There is nothing in the 1982 amendment which manifests an intent to do so.

2. Adherence to the holding in Shea, however, does not end the matter. The question remains whether the 1982 amendment applies to this case, so that the Superior Court has jurisdiction to hear the plaintiff s appeal. That issue is resolved by the application of familiar rules of statutory construction. “The general rule of interpretation is that all statutes are prospective in their operation, unless an intention that they shall be retrospective appears by necessary implication from their words, context or objects when considered in the light of the subject matter, the pre-existing state of the law and the effect upon existent rights, remedies and obligations. Doubtless all litigation commonly looks to the future, not to the past, and has no retroactive effect unless such effect manifestly is required by unequivocal terms. It is only statutes regulating practice, procedure and evidence, in short, those relating to remedies and not affecting substantive rights, that commonly are treated as operating retroactively, and as applying to pending actions or causes of action.” City Council of Waltham v. Vinciullo, 364 Mass. 624, 626 (1974), quoting from Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 3 (1914).3 [259]*259The doctrine of retroactive application of procedural or remedial statutes is not, however, without limitations. “At the extreme no ‘retroactive’ procedural statute could apply to a case which has been closed, i.e., has gone to judgment and either been affirmed on appeal or not been appealed within the time allowed for appeal.” Id. at 627.4 Further, retroactive effect should be given only “to those pending cases which, on the effective date of the statute, have not yet gone beyond the procedural stage to which the statute pertains.” Id. at 628. This latter consideration, the Supreme Judicial Court has said, provides a more workable rule than the substantive-procedural analysis. “The rule we adopted [in City Council of Waltham v. Vinciullo, supra] has us look to the stage of the proceedings affected by the change and determine whether that stage has been completed on the effective date of the amendment. If the point in the proceedings to which the statutory change is applicable has already passed, the proceedings are not subject to that change. If, on the other hand, that point has not yet been reached, the new provisions apply. This rule gives the broadest application to legislatively mandated changes without subjecting each completed step in the litigation to the uncertainty of possible future legislative change.” Porter v. Clerk of the Superior Court, 368 Mass. 116, 118 (1975). See Smith v. Freedman, 268 Mass. 38, 41-42 (1929); Goes v. Feldman, 8 Mass. App. Ct. 84, 88-89 (1979).5

[260]*260It is beyond question that the 1982 amendment related to procedures and remedies available to parties in summary process actions.

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Bluebook (online)
457 N.E.2d 674, 17 Mass. App. Ct. 255, 1983 Mass. App. LEXIS 1549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cranberry-realty-mortgage-co-v-ackerley-communications-inc-massappct-1983.