City of Boston v. Rochalska

• Court: Appeals Court of Massachusetts
• Writing for the Court: Duffly
• Citation: City of Boston v. Rochalska, 890 N.E.2d 157, 72 Mass. App. Ct. 236 (Mass. App. 2008)
• Decision Date: 18 July 2008
• Docket Number: No. 06-P-2025.,06-P-2025.
• Parties: CITY OF BOSTON v. Jadwiga ROCHALSKA & Another.<SMALL><SUP>1</SUP></SMALL>

890 N.E.2d 157

72 Mass. App. Ct. 236

CITY OF BOSTON v. Jadwiga ROCHALSKA & Another.¹

No. 06-P-2025.

Appeals Court of Massachusetts, Suffolk.

Argued December 4, 2007.

Decided July 18, 2008.

Edward J. McCormick, III, Franklin (Siobhan O. Conlon with him) for the intervener.

Karen B. Roach for the plaintiff.

Stuart T. Schrier, Boston, for the defendant.

Present: DUFFLY, GREEN, & MEADE, JJ.

DUFFLY, J.

The city of Boston (city) petitioned the Housing Court for appointment of a receiver, pursuant to G.L. c. 111, § 127I, to bring a vacant property owned by Jadwiga Rochalska into compliance with State sanitary and building codes. After the receiver had been appointed, his role was limited to "tak[ing] all necessary steps to enable the Boston Fire Department to enter the premises in the event of a fire." Having completed that task, the receiver was discharged, and following a hearing to establish the reasonableness of his claimed expenses, he was awarded $124,353.49.

The intervener, Marian Sklodowski, filed this appeal² from various orders and judgments of the Housing Court, primarily claiming that G.L. c. 111, § 127I, does not apply to vacant buildings and it was thus error to deny his motion to vacate the appointment of a receiver. He also appeals from the denial of Rochalska's motion to dismiss the city's petition to appoint a receiver (based on a claim of insufficiency of service of process); the denial of his own motion to amend findings of fact and rulings of law (asserting, inter alia, that the receiver committed a fraud on the court); and the award of $124,353.49 to the receiver, claiming that findings regarding certain allowed expenses of the receiver were not supported by the evidence.³ We affirm in part and reverse in part.

1. Background and proceedings. Some years prior to the commencement of the within proceeding, the city through its inspectional services department condemned the property located at 199-201 Athens Street in Boston (property) as unfit for habitation due to various sanitary and building code violations, and issued a vacate order.⁴ On January 16, 2002, the city filed its petition in the Housing Court for the appointment of a receiver for the property, alleging that the abandoned property had been condemned as unfit for human habitation in that, among other things, the porches were in a badly deteriorated state and conditions at the property presented a public safety hazard and a danger of vandalism, trespass, fire, and illegal activities occurring there.

As also set forth in the complaint, Rochalska had not applied for permits to remedy these conditions after the condemnation of the property entered, and there was a risk that the building would be destroyed beyond repair absent the appointment of a receiver who would be obligated to secure the property, repair it, and bring it into conformity with applicable sanitary and building codes. Following several unsuccessful attempts to personally serve Rochalska with the petition, the city's motion for service by publication was allowed, and on March 19, 2002, Jonathan Kaye was appointed receiver.

Some two weeks later, Rochalska, through an attorney, filed a motion supported by affidavits to stay the receivership claiming that she was never served with notice of the proceedings and was prepared to "immediately commence the rehabilitation of the entire subject property." The motion to stay was allowed by an order dated May 14, 2002, on the ground that "it is in the interests of justice to afford the respondent [Rochalska] an opportunity [within twenty-one days] to show that she is capable of rehabilitating the premises." The order did not fully divest the receiver of authority, however, but, rather, authorized Kaye "to take all necessary steps to enable the Boston Fire Department to enter the premises in the event of a fire."⁵

Two motions to dismiss the petition for appointment of a receiver were thereafter filed on Rochalska's behalf by another attorney (not apparently associated with the attorney who filed the motion to stay). The first sought to dismiss the petition without prejudice on the basis that Rochalska "has conveyed the property to Mari[a]n Sklodowski, an experienced contractor ... [who] is now prepared to renovate the property and bring it into compliance with the applicable codes."⁶ The second motion was brought pursuant to Mass.R.Civ.P. 12(b)(5), 365 Mass. 755 (1974), and alleged insufficient service of process.⁷ Both motions to dismiss were eventually denied.⁸ Sklodowski's motion to intervene as a party defendant was allowed.⁹

In December, 2002, Sklodowski, as intervener, filed a motion seeking to "vacate and/or dissolve" the receivership, contending that the property was unoccupied and thus not subject to the appointment of a receiver under G.L. c. 111, § 127I. Two weeks later, the motion to vacate the receivership was denied but the motion to dissolve it was allowed, and Sklodowski was ordered "hereafter responsible for the rehabilitation of the property in question and bringing it into compliance, under continued court supervision, and subject to the right of [the city] to move for the appointment of a receiver for the property should the rehabilitation work fail to progress."

A hearing was conducted before a judge of the Housing Court to determine the amount of reasonable costs and expenses incurred by the receiver for work undertaken from the date of his appointment, March 19, 2002, to December 5, 2002. In his order dated September 30, 2003, the judge determined that $124,353.49 in costs and expenses had reasonably been incurred and that, $50,000 having been paid, the balance due to the receiver was $74,353.49, plus $7,597.19 in interest. The judge denied without hearing Sklodowski's motions for new trial and to amend findings of fact and rulings of law pursuant to Mass.R.Civ.P. 52(b), as amended, 423 Mass. 1402 (1996). Final judgment entered on March 24, 2005.¹⁰

2. Summary of findings. "We give a summary account of this protracted case embodied in a very extensive record. In doing so we apply the rule that findings of fact made by the judge below are to be accepted by us unless clearly erroneous, Mass. R. Civ. P. 52(a), ... and we also take the view that more general appraisals by the judge ... are entitled to respect although they are not binding on us." Perez v. Boston Hous. Authy., 379 Mass. 703, 705, 400 N.E.2d 1231 (1980). Additional findings and evidence to support them will be included in our discussion of the issues.

The property, which consists of two three-story buildings each containing three dwelling units, was vacant when the petition to appoint a receiver was filed. Rochalska was the owner of the property and had allowed it to become vacant when she received numerous notices of health and building code violations at the property; she attended hearings held by the city's inspectional services department that, in August, 2000, resulted in the issuance of an order of condemnation and an order to vacate the building. The property was in a dilapidated condition with rear porches in danger of imminent collapse. As a result of homeless people frequenting the building, several fires occurred there; the building was without essential utilities or smoke alarms, and debris and furniture blocked ingress and egress, rendering the property impassable. The Boston fire department had declared that the building was unsafe and dangerous, posting a red "X" on the door. Despite having been given time to obtain permits and make repairs after the building was condemned, Rochalska did not undertake any substantial repairs, and a receiver was then appointed.

Kaye, as receiver with authority to undertake the repairs necessary "to enable the Boston Fire Department to enter the premises in the event of a fire," cleared the debris, discarded furniture that blocked ingress and egress to the property, and reconstructed the rear porches.

3. Discussion. a. Service of process. The claim that Rochalska was not properly served with process and that the judge thus erred in denying Rochalska's motion to dismiss pursuant to Mass. R.Civ.P. 12(b)(5), was waived.

Passing the question (not raised by the parties) of the intervener's standing to appeal from the denial of Rochalska's motion, cf. Box Pond Assn. v. Energy Facilities Siting Bd., 435 Mass. 408, 415, 758 N.E.2d 604 (2001), we note that when Rochalska requested the Housing Court to stay the receivership so that she could "commence the rehabilitation of the entire subject property," she was asking that the court exercise its jurisdiction over the parties; as such she "waive[d] all questions in regard to service [of process] and submit[ted her]self to the jurisdiction of the court." Hull v. Adams, 286 Mass. 329, 333, 190 N.E. 510 (1934), quoting from Gahm v. Wallace, 206 Mass. 39, 44-45, 91 N.E. 1002 (1910). See Bateman v. Wood, 297 Mass. 483, 486, 9 N.E.2d 375 (1937) ("party may lose the right to object to lack of proper service of process by ... pleading to the merits").

b. Scope of G.L. c. 111, § 127I. We disagree with Sklodowski's argument that his motion to vacate the receivership was wrongfully denied¹¹ because G.L. c. 111, § 127I, does not apply to unoccupied buildings.¹² He argues that the statutory language permits a court to appoint a receiver only when such appointment is "in the best interest of the occupants residing in the property" and is thus inapplicable to an unoccupied property. This misreads the language of the statute, particularly when viewed in the light of legislative intent as reflected in the statutory scheme.

"We must ascertain the intent of a statute from all of its parts, from the subject matter to which it relates, and we must construe it so as to render the legislation effective, consonant with reason and common sense." Bay Colony Mktg. Co. v. Fruit Salad, Inc., 41 Mass.App.Ct. 662, 664-665, 672 N.E.2d 987 (1996), and cases cited. We read §...