Kargman v. Superior Court

• Decision Date: 08 November 1976
• Citation: 371 Mass. 324,357 N.E.2d 300
• Parties: Max R. KARGMAN et al. 1 v. . 2 Supreme Judicial Court of Massachusetts, Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 300

357 N.E.2d 300

371 Mass. 324

Max R. KARGMAN et al. ¹

v. SUPERIOR COURT et al. ²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 15, 1976.

Decided Nov. 8, 1976.

Marcus E. Cohn, Boston, for plaintiffs.

Paula R. Rosen, Asst. Atty. Gen., for Superior Court.

Max D. Stern, Boston, for Mandred Henry, intervener.

Before QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

QUIRICO, Justice.

This is another in a now long line of recent cases in which a litigant seeks to obtain full appellate review by this court of an interlocutory ruling or order which has not been reported by the judge who entered it, and we hold, once again, that such review is not available in these circumstances, regardless of the procedural vehicle by which it is sought. We summarize briefly the prolonged litigation which resulted in the request for review to this court.

In 1972 and 1973 disputes arose between the plaintiffs (landlords) and many of their tenants (tenants) then living in the landlords' residential development located in the city of Worcester. The tenants formed what has been referred to as a 'tenants union' and some of them stopped paying part or all of their rent. As a result the landlords gave the tenants notice to vacate and in 1973 and 1974 the landlords entered separate summary process actions (G.L. c. 239, § 1) in a District Court against eighty-one of the tenants for alleged nonpayment of rent. The trial of these actions in the District Court extended over thirty-five days and resulted in a decision on September 13, 1974, that judgment for possession of the premises should issue against any tenant who failed to make certain payments of back rent by a prescribed date. Twenty-two of the original tenants vacated their premises before the end of that trial and ten more at a later date. On November 22, 1974, judgments were entered against the remaining tenants and they appealed therefrom to the Superior Court. The appeals were entered in the latter court on December 13, 1974. (G.L. c. 231, § 97, and G.L. c. 239, § 3.) The District Court judge relieved the appealing tenants from the statutory requirement that they give a bond securing the payment of rent then due or rent which might become due pending the appeal, costs, and certain damages which might be sustained by the landlords. G.L. c. 239, § 5, as amended by St.1971, c. 347, § 1.

On January 10, 1975, the landlords filed a motion in the Superior Court asking that the appealing tenants be ordered, as a condition of maintaining their appeals, to pay (a) a specified amount of rent allegedly due in arrears, and (b) monthly rent in the future at a specified level. The motion was denied on January 20, 1975, 'without prejudice' and with the proviso that the tenants 'are to pay the basic rent as long as they occupy the premises.' The landlords moved for 'clarification' of that order without success.

On February 11, 1975, a judge of the Superior Court, sua sponte, entered two orders by which he referred all of the tenants' appeals to a master pursuant to the provisions of Mass.R.Civ.P. 53, 365 Mass. 817 (1974), and Rule 49 of the Superior Court (1974). The orders were in the standard form prescribed by Rule 49, par. 9, of the Superior Court (1974), and contained the following provisions, inter alia, 'The Master will hear the parties, examine their vouchers and evidence, and state accounts. He shall make findings of fact and conclusions of law, and set them forth in his report, including all subsidiary findings of fact upon each issue. He shall not file with his report a transcript of the evidence and of the proceedings.' Simultaneously with the entry of the order of reference the judge filed the following statement in relation thereto: 'I am referring all of the above cases to the Honorable Morris N. Gould as Master because these cases were tried for thirty-five (35) days in the District Court, extensive findings of fact have been made, and because a retrial of these cases in the Superior Court involve tremendous expense to the taxpayers and to the Government.' The master thus appointed to hear these cases was the same person who had heard and decided them in his capacity as a full-time presiding judge of the District Court, and we take judicial notice of the fact that he continues to serve in the latter capacity. On February 13, 1975, the landlords filed a motion to revoke the orders of reference to the master, and an objection to such orders. The principal ground of the motion is that in the circumstances the reference of the 'cases to a Master, facts not final, represents a complete destruction of the summary process procedure envisioned by the legislature to permit the plaintiff to speedily recover possession, or litigate its right to possession of its real property, and the delay which will be occasioned by the reference to a Master and subsequent trials constitutes a deprivation of due process in violation of the plaintiff's rights under the Fourteenth Amendment to the Constitution of the United States and under Article XI of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts.' The principal basis for the objection to the reference of the cases to the master is that the person selected therefore 'has formed and expressed an opinion on the presentation of evidence before him, has decided the facts and has rendered judgment in accordance with his findings,' with the result that the landlords would be denied their constitutional rights of due process under both the Federal and State Constitutions. There were additional grounds of objection to the reference of the cases to the master, but we need not consider them for the purposes of this opinion. On February 20, 1975, the judge of the Superior Court denied the motion on the basis of a statement of reasons which is reproduced in full in the margin of this opinion. ³

Counsel for the landlords and tenants appeared before the master on March 10, 1975, and were advised by him that he would not hear any evidence which he had previously heard in the District Court proceedings in the same cases, and that the hearings before him would not be de novo. As a result thereof the landlords again filed a motion to revoke the orders of reference and it was denied by the judge of the Superior Court on March 24, 1975. Counsel again appeared before the master on April 28, 1975, at which time they were advised by him that he would consider the requests for findings of fact which had been submitted by the tenants and that he intended to write his report as master without hearing any evidence. The landlords filed no requests for findings. There is no indication in the record on appeal before us to indicate whether the master has filed his report to date.

At this point on April 29, 1975, the landlords filed a complaint in this court for Suffolk County, alleging substantially the facts summarized above, the allegations being made either directly or by incorporation of the earlier pleadings and documents filed in the District or Superior Court in the course of the continuing dispute, and asking the single justice to grant them relief under the powers of 'general superintendence of all courts of inferior jurisdiction' granted by G.L. c. 211, § 3, as amended through St.1973, c. 1114, § 44. The action was originally brought against a Justice of the Superior Court, and at a later date one of the tenants against whom an action of summary process was pending in the Superior Court was allowed to become a party as a defendant-intervener. The landlords requested both temporary and permanent relief from the interlocutory action of the judge of the Superior Court with regard to the denial of interim rent relief pending the appeal from the District Court to that court, and also with regard to the reference of the actions to the particular master who had previously decided the same cases in his capacity as a judge of the District Court.

The landlords' prayer for a temporary injunction was heard by a single justice and denied by him on June 9, 1975. There is no evidence of an appeal from that denial in the record before us. The case ultimately came on for hearing before another single justice who ordered that it be dismissed by a judgment to that effect entered on January 9, 1976, and the landlords appealed therefrom on January 30, 1976. Neither of the single justices has reported his ruling, order, or judgment to the full court for appellate review. The landlords assume and argue that they are entitled to appellate review by the full court on the action taken by both single justices. We hold, for the reasons stated below, that they are not, without regard to whether they ever claimed an appeal from the denial of a temporary injunction.

The action of the judge of the Superior Court which the landlords sought to have reviewed by the single justices of this court was in all respects interlocutory, both with respect to the denial of interim relief pending trial of the summary process actions on their merits and to the reference of the actions to a master. Additionally, it was discretionary with the judge whether he would grant interim relief and also whether he would refer the actions to a master for hearing. In the recent cases of Orasz v. Colonial Tavern, Inc., 365 Mass. 131, 138, 310 N.E.2d 311 (1974), and again in Giacobbe v. First Coolidge Corp., --- Mass. ---, --- - --- ^a, 325 N.E.2d 922 (1975), we cited and quoted from our opinion in Weil v. Boston Elevated Ry., ...