Wolfe v. Gormally

• Decision Date: 06 November 2003
• Citation: 802 NE 2d 64,440 Mass. 699
• Parties: WAYNE D. WOLFE & others vs. JOHN J. GORMALLY, JR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

440 Mass. 699

802 NE 2d 64

WAYNE D. WOLFE & others¹ vs. JOHN J. GORMALLY, JR.

Supreme Judicial Court of Massachusetts, Suffolk.

November 6, 2003.

January 16, 2004.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

Wendy H. Sibbison for the plaintiffs.

Christopher B. Myhrum for the defendant. William V. Hovey, pro se, amicus curiae, submitted a brief.

IRELAND, J.

This case raises the question whether the record title of real estate should reflect the pendency of any action that "affects the title to real property or the use and occupation thereof" as that phrase is used in the first paragraph of the lis pendens statute, G. L. c. 184, § 15, as amended through St. 1985, c. 809.² It arises out of a common scheme of restrictive covenants imposed on a subdivision by the original developer and later reimposed by the successor developer, who sold some of the lots to the defendant, John J. Gormally, Jr. (developer), who now seeks to develop these lots allegedly in violation of the restrictions.³ The plaintiff landowners seek to enforce the restrictions and argue that the Land Court properly approved their memorandum of lis pendens because the underlying action "affects" the title to the lots at issue. The developer contends that the landowners are not entitled to the lis pendens because the subject matter of their action does not constitute a "claim of a right to title" to real property. Because we conclude that the record title of real estate should reflect the pendency of any action to enforce a properly imposed plan of restrictive covenants, where such an action "affects the title to real property or the use and occupation thereof," as that phrase is used in the first paragraph of the statute, we affirm the issuance of the lis pendens by the Land Court.

Background.

The written, recorded restrictive covenants that form the basis of this suit were adopted by the original subdivision developers in 1989 and reimposed by the successor developer in 1995. These covenants both benefited the lots on which they were imposed, in assuring that the other lots of the subdivision would be developed consistent with the restrictions, and burdened each lot in compelling compliance with the restrictions. In 2000, the successor developer sold some of the lots to the defendant developer, who now seeks to build on these lots.

In the Land Court, the landowners sought both the enforcement of written restrictive covenants applicable to subdivision property owned by the developer, and ex parte approval of a memorandum of lis pendens, pursuant to the statute. Following the form identified in the second paragraph of the statute, the Land Court judge made the finding that the "subject matter of action constitutes a claim of a right to title to real property or the use and occupation thereof," and approved the lis pendens. The developer moved to dissolve the lis pendens. The judge denied the motion, and the developer petitioned for interlocutory relief to a single justice of the Appeals Court, pursuant to the statute and G. L. c. 231, § 118, first par. The single justice dissolved the memorandum of lis pendens and the landowners appealed from that ruling to a panel of the Appeals Court. See G. L. c. 231, § 118, second par.; Sutherland v. Aolean Dev. Corp., 399 Mass. 36, 39-40 (1987).

While the appeal was pending, the underlying case proceeded in the Land Court. After the landowners filed an amended complaint, the developer moved that the Appeals Court dismiss the appeal as moot, arguing that, because the amended complaint superseded the complaint pursuant to which the memorandum of lis pendens had been recorded, the landowners had to seek a new lis pendens. The motion was denied, but the parties were granted "leave to raise the mootness issue in their briefs." We granted the landowners' application for direct appellate review.

Discussion.

1. Standard of review. An appeal from the Land Court order brings before us "only questions of law apparent upon the record. Findings of fact cannot be revised." Cerel v. Framingham, 342 Mass. 17, 18 (1961). The question before us is whether the Land Court's "ultimate order is correct in law upon the facts found by the judge in [her] decision." Ide v. Bowden, 342 Mass. 22, 24 (1961).

2. G. L. c. 184, § 15. a. Statute's evolution and purpose. The purpose of the statute is to remedy a harsh common-law lis pendens rule by ensuring that prospective buyers have the benefit of recorded notice of certain lawsuits. Under the common law, if the subject property was sold "lis pendens," i.e., while the suit was pending, a buyer without notice of the litigation was nonetheless "bound by the judgment." J.L. Bennett, Lis Pendens 65 (1887). The statute, first enacted by St. 1877, c. 229, §§ 1, 3, "ameliorated the harsh effects of the common law rule" by providing that buyers acquiring interest in property subject to suit were not bound by the judgment unless "a memorandum of lis pendens was filed in the registry of deeds before the acquisition." Debral Realty, Inc. v. DiChiara, 383 Mass. 559, 560, 561 (1981). See Heller v. Turner Bros. Constr., 40 Mass. App. Ct. 363, 366 (1996). The statute thus allowed courts to retain control over the subject matter of the litigation while the action was pending, F.T. Talty, P.S. Talty, & A.L. Braunstein, Methods of Practice § 8:19 (4th ed. 2000), and protected prospective buyers by enabling them to obtain "notice of pending litigation affecting title" through the registry of deeds, in the same way that they searched for record encumbrances. Debral Realty, Inc. v. DiChiara, supra at 561, 562.

Until the 1985 amendment to G. L. c. 184, § 15, a litigant could record a lis pendens in any case "affect[ing] the title to real property or [its] use and occupation" without court approval or notice to the other party. The purpose of St. 1985, c. 809, inserting the second paragraph, discussed infra, was to add procedural safeguards to the formerly unfettered right to record a lis pendens. As a result of the amendment, plaintiffs are now required to obtain judicial authorization before recording a memorandum of lis pendens, which "any party aggrieved" may contest. Sutherland v. Aolean Dev. Corp., supra at 38 & n.3.

b. Disputed statutory provisions. The scope of the statute, defined in two seemingly conflicting clauses, is facially ambiguous. The first paragraph of G. L. c. 184, § 15, states that a legal proceeding "which affects the title to real property or the use and occupation thereof" (emphasis added) is only effective against "the parties thereto, their heirs and devisees" and persons with actual notice of the proceeding, unless a memorandum of lis pendens is recorded. In contrast, the second paragraph, appears, at first blush, to confine the statute's scope to a much narrower class of claims in providing that a lis pendens may be recorded only if a judge makes a finding that "the subject matter of the action constitutes a claim of a right to title to real property or the use and occupation thereof" (emphasis added). The relevant language was retained when the statute was rewritten in 2002.

In ordering the lis pendens dissolved, the single justice of the Appeals Court disregarded the language of the first paragraph and relied solely on the more restrictive language of the second paragraph. The landowners argue that despite its limiting language, the second paragraph permits judicial endorsement of memoranda of lis pendens in all actions affecting title. We agree c. Statutory construction. A basic tenet of statutory construction requires that a statute "be construed `so that effect is given to all its provisions, so that no part will be inoperative or superfluous.'" Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140 (1998), quoting 2A N. Singer, Sutherland Statutory Construction § 46.06 (5th ed. 1992).<sup>4</sup> Where, as here, a statute contains seemingly conflicting language, a court must "interpret . . . [it], if possible, so `as to make it an effectual piece of legislation in harmony with common sense and sound reason,'" Massachusetts Comm'n Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 190 (1976), quoting Atlas Distrib. Co. v. Alcoholic Beverages Control Comm'n, 354 Mass. 408, 414 (1968), and "tak[ing] care to . . . carry out the legislative intent." Massachusetts Comm'n Against Discrimination v. Liberty Mut. Ins. Co., supra,

and cases cited. The statute must be viewed "as a whole"; it is "not proper to confine interpretation to the one section to be construed." 2A N. Singer, Sutherland Statutory Construction § 46.05, at 154 (6th ed. 2000). Nor may a court "accept the literal meaning of the words of a statute without regard for that statute's purpose and history." Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 839 (1986), and cases cited. On the contrary, if a court concludes that "the general meaning and object of the statute should be found inconsistent with the literal import of any particular clause or section, such clause or section must, if possible, be construed according to the spirit of the act." Saccone v. State Ethics Comm'n, 395 Mass. 326, 334 (1985), quoting Holbrook v. Holbrook, 1 Pick. 248, 250 (1823).

When the Legislature added the second paragraph in 1985, it left intact the statute's broad scope set forth in the first paragraph.⁵ Furthermore, rewriting the statute in 2002, the Legislature not only retained the "affect[ing] the title" language in the first paragraph, but added it in other paragraphs. St. 2002, c. 496, § 2. For example, the statute now contains a mechanism for expedited removal of an unjustified lis pendens, including dismissal of frivolous claims supporting an approved lis pendens. G. L. c. 184, § 15 (c), as appearing in St. 2002, c. 496, § 2. The language of this section is especially important, because it now allows a judge to dissolve a lis pendens if the judge ...