Albano v. Jordan Marsh Co.

• Decision Date: 05 May 1975
• Citation: 327 N.E.2d 739,367 Mass. 651
• Parties: Michael W. ALBANO v. JORDAN MARSH COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 739

327 N.E.2d 739

367 Mass. 651

Michael W. ALBANO v. JORDAN MARSH COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 9, 1975.

Decided May 5, 1975.

Michael W. Albano, Springfield, pro se.

Charles W. Sullivan, New York City, for Jordan Marsh Co.

Before TAURO, C.J., and REARDON, QUIRICO and WILKINS, JJ.

QUIRICO, Justice.

This is a petition under G.L. c. 211, § 4A, as appearing in St. 1972, c. 740, § 2, requesting that a case now pending in the Superior Court be transferred to this court for the purpose of vacating and reversing certain interlocutory orders entered by a judge of the latter court and for certain other relief discussed below. On a return of the order of notice the matter was heard by a single justice of this court who thereafter entered an order denying the petition. The hearing was limited to the allegations of the petition and the arguments of counsel. The case is before the full court on the plaintiff's exception to the denial of his petition. There was no error.

The pertinent portion of G.L. c. 211, § 4A, is the following: 'The supreme judicial court may . . . direct any cause or matter to be transferred from a lower court to it in whole or in part for further action or directions, and in case of partial transfer may issue such orders or direction in regard to the part of such cause or matter not so transferred as justice may require.'

This is another, but perhaps not the last, of a substantial number of cases stemming from the plaintiff's plans for the development and construction of a sizable shopping center in Springfield. Earlier cases in this line requiring the attention of the courts at the appellate level include the following: Poremba v. Springfield, 354 Mass. 432, 238 N.E.2d 43 (1968), Omartian v. Mayor of Springfield, 354 Mass. 439, 238 N.E.2d 48 (1968), Albano v. Jordan Marsh Co., 354 Mass. 445, 238 N.E.2d 52 (1968), and ALBANO V. JORDAN MARSH CO., --- MASS.APP. ---, 311 N.E.2D 568 (1974)^A (further appellate review denied, --- Mass. ---, June 20, 1974 ^b). The last two cases cited above trace the business relationship between the plaintiff and defendant which gave rise to the continuing controversy between them. The intended relationship of lessor (plaintiff) and lessee (defendant) failed of fruition for a number of reasons which have fanned the fires of litigation between the parties to the extent that the litigation continues now sixteen years after they first started negotiations, eleven years after they first signed a lease, and seven years after the entry of their first case, which we decided in Albano v. Jordan Marsh Co., 354 Mass. 445, 238 N.E.2d 52 (1968). Following that decision the relationship of the parties worsened, the shopping center was never built, and the plaintiff started more litigation described below, which led to the present proceeding.

On December 5, 1968, the plaintiff brought an action at law against the defendant alleging in five counts that the latter had committed breaches of its contract and in a sixth count that it had maliciously interfered with the plaintiff's business relationship with others, including other lessees or potential lessees of the proposed shopping center. On March 19, 1971, while the action at law was still pending and not tried, the plaintiff entered a bill in equity against the defendant seeking specific enforcement of their lease and money damages for the defendant's alleged breach of the lease and other wrongful conduct. The trial of the equity suit resulted in findings, rulings and a decree to the effect that the plaintiff had failed to perform his obligations under the lease, that the defendant had not failed to perform its obligations thereunder, that the defendant was not liable in damages to the plaintiff, and that the liability, if any, in damages of the plaintiff to the defendant was left to be determined in a separate action then pending between the parties, seeking damages for the plaintiff's breach of the lease agreement. The plaintiff appealed from that decree entered on June 4, 1973, to the Appeals Court which affirmed the decree on May 24, 1974. ALBANO V. JORDAN MARSH CO., --- MASS.APP. ---, 311 N.E.2D 568 (1974)^C (further appellate review denied, --- Mass. ---, June 20, 1974 ^d).

After the plaintiff started his equity suit on March 19, 1971, as described above, the following proceedings took place in the pending action at law between the same parties. On September 24, 1971, as the result of a hearing before a judge of the Superior Court, the plaintiff discontinued his five counts in contract, leaving only the sixth count in tort. On October 17, 1973, a judge of that court allowed a motion of the defendant to amend its answer by adding a plea of res judicata based on the decree of June 4, 1973, in the equity suit; but because that decree was under appeal to the Appeals Court the judge ordered that the action at law be placed on a list of...