Manousos v. Sarkis

• Decision Date: 19 January 1981
• Citation: 416 N.E.2d 179,382 Mass. 317
• Parties: Demetra C. MANOUSOS et al., Trustees, 1 v. Charles F. SARKIS et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 179

416 N.E.2d 179

382 Mass. 317

Demetra C. MANOUSOS et al., Trustees, ¹ v. Charles F. SARKIS et al. ²

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Oct. 7, 1980.

Decided Jan. 19, 1981.

Edward Woll, Jr., Boston, for defendants.

Charles F. Choate, Boston (Harris G. Gorab, Boston, with him), for plaintiffs.

Before HENNESSEY, C. J., and KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

We hold that an interlocutory appeal challenging a determination of the amount of an injunction bond is not authorized as of right by G. L. c. 231, § 118. We therefore dismiss the appeal, although the parties will be free to secure review on appeal following final judgment. Packaging Indus. Group, Inc. v. Cheney, --- Mass. ---, --- ^a, 405 N.E.2d 106 (1980). Super Mkts., Inc. v. Peter's Mkt. Basket, Inc., 5 Mass.App. 750, 753, 370 N.E.2d 719 (1977).

On March 14, 1980, the defendants posted a $60,000 injunction bond required by the judge below for the continuation of an injunction which they had previously obtained without a bond. The defendants challenged this requirement and sought review in the Appeals Court. On May 15, 1980, we granted the defendants' application for direct appellate review. Except as noted, the facts are undisputed. On April 26, 1968, the trustees of a real estate trust (landlord), and the defendant Sarkis ³ executed a twenty-five year lease of property in Dedham, Massachusetts to be used as a restaurant. The present controversy began with a dispute concerning the apportionment of real estate taxes on the property and the interpretation of a "cost of living" clause in the lease. The landlord claimed that 1968 was the base year from which a cost of living rental increase was to be computed, while the tenants claimed that any such increase should be computed from a base year of 1978. The tenants tendered payment according to their interpretation of the lease and the landlord refused to accept such payment. The landlord then attempted to terminate the lease, and brought an action both to recover the accrued deficiency in real estate taxes claimed to be due and to declare the base year of the cost of living clause to be 1968. In response, the tenants sought to enjoin the landlord from taking any action terminating the lease or evicting the tenants.

This appeal arises from the issuance of the requested injunction on November 20, 1979. None of the parties contend that the issuance of the injunction was improper. The terms of the injunction, typewritten in their entirety except for the words we italicize here, concluded, "(t)his injunction is to be continued until March 3, 1980 at which time the court will determine the amount of bond to be filed." ⁴ This sentence reflects, claim the tenants, the motion judge's postponing until March 3, 1980, a determination as to whether and in what amount a bond would be required. The landlord claims that by its terms the injunction makes clear that a bond would indeed be required but that the determination of amount was delayed until March 3, 1980, to allow the landlord to obtain the December, 1979, consumer price index from which to compute his claimed damages. The landlord, pursuant to Mass.R.A.P. 8(e), as amended, --- Mass. --- (1979), petitioned a single justice to direct the lower court to certify and to transmit to this court a supplemental record of what transpired at the November 20 hearing. This petition was opposed by the tenants and was denied by the single justice. We think that the terms of the injunction and Mass.R.Civ.P. 65(c), 365 Mass. 832 (1974), make it quite clear that a bond would be required. We therefore consider the tenants' challenge to be directed at the amount of the bond.

Before the March 3, 1980, hearing the landlord filed a motion to dissolve the injunction or in the alternative to require a bond. At the hearing on March 3, 1980, the judge continued the injunction by the following notation handwritten in the margin of the landlord's proposed motion: "After a hearing, (b)ond set in amount of $60,000 (t)o be posted by 3/12/80 or injunction dissolved." The tenants obtained the bond and brought this appeal, claiming that the amount of the bond was established at $60,000, with no evidence to support such a figure, in order to secure the landlord's asserted claim to approximately $60,000 in unpaid rent. The tenants question the power of the motion judge to use an injunction bond to secure a subsequent judgment on the merits. As the tenants characterize the issue presented it is whether, having only evidence of the principal claim of the party enjoined, the judge can condition the continuation of the injunction on the posting of security in the amount of this principal claim.

The landlord, although asserting that the claim for unpaid rent is a proper measure to determine the amount of the bond, challenges the availability of appellate review. The landlord questions whether this appeal falls within the "narrow exception to our more general policy that interlocutory rulings may not be presented piecemeal" created by G. L. c. 231, § 118, second par. Packaging Indus. Group, Inc. v. Cheney, --- Mass. ---, --- ^b, 405 N.E.2d 106 (1980). We conclude that G. L. c. 231, § 118, does not authorize this interlocutory appeal.

General Laws c. 231, § 118, second par., as appearing in St. 1977, c. 405, provides that "(a) party aggrieved by an interlocutory order of a justice of the superior court ... granting, continuing, modifying, refusing or dissolving a preliminary injunction, or refusing to dissolve a preliminary injunction may appeal therefrom" to the Appeals Court or, subject to G. L. c. 211, § 10, to this court. Prior to the inclusion of this language in § 118, parties were not entitled to interlocutory appeals as of right from orders granting or denying preliminary injunctions. Before the enactment of G. L. c. 231, § 118, second par., we held that adoption of Mass.R.Civ.P. 65, 365 Mass. 832 (1974), did not incorporate "wholly statutory" Federal practice, see 28 U.S.C. § 1292(a)(1) (1976), ⁵ permitting interlocutory appeals as of right from orders granting or denying injunctive relief. Foreign Auto Imports, Inc. v. Renault Northeast, Inc., 367 Mass. 464, 468, 326 N.E.2d 888 (1975). Following our decision in Foreign Auto, the Legislature enacted G. L. c. 231, § 118, second par., the terms of which are virtually identical to 28 U.S.C. § 1292(a)(1) (1976). Where the Legislature in enacting a statute follows a Federal statute, we follow the adjudged construction of the Federal statute by the Federal courts. Packaging Indus. Group, Inc. v. Cheney, --- Mass. ---, --- ^c, 405 N.E.2d 106 (1980). We look, therefore, to the interpretation of 28 U.S.C. § 1292(a)(1) to resolve questions regarding interlocutory appellate review under G. L. c. 231, § 118. See Demoulas Super Mkts., Inc. v. Peter's Mkt. Basket, Inc., 5 Mass.App. 750, 752, 370 N.E.2d 719 (1977). See generally 9 Moore's Federal Practice pars. 110.20-110.21, 110.25 (1980 & Cum. Supp.); 16 C.A. Wright & A.R. Miller, Federal Practice and Procedure §§ 3920-3924 (1977); 11 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 2962 (1973).

In the Packaging Indus., case we observed that: "The Federal statute, like our own, creates an exception to the normal rule that only final judgments may be subject to appeals. See Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 178 (75 S.Ct. 249, 250, 99 L.Ed. 233) (1955); Pollack v. Kelly, 372 Mass. 469, 470-472, 362 N.E.2d 525 (1977). 'The exception is a narrow one and is keyed to the "need to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable consequence. " ' Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480, (98 S.Ct. 2451, 2453, 57 L.Ed.2d 364) (1978), quoting from Baltimore Contractors, Inc. v. Bodinger, supra (348 U.S.) at 181, (75 S.Ct. at 252). The statute thus creates only a narrow exception to our more general policy that interlocutory rulings may not be presented piecemeal to the Appeals Court or to this court for appellate review. Pollack v. Kelly, supra; Giacobbe v. First Coolidge Corp., 367 Mass. 309, 312, 325 N.E.2d 922 (1975) .... Therefore, G. L. c. 231, § 118, second par., is limited to orders that 'grant or protect at least part of the permanent relief sought as an ultimate result of the action.' 16 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 3921, at 10 (1977)." Packaging Indus. Group, Inc. v. Cheney, supra at --- ^d, 405 N.E.2d 106.

We think that the order conditioning the continuation of the injunction on the posting of a bond was intended to "protect at least part of the...