Haggerty v. Iannacci, 962745
| Decision Date | 08 February 1999 |
| Docket Number | 962745 |
| Citation | 1999 MBAR 197 |
| Parties | Francis X. Haggerty v. Joseph Iannacci et al. |
| Court | Massachusetts Superior Court |
Mass L. Rptr. Cite: 10 Mass. L. Rptr. 271
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): MCHUGH
This is a civil action brought by Francis X. Haggerty ("Haggerty"), individually and by his guardian James M. Haggerty, against Joseph Iannacci ("Iannacci") and the Commonwealth of Massachusetts ("Commonwealth"). Haggerty and the Commonwealth have filed cross-motions for summary judgment on counts III and IV of Haggerty's First Amended Complaint.1 For the reasons stated below, judgment is allowed for Haggerty.
The record in this case indicates that the following material facts are undisputed:
Haggerty has a drug and alcohol problem of long standing. In 1994 Haggerty made the acquaintance of Iannacci, a drug dealer, from whom he subsequently purchased drugs. On March 24, 1995, Iannacci was arrested and subsequently arraigned in Middlesex Superior Court on charges of trafficking in cocaine and other drug offenses. Bail was set at $250,000 surety bond or $25,000 cash. From jail, Iannacci called Haggerty, asked for bail money and promised to repay Haggerty whatever he contributed towards Iannacci's bail. On May 2, 1995, Haggerty, eager to spring Iannacci, delivered to the office of Iannacci's attorney, John McBride, $20,000 towards Iannacci's bail. The $20,000 consisted of a treasurer's check for $9,000 payable to the Clerk of Middlesex Superior Court and $11,000 in cash.
On May 3, 1995, Iannacci, having raised the other $5,000 on his own, posted the $25,000 and was released. Iannacci, however, listed only himself as the surety on his recognizance and his was the only name on the bail receipt. The day he was released, Iannacci met Haggerty and told him that he could not repay him immediately. He promised to do so when he could and gave Haggerty the bail receipt. When, shortly thereafter, James M. Haggerty was appointed Haggerty's guardian, Haggerty turned the bail receipt over to him.
Iannacci never repaid Haggerty and both Haggertys began at some point to fear he never would. Accordingly, they filed this case against Iannacci on May 9, 1996, the day Iannacci's case was initially scheduled for trial. They named Iannacci and the Clerk of Court for Middlesex County as defendants, the latter as an alleged "Defendant In Trustee Process." At the time they filed the action, they filed a "Motion Of The Plaintiff Upon Short Order Of Notice To Correct Court Records Concerning Identity Of Sureties On Bail Of Joseph Iannacci," seeking an order compelling the Clerk to recognize Haggerty as a co-surety on Iannacci's bail to the extent of $20,000. Attached to the motion were a supporting affidavit from Haggerty and exhibits, including a copy of the recognizance. The motion was presented to and allowed by the court (Brassard, J.) ex parte and the requested order issued.
Haggerty's attorney then filed a copy of the order in the criminal session where Iannacci's case was being called and also filed a "Motion Of Co-Surety To Surrender Of Defendant And Return Bail Money To Co-Surety." Before the motion was heard, Haggerty's attorney gave a copy of his motion and a copy of this court's order to Iannacci's attorney and to Michael Friedland, the Assistant District Attorney who was handling the criminal case. Present in the courtroom when the motion was heard were Mr. Friedland, Inspector William Jolly of the Woburn Police Department, Iannacci and Mr. Iannacci's attorney. Mr. Iannacci's attorney opposed the motion. Friedland took no position on it although Inspector Jolly had told Friedland that he desired Iannacci's surrender.
After the hearing, the court (Grasso, J.) denied the motion, and instead entered an order that no bail money was to be returned to Iannacci without the joint signatures of Haggerty and Iannacci.2 Haggerty's status as a co-surety was reaffirmed in a subsequent order in this case on June 17, 1996,3 a copy of which was docketed the same day in the criminal case.4
Mr. Friedland did not believe on May 9, 1996 that the Commonwealth was prejudiced by naming of Haggerty as a co-surety. Mr. Friedland later examined all the papers on file in the present case and was of the opinion that the Commonwealth had no interest in its outcome. Accordingly, the Commonwealth filed no motion to intervene.
Unfortunately for all concerned, Iannacci defaulted on July 21, 1997 when his case was called for trial. Consequently, on August 15, 1997, the Commonwealth served on Mr. Haggerty a motion for forfeiture of bail. The motion was heard in the First Criminal Session on August 29, 1997. At the hearing, the Commonwealth made no claim that Haggerty had been improperly designated a co-surety. At the conclusion of the hearing, the Court (Barrett, J.) ordered $5,000 of the bail forfeited and deferred judgment on the remaining $20,000 pending the outcome of this action.5
In September of 1997, Mr. Haggerty filed his First Amended Complaint in this action. The First Amended Complaint added the Commonwealth as a defendant and added counts III and IV. Count III seeks a declaratory judgment under G.L.c. 231A, 1 et seq. that Haggerty is exonerated from liability as a surety and/or that the Commonwealth's failure to return to Mr. Haggerty $20,000 of the bail money is a breach of contractual obligations implied by law. Count IV seeks a declaratory judgment under G.L.c. 231A, 1 et seq. that G.L.c. 276, 74 requires the Commonwealth to show cause why, in the interests of justice, Mr. Haggerty's interest in the bail should be forfeited.6
The Commonwealth filed a motion to dismiss the action which the court (Neel, J.) denied without opinion on December 15, 1997. Now before the Court, as stated, are the Commonwealth's motion for summary judgment on counts III and IV of the First Amended Complaint and Haggerty's cross-motion for summary judgment on the same counts.
1. Standard
Summary judgment is appropriate where there are no genuine issues of material fact and where the record entitles the moving party to judgment as a matter of law. Cassesso v. Comm'r of Correction, 390 Mass. 419, 422 (1983); Mass.R.Civ.P 56(c). The moving party bears the burden of affirmatively demonstrating that there is no genuine issue of material fact on any relevant issue. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). Once the moving party has satisfied its burden, the opponent then has the burden of responding with specific facts showing that there is a genuine triable issue on some relevant issue. John B. Deary, Inc. v. Crane, 4 Mass.App.Ct. 719, 722 (1976). A party who does not bear the burden of proof at trial may demonstrate the absence of a triable issue either by submitting affirmative evidence negating an essential element of the other party's case or by showing that the other party has no reasonable expectation of proving an essential element of its case at trial. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
2. Is Haggerty a Surety?
The Commonwealth first claims that it never entered into a suretyship agreement with Haggerty and that Haggerty never assumed the obligations of a surety in regard to Iannacci's recognizance on bail. It is simply too late in the day for the Commonwealth to make that argument.
After Haggerty obtained the ex parte order in this case naming him as a surety, he showed that order to Mr. Friedland, the Assistant District Attorney who was responsible for the criminal case, or at least alerted him, through filing the that he claimed to be a co-surety and had obtained at least some judicial approval of that claim. The Commonwealth made no contention, then and there, that Haggerty was not a co-surety or that Haggerty's motion was somehow deficient because it failed to account for the absence of a contract running directly between Haggerty and the Commonwealth. Had the Commonwealth then objected, on grounds that Haggerty had not assumed the duties of a surety properly, or on grounds of Haggerty's general unsuitability to be a surety or on any other grounds, Haggerty could then and there have sought to disprove them. Most important, had the Commonwealth suggested, as it apparently does now, that the nature of the Iannacci-Haggerty relationship was insufficient to make Haggerty a surety, Haggerty could have examined Iannacci, who was then in the courtroom but who, now that the Commonwealth has raised the issue of Haggerty's status, is somewhere unknown.
On succeeding occasions when Iannacci appeared in court, Haggerty was there as well and the Commonwealth raised no issue concerning Haggerty's suretyship status. On June 17, 1996, this court entered in this case an order requiring the clerk to insure that the Court records reflected Haggerty's status as a co-surety. At all times thereafter indeed, at all times since May 9, 1996 those records in fact have reflected Haggerty's status as a surety. At no point did the Commonwealth object to Haggerty's status and at no point did it seek to intervene in this action, as it surely had a right to do, see Mass.R.Civ.P. 24(a)(2), to contest that status or to seek a modification of the preliminary orders the court had entered.7
The Commonwealth thus stood by silently while Haggerty, Iannacci and the court all were visibly acting on the premise that Haggerty in fact had a suretyship relation with the Commonwealth. It is true, of course, that silence frequently does not prevent one from later making a statement he or she could have made at the time he or she elected to stand mute. See, e.g., Marsh v....
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