Opinion
16–P–894
08-28-2017
William CRANMORE, trustee,& another v. CWC BUILDERS, INC., & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, William Cranmore and Savanna Palace, Inc. (Savanna), brought this action against the defendants seeking to recover costs and damages for the initial release of water and the continuing flow of water onto Cranmore's property resulting from the defendants' construction-related activities on the abutting uphill property belonging to the Boston Housing Authority (project). A judge in the business litigation section of the Superior Court allowed defendant Walsh Corp.'s emergency motion to dismiss the plaintiffs' complaint pursuant to Mass.R.Civ.P. 41(b)(1) or (2), 365 Mass. 803 (1974), and dismissed the plaintiffs' claims with prejudice for lack of prosecution; judgment entered for the defendants. The plaintiffs appeal, arguing that the sanction was unreasonable as the judge erroneously concluded that the plaintiffs were at fault for the delays; the defendants failed to demonstrate prejudice; and a lesser sanction would have been more appropriate. We agree, and reverse.
This action originates from the Boston Housing Authority's (BHA) redevelopment of the Franklin Hill development, which included substantial site modification and razing existing apartment buildings, replacing them with a 266–unit mix of apartments and townhouse condominiums. Sometime prior to June 2, 2008, BHA entered into a venture with multiple entities to redevelop the Franklin Hill development. Cranmore's property is abutting and located downhill from the Franklin Hill development. Savanna is a tenant on the Cranmore property. The plaintiffs allege that on June 2, 2008, in the course of predevelopment work, hoses were attached to the city of Boston fire hydrants and used during the demolition process. The hydrants were left open overnight within the locked construction site. Water then flowed continuously onto Cranmore's property overnight causing extensive damage to the building and the personal property of Cranmore and Savanna. After the June 2 to 3, 2008, flooding, demolition site modification work at the project continued. The city of Boston hydrants were continuously used to hose down buildings and the surrounding properties during the course of the demolition and site work. Water continued to flow onto Cranmore's property, causing further damage.
The cross claims, counterclaims, and third party claims were dismissed without prejudice, as moot.
Given the result we reach, we need not address the plaintiffs' further argument that it was error to dismiss their claims with prejudice, where they have alleged that the defendants' actions constitute a continuing nuisance.
Background. This case has an extensive procedural history spanning more than six years. Cranmore filed this civil action on February 1, 2010, seeking to recover costs and damages caused to his property located at 879–881 Blue Hill Avenue in the Dorchester section of Boston (property). At the outset of the litigation, Cranmore was represented by Attorneys Mark Roberts and Jennifer Bernazani–Ludlum.
On May 28, 2010, a judge, who was not the motion judge, allowed a joint motion to amend the tracking order, and scheduled the pretrial conference for October 11, 2011. In July, 2010, Attorneys Roberts and Bernazani–Ludlum withdrew as plaintiffs' counsel; at the same time, Attorney Paul Glickman filed his notice of appearance. On February 9, 2011, the plaintiffs Cranmore and Chubb Custom Insurance Company (Chubb) filed an amended complaint, adding Savanna as a coplaintiff in its capacity as a tenant of the property. On March 10, 2011, a motion of the defendant NASDI, LLC, seeking to reschedule the pretrial conference to February 11, 2012, was allowed. On July 25, 2011, another joint motion to extend the tracking order was allowed, rescheduling the pretrial conference to April 30, 2012.
On April 2, 2010, Cranmore had moved to consolidate his case with a matter brought by Chubb; that consolidation was approved on April 8, 2010. The Chubb portion of this action has been settled and is not relevant to the present appeal.
On December 2, 2011, the parties' joint motion to amend the tracking deadlines was allowed, setting the pretrial conference for August 31, 2012. On April 27, 2012, the defendants and Chubb again sought to reschedule the pretrial conference, to which Cranmore and Savanna filed a written opposition. In their opposition, Cranmore and Savanna argued that, although the stated reason for requesting the extension was the difficulty in scheduling depositions due to "unavailability and trial schedules of various attorneys," "no deposition has been delayed or rescheduled due to the unavailability of the undersigned [p]laintiffs' counsel." They also contended in their opposition that damages continued to accrue "from the ongoing flow of water from the project at issue in this case and because [p]laintiffs[ ] cannot properly utilize their property until this matter is resolved."
On October 2, 2012, another joint motion by Chubb and the defendants was allowed, pushing the pretrial conference to June, 2013; Cranmore and Savanna took no position on that motion. On March 25, 2013, the defendants' and Chubb's further motion to extend was allowed, setting the pretrial conference in September, 2013, and ordering that no further extensions would be granted; Cranmore filed an opposition, seeking a six-week extension rather than the twelve weeks requested in the motion, citing the continuing damage to the property and an inability to secure a lease with a potential new tenant.
On April 3, 2013, Attorney Glickman withdrew as plaintiffs' counsel; no reason was given. On April 5, 2013, Attorney Stephen Schultz entered a brief appearance on behalf of the plaintiffs; his emergency motion to withdraw was allowed on June 17, 2013. On June 20, 2013, the parties stipulated to a revised tracking order, and the final pretrial conference was set to be rescheduled upon the court's receipt of a status report from the parties due on November 15, 2013. Shortly thereafter, Attorney Glickman again filed his appearance for plaintiffs Cranmore and Savanna.
In the meantime, the plaintiffs' motion to amend the tracking deadline was denied, due to the March 25 order that no further extensions would be allowed.
The matter was subsequently scheduled for mediation in March, 2014, and it was therefore agreed that the pretrial conference would be postponed until May 27, 2014. Mediation was unsuccessful, and another joint request was made to reschedule; after several additional joint motions, the final pretrial conference eventually was set for October 26, 2015, with a trial date of January 11, 2016.
At the pretrial conference held on October 26, 2015, the parties again agreed to try mediation. The case was subsequently transferred to the business litigation session. After a status conference on December 9, 2015, the parties again attempted mediation without success. After a hearing, and upon citing an "irreconcilable breakdown in the attorney-client relationship," Attorney Glickman's request to withdraw as plaintiffs' counsel, opposed by Cranmore, was allowed on January 4, 2016. Cranmore and Savanna were ordered to appear on January 11, 2016, and to find new counsel.
On January 11, 2016, the plaintiffs were present with Attorney Raymond Ausrotas, making a limited appearance for the sole purpose of seeking a continuance of the trial scheduled for that day until such time as his firm could evaluate whether it could undertake the case. Attorney Ausrotas informed the judge that he had agreed to appear "to see if there could be an appropriate arrangement that would be made for the purpose of trying the case." He proposed "that in the event that either arrangements with [him] or alternative counsel were successful for the purposes of retention for trial, this [case] will be trial ready in March," suggesting a continuance "on the order of 60 to 90 day[s]."
Attorney Ausrotas orally opposed the motion of defendant Walsh Corp. (joined orally by the other defendants) that sought to dismiss the case for lack of prosecution. He argued that "the parties all together went to mediate the matter less than a month ago" and that "[t]his isn't a case where a party has disappeared and not been pursuing its claims. Chubb was active in the matter up to and through last month. This hasn't been sitting stale and dormant. Rather, it's a case that settlement talks broke down."
Ultimately, the judge found that, because Cranmore and Savanna had not made any arrangements for successor counsel to take over the case for trial on January 11, 2016, the option of continuing the trial date for a short time, say a week or two, was not available. As a result, after finding the plaintiffs at fault for not being prepared for trial and "for the breakdown in their relationship with their lawyers," the judge concluded that "the [d]efendants will be unfairly prejudiced if trial is continued for several months in order to give [p]laintiffs time to retain new counsel and allow counsel to learn the case and prepare to try it." The judge allowed the written and oral motions to dismiss the action with prejudice for lack of prosecution. The plaintiffs timely appealed.
In addition, the judge stated that, based on the argument presented on January 4, 2016, "the plaintiffs are responsible for putting their most recent trial counsel in a position where they felt compelled to withdraw." "[B]ecause ... Cranmore is a plaintiff in this case in his capacity as the trustee of a real estate trust, ... [t]he trust needs to be represented by a lawyer."
Discussion. Rule 41(b) of the Massachusetts Rules of Civil Procedure provides, in pertinent part, that "(2) ... [o]n motion of the defendant, with notice, the court may, in its discretion, dismiss any action for failure of the plaintiff to prosecute or to comply with these rules or any order of court.... (3) ... [U]nless the court ... otherwise specifies, [the involuntary] dismissal ... operates as an adjudication upon the merits." However, "a judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, see Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008) (citation omitted), such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
"Involuntary dismissal is a drastic sanction which should be utilized only in extreme situations. As a minimal requirement, there must be convincing evidence of unreasonable conduct or delay. A judge should also give sufficient consideration to the prejudice that the movant would incur if the motion were denied, and whether there are more suitable, alternative penalties. Concern for the avoidance of a congested calendar must not come at the expense of justice. The law strongly favors a trial on the merits of a claim." Monahan v. Washburn, 400 Mass. 126, 128–129 (1987).
Given the procedural history of this case, the plaintiffs' request for a sixty- to ninety-day extension to obtain replacement counsel did not constitute an unreasonable delay; nor would the defendants have been unduly prejudiced by a continuance. "One indication of actual prejudice is the extent to which the moving party has been pressing for trial." Massachusetts Broken Stone Co. v. Planning Bd. of Weston, 45 Mass. App. Ct. 738, 741 (1998). Here, most of the continuances allowed for the final pretrial conference and trial were those made on the defendants' motions; the plaintiffs argued in opposition to at least two of the motions for a continuance that they were prejudiced by the delays because damage to the property was accruing due to the defendants' continued work on the project. There is no indication in this record that the defendants ever pressed for trial prior to January 11, 2016. As a result, the defendants' "failure to advance the action, especially in the absence of any affidavit supporting the existence of actual prejudice, [supports] ... [a] ... finding of no prejudice." Ibid.
The argument of defendant CWC Builders, Inc., that because Cranmore's motion was not in writing the trial court's decision should be affirmed, is without merit. Rule 7(b)(1) of the Massachusetts Rules of Civil Procedure explicitly states that a motion shall be made in writing "unless made during a hearing or trial." Mass.R.Civ.P. 7(b)(1), 365 Mass. 748 (1974).
There is no indication in the oppositions that Cranmore and Savanna were not ready for trial. No delays in the proceeding were occasioned by a lack of diligence by Cranmore or Savanna, or on account of conduct by their attorney, or over the opposition of the defendants. In addition, mediation was attempted twice, albeit unsuccessfully.
In addition, the fact that the defendants have a right to have the claims brought against them adjudicated by a jury is insufficient to establish prejudice given the procedural posture of this case. The defendants' reliance on Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986), is misplaced. Specifically, in Bucchiere, there were nearly two years of inaction on the part of the plaintiff, prompting the judge to dismiss the case for lack of prosecution. Id. at 640. The facts in this case are quite different, as Cranmore was an active participant throughout this litigation, and any gaps in prosecuting this matter were due largely to extensions sought by the defendants, not inaction on the part of the plaintiffs. See Massachusetts Broken Stone Co., supra.
The judge found the plaintiffs responsible for putting their lawyers in the position where they felt compelled to withdraw from the case, concluding that this constituted unreasonable conduct by the plaintiffs. However, neither the judge nor the defendants cited sufficient evidence of unreasonable conduct. See Mass.R.Prof.C. 1.16(b), as appearing in 471 Mass. 1395 (2015), which states that unreasonable conduct includes "(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; [or] (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled." Moreover, Cranmore submitted an affidavit opposing Attorney Glickman's withdrawal, claiming that there was "no irreconcilable breakdown in the attorney client relationship. The part[ie]s' minor disagreement is over ‘three different retainer agreement[s]’ for the July 31, 2013, rehiring. Two of the agreement[s] in question [are] false and [were] not a part of the agreement." No evidence was presented to the contrary.
At the hearing on counsel's motion to withdraw, the judge heard plaintiffs' counsel at sidebar but made only a general finding that "the differences between counsel and client made it impossible for counsel to continue to zealously represent [p]laintiffs.... Plaintiffs are responsible for putting their lawyers in a position where [counsel] felt compelled to withdraw from the case."
In addition, the plaintiffs' inability to secure replacement counsel in the time between the January 4, 2016, order allowing Attorney Glickman's motion to withdraw and the January 11, 2016, trial date does not constitute an unreasonable delay in retaining new counsel. Case law implies that finding successor counsel in multi-year cases is a difficult endeavor. See, e.g., V.H. v. J.P.H., where the court denied defense counsel's motion to withdraw because the case had been "pending for three ... years ... [and] [i]t would be extremely difficult for another attorney (assuming one could be retained) to prepare for the last part of discovery and for trial in a relatively short period of time." V.H. v. J.P.H., 62 Mass. App. Ct. 910, 910 (2004). See also Kiley, petitioner, 459 Mass. 645, 646–647 (2011), where the court upheld a motion to withdraw, due to irreconcilable differences, with the stipulation that the attorney's law firm must provide replacement counsel. The court reasoned that the "judge did not abuse his discretion in refusing to release the Kiley firm from the representation where the case was already three years old, discovery was delayed, and no successor counsel could be found." Id. at 652. The facts of this case prompt the same conclusion.
We agree with the judge's finding that "[i]f trial were continued for several months the [d]efendants would be forced to bear substantial unnecessary expense to have their lawyers and witnesses get ready for trial a second time." However, the expenses the defendants would incur due to a sixty- to ninety-day continuance compared to those incurred by both the plaintiffs and the defendants over the course of this nearly six-year case are not great enough to constitute prejudice. Absent prejudice and unreasonable conduct or delay, the law strongly favors adjudication on the merits. Monahan, 400 Mass. at 128–129.
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Next, the judge noted that the defense "had spent substantial time preparing to go to trial, at substantial expense to the [d]efendants." Over the course of this case, the defendants had not been strongly pressing for trial. As noted, supra, they filed numerous motions to extend the tracking deadline or for a continuance, and the plaintiffs opposed two of the motions, citing ongoing damage and the unavailability of defendants' counsel. Both of those motions were allowed over the plaintiffs' opposition. Moreover, "[t]rial on the merits of a plaintiff's claim is strongly favored, and the involuntary dismissal of such a claim should be reserved for those situations where a severe sanction is necessary." Massachusetts Broken Stone Co., 45 Mass. App. Ct. at 740. Taken together, we are persuaded that the facts of this case do not warrant the severe sanction of dismissal with prejudice.
Judgment reversed.