Cooley v. Bettigole

• Citation: 301 N.E.2d 872,1 Mass.App.Ct. 515
• Parties: David M. COOLEY v. Alfred W. BETTIGOLE et al., 1 trustees, (and a companion case 2 ).
• Decision Date: 19 October 1973
• Court: Appeals Court of Massachusetts

Page 872

301 N.E.2d 872

1 Mass.App.Ct. 515

David M. COOLEY v. Alfred W. BETTIGOLE et al., ¹ trustees, (and a companion case ²).

Appeals Court of Massachusetts, Hampden.

Argued Sept. 10, 1973.

Decided Oct. 19, 1973.

William K. Danaher, Jr., Springfield, for defendants.

Frederick S. Pillsbury, Springfield, for plaintiff.

Before HALE, C.J., and GRANT and ARMSTRONG, JJ.

GRANT, Justice.

The plaintiffs are either physicians or dentists who occupy offices in two of the three office buildings owned and operated by the defendant at Nos. 110, 120 and 130 Maple Street in Springfield. Both bills seek declaratory and other relief with respect to the defendant's right (if any) to charge patients visiting the plaintiffs' offices for the use of automobile parking facilities which lie to the rear of all three buildings. The separate bill brought by the plaintiff Cooley, which was first in point of time, also seeks an injunction against the defendant's evicting that plaintiff from an office in the building at 130 Maple Street. The two cases were consolidated for trial in the Superior Court, where the trial judge filed voluntary findings of fact which he later adopted as a statutory report. The defendant has appealed from final decrees which enjoined him from evicting Cooley and which, in effect, required him to provide parking to the plaintiffs' patients without any charge to them. The evidence is reported.

THE PARKING CONTROVERSY

The three modern, multi-story office buildings in question were constructed by the defendant and a former partner during the period from 1954 through 1963. Automobile parking facilities have been constructed behind each building which run through to Dale Street in the rear. Since the completion of the facilities lying to the rear of No. 110 Maple Street the entire area devoted to parking has been operated as a single lot available for use in common by the tenants of all three buildings and by their employees and invitees. Access to and egress from the lot are provided by two driveways leading from Maple Street and one driveway leading from Dale Street. The lot contains approximately 650 parking spaces.

Each medical tenant ³ has received a printed form of lease drafted by the defendant which, in the parts here material, includes the following provisions: 'TWO: The (landlord) shall, without additional charge to the (tenant), in the manner customary in office buildings, furnish heat, electricity, elevator service, hot and cold water, air conditioning, window cleaning, emptying of waste baskets and ash-trays, and reasonable parking facilities for the (tenant) and his invitees without liability, however, for the cessation of any of said services when caused by circumstances beyond the control of the (landlord)'; 'TWELVE: If, for any reason, the parking facilities should be reduced by more than 10%, the (tenant) shall have the option to terminate this lease forthwith.' Each tenant covenanted to comply with a number of 'building rules' made parts of the lease, which included the following: '8. The (landlord)shall have the exclusive right to regulate and control the parking area and the (tenant) agrees to conform to such rules and regulations as may be established.' ⁴

From the time of the completion of the first parking facilities lying to the rear of No. 130 Maple Street until the spring of 1970 patients of the plaintiffs were permitted (with exceptions not here material) to use such parking facilities as were available without any charge to them and without any restriction on their access to or egress from the lot as from time to time constituted. By that time a problem had developed as a result of the use of the parking facilities by unauthorized persons. People living in the neighborhood or visiting nearby business or commercial establishments, students at nearby schools, and shoppers in the downtown Springfield business district had begun to park their automobiles in the lot in increasing numbers. Such unauthorized use of the lot occurred at all hours of the day, and some persons used the lot for overnight parking. The unauthorized use resulted in a shortage of parking spaces during peak business hours, increased the amount of trash deposited in the lot and caused considerable difficulty in keeping the lot clean and further difficulty with snow removal during the winter months.

At some unspecified point in time in the spring of 1970 the defendant installed gates at the entrances to and exits from the parking lot. He thereupon proposed unilaterally to implement a scheme designed to control or eliminate the use of the lot by unauthorized persons. Under the proposed scheme, which thereafter came to be known as the chit system, invitee patients of the plaintiffs and other medical tenants were to be required to deposit a twenty-five cent coin in a mechanical device in order to gain vehicular access to the lot. That sum was to be refundable to the patient upon his presentation at one of four (later reduced to three) business establishments located in various of the buildings of a chit which would be supplied by the defendant and which would require on its face the stamped validation of one of the approximately forty medical tenants, the date, the name of the patient and the patient's motor vehicle registration number. Upon learning of the defendant's intentions many of the medical tenants, led by the plaintiff Cooley, took the position that the imposition of any such scheme would be contrary to the defendant's obligations under art. 2 of the lease and banded together to oppose, by written petition and otherwise, the defendant's then pending application to the city council of Springfield for a license to operate the lot under the provisions of G.L. c. 148, § 56 (as most recently amended by St.1965, c. 444).

Following negotiations with Cooley and various of the medical tenants the defendant, on May 18, 1970, executed what the parties have referred to as an amendment ⁵ to the lease of all medical tenants, including the plaintiffs. The plaintiffs and other medical tenants then withdrew their opposition to the defendant's application for a license for the parking lot, which was thereupon granted by the city council. The essence of the scheme called for by the amendment was that the patients of all medical tenants should be permitted to enter the parking lot without payment of any initial charge and to leave the lot, also without charge, upon presentation to one of several attendants employed by the defendant of validated chits similar to the one already described. The plaintiffs and other medical tenants objected almost immediately to the manner in which the defendant sought to implement the bare provisions of the May 18 amendment, and they succeeded in persuading the city council to revoke the defendant's license on June 1, 1970. ⁶

During the period from approximately June 1, 1970, until September 13, 1971, ⁷ the defendant appears to have enforced the refundable chit system originally proposed by him prior to the lease amendment of May 18, 1970. During the period from September 14, 1971, and at least until the time these cases were heard in the Superior Court in December of 1971, only patients visiting the plaintiffs wre permitted to redeem chits. ⁸ With the implementation of the chit system the defendant's attendants were no longer required to be positioned at the gates and were free to patrol the lot in such fashion as to keep out the great majority of the unauthorized parkers who were willing to pay twenty-five cents to secure physical admission to the lot. There was evidence that as a result of the chit system patients of the medical tenants have seldom, if ever, experienced any real difficulty in finding parking spaces available during normal business hours. ⁹

The findings, rulings and decrees of the Superior Court were made and entered at times when the defendant did in fact hold a license for the operation of the parking lot under the provisions of G.L. c. 148, § 56, and the decrees understandably reflect the trial judge's views of the rights of the parties under the May 18, 1970, amendment of the leases of all medical tenants. We now know, both from the Bettigole case (see fn. 6) and from statements made by counsel at the oral argument of this case, that the defendant has had no such license since April 30, 1972, and that he has no present intention of seeking a similar license for any future period. As the amendment was, by its express terms (fn. 5), to apply only during such period as the defendants should have such a license, it follows that the decrees of the Superior Court do not and cannot terminate the parking controversy. In these circumstances we accede to the requests of counsel that we express our views on the rights of the parties under the original leases, unaffected by the amendment. See Wellesley College v. Attorney Gen., 313 Mass. 722, 731, 49 N.E.2d 220 (1943); McLaughlin v. Board of Appeals of Harwich, 359 Mass. ---, --- ^a, 269 N.E.2d 244; HARVARD V. MAXANT, MASS. , 275 N.E.2D 347.^B We are assisted in this process by certain subsidiary findings made by the trial judge.

We agree with the trial judge that the leases are ambiguous in the sense that they are silent on the question whether the defendant can charge the invitees of the medical tenants (as opposed to the tenants themselves) for parking and, therefore, that parol evidence was admissible to show the circumstances in which the leases were originally negotiated (Stoops v. Smith, 100 Mass. 63, 65--67 (1868); National Paper & Cordage Co., Inc. v. Atlantic Carton Corp., 332 Mass. 651, 653--654, 127 N.E.2d 196 (1955); Imper Realty Corp. v. Riss, 358 Mass. 529, 534--535, 265 N.E.2d 594 (1970); ROBERT INDUSTRIES, INC. V. SPENCE, MASS. , 291 N.E.2D 407)^C and to show the practical construction placed on the leases by the parties themselves (New York Cent. R.R. v. Stoneman, 233 Mass. 258, 262--263, 123 N.E. 679 (1919); ...