Opinion
No. 15–P–1179.
05-31-2016
HALLMARK HEALTH SYSTEM, INC. v. CITY OF MALDEN & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from an order of a single justice of this court, which “remanded” the matter to the Superior Court for reconsideration of an order of the Superior Court denying the motion of the city to compel the plaintiff to comply with an order of the city's building inspector, and “for scheduling of a trial by jury pursuant to the statutory requirements.” We conclude that the single justice incorrectly concluded that the motion judge erred in his denial of the city's motion to compel compliance.
We note that no remand was warranted, as a petition for interlocutory relief pursuant to G.L. c. 231, § 118, like the one filed by the defendants in the present case, does not divest the trial court of jurisdiction over the matter.
In their respective briefs, neither party raised or addressed the question of jurisdiction. At oral argument, the panel requested supplemental briefs on the question, and both parties timely submitted supplemental briefs, which the panel has reviewed and considered. Though the order of the single justice technically required only that the motion judge “reconsider” his prior order denying the city's motion, he unequivocally expressed his view that the motion judge erred in his denial of the motion. As such, we consider the order of the single justice to be the functional equivalent of a reversal of the order of the motion judge and, accordingly, an order “granting a petition for relief from a such an order [refusing a preliminary injunction].” See G.L. c. 231, § 118, second par.
Our review of the applicable statutes, and of the briefs of the parties addressed to the merits of the appeal, does not persuade us that the applicable statutes require allowance of the motion to compel compliance prior to judicial review of the propriety of its issuance (as the single justice appears to have believed). Instead, the plaintiff is entitled to seek review of the building inspector's enforcement order in an action in the Superior Court (as the plaintiff sought in the present case). See G.L. c. 139, § 2. The pendency of any such action does not impair or derogate from the right of the city to take appropriate action to secure the property or even to raze it, if public safety requires. See G.L. c. 143, §§ 9, 10. As the single justice correctly recognized, the trial of the plaintiff's complaint should occur on an expedited basis.
The order of the single justice is vacated.
So ordered.