Opinion
16-P-99
02-21-2017
Stephen B. COMLEY, Second v. William N. LAZARIS & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
There is a long and tortured litigation history between the parties involving a way known as Fenno Drive in Rowley (way). In this action, the plaintiff, acting on behalf of various entities of which he is the principal, filed a complaint in 2011 seeking, among other relief, a declaration that he holds an implied easement by estoppel, prescription, or necessity over the way, as well as a preliminary and permanent injunction preventing the defendants from impeding his use of the way. In response, the defendants, William N. Lazaris, Susan S. Lazaris, Thomas Rasmussen, and Laura A. McBride, filed a counterclaim and sought a preliminary injunction as to the plaintiff's use of the way.
In 2015, a judge of the Superior Court ordered dismissal of the plaintiff's complaint, with prejudice, after the parties failed to perfect a settlement agreement, and, thereafter, enjoined him from maintaining a portion of the way. The plaintiff appeals. We reverse.
1. Dismissal with prejudice . On February 18, 2015, the parties reached a settlement, the terms of which were read into the record. In response to questions posed by the judge, counsel for each of the parties confirmed that their respective clients were in agreement with the main points of the stipulation. The judge then stated, "The record will reflect the fact that the parties have now entered into a stipulation agreement which will be further reduced to writing. A nisi order will issue out of this court." A ninety-day order of dismissal nisi, without prejudice, entered thereafter. At the plaintiff's request, the nisi period was extended more than once, with a final deadline established of August 21, 2015. At a status hearing on September 10, 2015, the judge found that the seven-month delay in completing the settlement was solely attributable to counsel for the plaintiff, and he ordered dismissal of the plaintiff's complaint with prejudice. Judgment entered accordingly. The plaintiff moved for reconsideration, which was denied.
The judiciary has the authority to bring cases to an end when a party fails to diligently prosecute them, either on its own motion or at the urging of the opposing party. See State Realty Co. of Boston, Inc . v. MacNeil Bros ., 358 Mass. 374, 379 (1970) ; Mass.R.Civ.P. 41(b), 365 Mass. 804 (1974). Nevertheless, involuntary dismissal is a "drastic sanction" where our "law strongly favors a trial on the merits of a claim." Monahan v. Washburn , 400 Mass. 126, 128-129 (1987). Accordingly, before ordering dismissal, a judge must find "convincing" evidence of unreasonable conduct or delay, and should consider factors such as the prejudice the opposing side would incur if the case were allowed to continue, and whether more suitable alternative penalties exist. Monahan , supra . In other words, except in extreme cases, the "mere passage of time" is not enough to warrant dismissal. School Comm. of Holyoke v. Duprey , 8 Mass. App. Ct. 58, 60-61 (1979).
On this record, we cannot say that such a severe sanction was warranted. While it is true that the plaintiff voluntarily took the laboring oar in order to complete the necessary actions contemplated by the agreement, a seven-month delay is not egregious, particularly where some actions were dependent on third parties such as the planning board of the town of Rowley. Nor are the defendants able to establish prejudice. Finally, the judge and the defendants had additional remedies available, short of the action taken. See Monahan , supra ; Dewing v. J.B. Driscoll Ins. Agency , 30 Mass. App. Ct. 467, 470-73 (1991).
2. Preliminary injunction . By order dated December 30, 2015, the judge issued a preliminary injunction enjoining the plaintiff from "repairing, maintaining or developing" the portion of the way abutting the defendant's property. The order also provides that it shall only be in effect "until such time as the Massachusetts Appeals Court enters Judgment regarding the dismissal with prejudice of Plaintiffs' Verified Complaint." Because this memorandum and order resolves the issue of the dismissal with prejudice, the plaintiff's claim as to the preliminary injunction is rendered moot.
Conclusion . The judgment of dismissal with prejudice is reversed and the case is ordered restored to the trial list.
So ordered .
Reversed.
On behalf of Sea View Retreat, Inc., Sea View Real Estate Trust, Fenno A Realty Trust, and Fenno B Realty Trust.