Katz v. Com.

• Decision Date: 04 December 1979
• Parties: Raanan KATZ v. COMMONWEALTH et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1055

399 N.E.2d 1055

379 Mass. 305

Raanan KATZ

v. COMMONWEALTH et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 12, 1979.

Decided Dec. 4, 1979.

Leslie H. Rudnick, Boston, for plaintiff.

John A. Mendlesohn, Asst. Atty. Gen., Boston, for the Commonwealth.

Harvey S. Shapiro, Boston, for Mary Saunders.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, LIACOS and ABRAMS, JJ.

BRAUCHER, Justice.

Raanan Katz, a landlord, was the plaintiff in two consolidated civil actions in the Housing Court of the City of Boston in which counterclaims were filed. A judge of that court found that the landlord had repeatedly failed to comply with court orders relating to discovery and had perjured himself in his answer to an interrogatory. The judge found him guilty of criminal contempt of court, and imposed sanctions. The landlord sought review by writ of error, and a single justice of this court reported the case to the full court without decision. We affirm the order and judgment of the Housing Court.

The landlord brought a summary process action in the Municipal Court of the Brighton District against two tenants of an apartment in Brighton, seeking possession and damages for unpaid rent. He also brought a civil action in the Brookline Municipal Court, seeking damages for unpaid rent in connection with the same premises. Both actions were transferred to the Housing Court in the spring of 1978, and they were later consolidated. One of the tenants filed motions to hold the landlord in criminal contempt. The judge issued orders to show cause, hearings were held, and the matter was taken under advisement at the close of a hearing on December 19, 1978. On April 24, 1979, the judge filed a document entitled "Findings of Fact, Conclusions of Law and Order for Judgment." Further motions and hearings resulted in amendments to the judge's findings and postponement of the sentence and fine imposed.

We summarize the judge's findings. On April 4, 1978, the landlord was served with interrogatories and a notice to produce documents, but he made no timely response. On June 14, 1978, the judge ordered compliance, but there was none. On June 30, 1978, the judge ordered compliance within seven days, and on the landlord's failure to comply the judge ordered judgment against the landlord on his claim for possession and rent. In addition, since the tenants still needed the discovery in connection with their counterclaims, the judge ordered the landlord to produce the documents and answer the interrogatories by August 18, 1978. On motion by one of the tenants and an order to show cause by the judge, contempt hearings were held on August 29 and September 6, 1978.

Among the documents called for were copies of all "records or evidence of payment (i. e., cancelled checks)" pertaining to the provision of fuel to heat the premises in issue after January 1, 1977. The landlord filed a print-out prepared by the company that supplied fuel oil; it showed deliveries to a number of properties but did not specify which deliveries were to the premises in issue. The landlord's response to the notice to produce, filed about August 23, 1978, represented that the print-out was "the only such full and complete record," and a supplementary response filed September 6, 1978, represented that the "invoices and payment receipts (including cancelled checks)" called for "are destroyed shortly after payments are made" and that "there is no record of payment in existence or in his possession" beyond the print-out. The court found this assertion incredible, continued the hearing to October 25, 1978, and ordered the landlord to bring with him designated records. At the October 25 hearing counsel for the landlord produced the cancelled checks in question and asserted that the supplementary response of September 6 had contained a "typographical error": the statement that all records of payment had been destroyed, "including cancelled checks," should have read "excluding cancelled checks." The judge concluded that there had been no "typographical error," and that the landlord deliberately disobeyed three orders to produce the cancelled checks. The judge also found that the landlord had other fuel delivery records in his possession on August 1, 1978, when he made his first fuel payment in five months, that he knew of the orders to produce such records, and that he did not produce them.

On August 28, 1978, the judge ordered the landlord to give full and complete answers within twenty-one days to the interrogatories propounded by the tenants. Answers were filed, and one of the tenants moved that the landlord be held in criminal contempt by reason of perjury in the answers. The judge issued an order to show cause, and a hearing was held on December 15 and 19, 1978. In answer to one of the interrogatories the landlord responded that "all repairs and maintenance" to the heat and hot water plant serving the premises "are performed by Atlas Oil Company." In fact, the judge found, during 1977 and 1978 repairs and maintenance were the responsibility of Peter A. Gianopoulos. The landlord's answer was false and he knew it was false, and it was material to the tenants' defenses and counterclaims.

The judge found that the landlord was guilty of criminal contempt of court beyond any reasonable doubt. Because of the landlord's "ongoing, repeated, blatant and willful defiance of the authority and power of the Court," the judge concluded that "punishment beyond monetary sanctions is in order." He ordered that judgment enter against the landlord on his claim for rent, that he be defaulted with respect to the counterclaims in both actions, and that hearings be scheduled by the clerk on assessment of damages. The judge awarded $2,000 in attorney's fees to counsel for the tenants, to be paid by the landlord within thirty days. He fined the landlord $5,000 and sentenced him to thirty days in the Charles Street jail. As an alternative to the thirty day sentence, the landlord was permitted to elect either (a) incarceration for eleven consecutive weekends, or (b) incarceration from 1 P.M. Friday to 8 A.M. Monday, and manual labor at the Charlestown Development of the Boston Housing Project for two consecutive eight hour days per week for fourteen consecutive weeks. The landlord has elected the latter alternative, but the fine and jail sentence have been stayed pending our decision.

1. The form and scope of review. The landlord sought review by writ of error by a petition filed in the county court. This was in accordance with our decisions in cases of criminal contempt. G.L. c. 250, § 9, repealed by St.1979, c. 344, § 13, effective July 1, 1979. Hurley v. Commonwealth, 188 Mass. 443, 445, 74 N.E. 677 (1905). See Connors, The Law of Contempt in Massachusetts: An Overview, 63 Mass.L.Rev. 161 171 (1978). Historically, review by writ of error was subject to severe limitations. Hansen v. Commonwealth, 344 Mass. 214, 222, 181 N.E.2d 843 (1962), and cases cited. But in modern times there was a "gradual and necessary expansion of the statutory writ of error . . . as a postconviction remedy broad enough to deal with constitutional problems arising under recent decisions of the Supreme Court of the United States." Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366, 376 n.9, 203 N.E.2d 811, 819 n.9 (1965), and cases cited. The result has been review of criminal contempt cases by writ of error comparable in scope to review of other cases by appeal, bill of exceptions, or even appeal from denial of a motion for new trial. See Sussman v. Commonwealth, --- Mass. ---, --- - --- ^a, 374 N.E.2d 1195 (1978), and cases cited.

"Questions of law arising out of the trial of civil contempts, so called, have been frequently presented to this court by a report." New England Novelty Co. v. Sandberg, 315 Mass. 739, 746, 54 N.E.2d 915, 917, cert. denied, 323 U.S. 740, 65 S.Ct. 63, 89 L.Ed. 593 (1944), and cases cited. In Godard v. Babson-Dow Mfg. Co., 319 Mass. 345, 348, 65 N.E.2d 555, 557 (1946), we held that a final decree in contempt proceedings was appealable like other final decrees in equity where the contempt consisted of disobedience to a final decree in equity "(and) was dealt with civilly and in no respect criminally." Where no issue has been made with respect to the review procedure, we have reviewed contempt adjudications much like the present one by appeal rather than by writ of error. Nickerson v. Dowd, 342 Mass. 462, 465, 174 N.E.2d 346 (1961). See Ainslie v. Ainslie, 6 Mass.App. ---, --- n.4 ^b, 382 N.E.2d 747 (1978). Indeed, "Massachusetts law has long refused to distinguish rigidly between the civil and criminal aspects of contempt of court. . . . A sentence for contempt in Massachusetts may be 'partly remedial and partly punitive, partaking both of civil and criminal features.' " Matter of DeSaulnier (No. 3), 360 Mass. 769, 772, 279 N.E.2d 287, 289 (1971), quoting Root v. MacDonald, 260 Mass. 344, 363, 157 N.E. 684 (1927).

When the Housing Court of the City of Boston was established, effective January 1, 1972, appellate review of its decisions was to be had directly by this court. G.L. c. 185A, § 26, as inserted by St.1971, c. 843, § 1. Commonwealth v. Haddad, 364 Mass. 795, 797, 308 N.E.2d 899 (1974). Cf. Commonwealth v. Olivo, 369 Mass. 62, 65-66, 337 N.E.2d 904 (1975) (Housing Court of the County of Hampden). Later amendments provided for appeals to the Appeals Court instead. G.L. c. 185A, § 26, as amended by St.1973, c. 1114, § 41, repealed by St.1974, c. 700, § 17. G.L. c. 185A, § 24, as amended by St.1974, c. 700, § 16, and St.1975, c. 667, § 2. The repeal of those provisions and the substitution of G.L. c. 185C by St.1978, c. 478, §§ 91, 92, were not intended to make any change in this respect. Cf. G.L. c. 231, § 113, as appearing in St.1973, c. 1114, § 202, relating to civil appeals.

Effective July 1, 1979, the statute providing for writs of error...