Coolbeth v. Berberian

• Decision Date: 02 January 1974
• Docket Number: No. 1702-A,1702-A
• Citation: 112 R.I. 558,313 A.2d 656
• Parties: Ruth COOLBETH et al. v. Aram K. BERBERIAN et al. ppeal.
• Court: Rhode Island Supreme Court

Page 656

313 A.2d 656

112 R.I. 558

Ruth COOLBETH et al. v. Aram K. BERBERIAN et al.

No. 1702-Appeal.

Supreme Court of Rhode Island.

Jan. 2, 1974.

John M. Roney, Rhode Island Legal Services, Inc., Providence, Barry Vogel, Boston, Mass., for plaintiffs

Aram K. Berberian, pro se.

OPINION

JOSLIN, Justice.

Ruth Coolbeth, a real estate tenant, brought this civil action in the Superior Court on her own behalf and on behalf of all Rhode Island tenants to enjoin allegedly unlawful self-help evictions. She named the following defendants: her landlords Richard and Betty Reprogle, in their individual capacities and as representatives of all Rhode Island landlords; Aram K. Berberian, who, in addition to being a practicing attorney, conducts an eviction service business under his own name and as Landlord Eviction Service; and certain other designated individuals who are Berberian's agents and assist him in self-help evictions.

Thus, the plaintiffs are (1) an individual tenant, and (2) a class of tenants represented by that individual; the defendants are (1) two individual landlords, (2) a class of landlords represented by those two individuals, and (3) a group, but not a class, of individuals hired by the other defendants to evict tenants by self-help and without benefit of judgments for possession or writs of execution. Mathematically, this yields six causes of action. Some are class action; some are not. To designate this as a class action would, therefore, be inaccurate.

The case was heard by a trial justice sitting without a jury, and at the conclusion of two days of hearing, Berberian, his agents and employees were temporarily restrained and enjoined

'* * * from conducting, supervising or participating in any capacity whatsoever in the eviction of any tenant or any person claiming possession as a tenant or any person holding or claiming to hold under a tenant except pursuant to a valid writ of execution issued to a sheriff as required by G.L.1956 § 34-18-9 and they are further enjoined from counseling, advising, or encouraging in any manner whatsoever any landlord or reversioner or their agents in any manner whatever to evict any member of the class herein except by the procedures authorized under G.L.1956 § 34-18-9 (1970 Supp.).'

Only Berberian has appealed.

The facts are not in dispute. Coolbeth is a month-to-month tenant of a duplex apartment which is owned by the Reprogles and located in Johnston, Rhode Island. In June of 1971 her apartment lacked either a back door or screens, and its water supply had become contaminated causing her entire family to become ill. Complaints to the Reprogles, instead of resulting in the correction of the deficiencies, produced only a threat that unless the rent were paid she and her family would be dispossessed, forcibly if necessary and without resort to legal process.

Coolbeth thereupon consulted an attorney who contacted Berberian concerning the threatened eviction. He acknowledged that the Reprogles had made good their threat to seek his aid in effecting the ouster, and he said that Coolbeth's eviction would follow '(a)s soon as I received the money.'

This action was then brought to enjoin the threatened self-help eviction on the ground that it violated the statutory scheme embodied in P.L.1970, ch. 7. ¹

The hearing on plaintiffs' prayer for a preliminary injunction commenced on July 26, 1971. While Berberian was then present in court and acting as his own counsel, he did not object to any of the evidence offered by plaintiffs, cross-examine their witnesses or offer any of his own. Neither did he contest the trial justice's sua sponte consolidation of several actions filed by evicted tenants to recover damages from Berberian for unlawful force allegedly used in dispossessing them; nor did he advise the trial justice or opposing counsel that he had that very morning filed a motion to dismiss on jurisdictional grounds and that he had noticed that motion for a hearing to September 14, 1971, about a month and a half in the future. ²

At the close of the court day on the 26th the case was recessed until 9:30 a.m. the following day. When that time arrived two events of significance had occurred. One was Berberian's disappearance from the scene, and the trial justice's concomitant discovery of the existence of the motion to dismiss which Berberian had filed the previous day; the other was the trial justice's announcement that an out-of-court conference appeared to have brought the Reprogles and Coolbeth close to a 'settlement' of their differences.

While both of these events raise questions peripheral to whether the injunction should have issued, we consider them at the outset. We start with Berberian's contention that it was error for the trial justice to summarily dismiss his jurisdictional challenge without first notifying him that the hearing date thereon had been accelerated from September 14 to July 27.

That contention, as we understand it, is a narrow one. Berberian is not questioning the trial justice's authority to advance the hearing date on the motion or to grant preliminary injunctive relief without first disposing of the threshold jurisdictional defenses. See 1 Kent, R.I.Civ.Prac. § 12.14 (1969); United States v. Lynd, 301 F.2d 818 (5th Cir.), cert. denied, 371 U.S. 893, 83 S.Ct. 187, 9 L.Ed.2d 125 (1962). Instead, his only concern is that the trial justice, by failing to give him notice of the advancement of the hearing date on the motion, deprived him of an opportunity to be heard on the very vital question of whether the court had jurisdiction over his person.

Unfortunately, the record does not disclose why the trial justice considered and passed upon the motion without notifying Berberian. Understandably, he was perhaps impatient with Berberian not only for his delay in filing the motion until the day the case was reached for hearing on preliminary injunction, but also for his failure to advise the court of its pendency and for his unexplained absence on the second and final day of the hearing. It was these circumstances which perhaps persuaded the trial justice that Berberian had waived his right to notice of the advancement of the hearing date on the motion.

Whether the trial justice was justified in so concluding, we need not decide. Rather, it seems to us that the interests of justice will not be disserved if prior to the full hearing on the merits Berberian is given a further opportunity to present his jurisdictional challenge. Far better that it be disposed of then, than raised collaterally at a subsequent time.

Accordingly, and solely for the reason indicated, the trial justice's summary dismissal of the jurisdictional challenge is overruled pro forma.

The other peripheral matter relates, as we have already observed, to the trial justice's allusion to a possible settlement of the differences between Coolbeth and the Reprogles. Berberian refers to that possibility as a 'settlement' of Coolbeth's cause of action, and argues that the 'settlement,' having occurred prior to the July 29th entry of the preliminary injunction, left the complaint pending as to him without a nominal plaintiff to prosecute it on behalf of the plaintiff-class. Consequently, he contends, the trial justice should have dismissed the action.

There are at least two short answers to that contention. One is that the case was not in fact 'settled' prior to the issuance of the preliminary injunction. True, counsel for Coolbeth and the Reprogles were talking 'settlement,' and when the trial justice announced his decision on July 27 it might have appeared likely that one was in the offing, but nothing in the record indicates that it was achieved until August 4, 1971 when an order was entered dismissing with prejudice Coolbeth's complaint against the Reprogles. That 'settlement' postdated the July 29th preliminary injunction and could not therefore serve as a ground for Berberian's appeal from that injunction.

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