Opinion
No. 12–P–763.
2013-05-21
Sarah S. KIM v. TRUSTEES OF THE 74 SPRINGVALE AVENUE CONDOMINIUM TRUST.
By the Court (GREEN, RUBIN & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Sarah S. Kim, who is also a member of the bar, appeals from a judgment ordered by a judge of the Land Court that dismissed the “verified” petition she filed in 2011, to expunge an execution issued in 2003. This petition undisputedly relates to the defendants' foreclosure, in 2001, of Kim's interest in a condominium unit at the 74 Springvale Avenue Condominiums for her failure to pay common area charges, as well as the litigation and the judgments and executions which thereafter ensued.
These matters have been the subject of considerable litigation in the District Court, Superior Court, Land Court, and the United States Bankruptcy Court. Relevant here, in 2002, Kim's attempt to have the 2001 foreclosure set aside was dismissed by a judge of the Land Court that was followed, in 2003, by a judgment for attorney's fees and costs ordered on behalf of the defendant condominium association pursuant to the provisions of G.L. c. 231, § 6F, in the amount of approximately $4,000, and an execution issued. The plaintiff failed to perfect any appeal from many of these judgments, including the original foreclosure and the judgment for attorney's fees.
Later, in 2007, given the multiple attempts to reopen or collaterally attack the foreclosure judgment, a judge of the Superior Court issued a permanent injunction, at the request of the defendants, enjoining Kim from filing any further actions pertaining to her condominium, the condominium association, and the foreclosure without leave of the presiding justice.
Such an order is enforceable. See Camoscio v. Hodder, 409 Mass. 1001, 1001 (1991) ( “[A]fter a hearing and a determination that ... Camoscio had filed a multiplicity of actions of an insubstantial nature, a judge of the Superior Court entered an order requiring the approval of a judge ... before the court clerk could properly accept any paper filed in any action on behalf of Camoscio. A panel of the Appeals Court affirmed that order”). Indeed, Kim received clear warning in 2006, in connection with this subject matter: “There are consequences to embroiling the courts with their limited resources, not to mention the adverse parties, in years of futile, misguided litigation. It is even less tolerable when the offender is a member of the bar.” Trustees of 74 Springvale Ave. Condominium Trust v. Kim, 66 Mass.App.Ct. 1114 (2006) (affirming order of single justice denying Kim's motion for late appeal and awarding appellate attorney's fees and expenses).
The permanent injunction provided:
“After hearing, the Court hereby permanently ENJOINS and RESTRAINS Defendant, Sarah S. Kim (a/k/a Song–Hee Kim), (‘Kim’), and her agents, servants, employees, and attorneys from filing or causing to be filed any additional lawsuits and/or claims relating to Chelsea District Court Docket No. 9914 CV 1114 or any appeal thereof; the 1998 flooding of the garden units at the 74 Springvale Avenue Condominium; the assessment of condominium common fees to Kim's former Unit at the 74 Springvale Avenue Condominium relating to repairs made by the Association as a result of the 1998 flood at the 74 Springvale Avenue Condominium; and the October 3, 2001 foreclosure sale involving Kim's former Unit at the 74 Springvale Avenue Condominium; without first obtaining this Court's authorization for such filing.”
See also Kim v. Lever, 62 Mass.App.Ct. 1115 (2004) (in addition to affirming the dismissal of a Superior Court action involving the same parties, on the ground of res judicata or claim preclusion, double costs and fees were assessed to Kim for having filed a frivolous appeal). Moreover, in granting the injunction in 2007, the Superior Court judge observed, should Kim file further actions in violation of the injunction, such actions would not only be contumacious but may well also constitute a violation of her professional responsibilities. See Supreme Judicial Court Rule 3.07: Rules of Professional Conduct 3.1, 3.4(c), and 8.4(d), as appearing in 426 Mass. 1303 (1998). Consequently, we direct the Clerk of the Appeals Court to refer a copy of our decision to the Office of Bar Counsel of the Board of Bar Overseers, pursuant to Supreme Judicial Court Rule 3.09, Code of Judicial Conduct Canon 3.D(2), as appearing in 440 Mass. 1301 (2003)..
Nevertheless, Kim filed the petition at issue here in September, 2011, by which she again attempted to collaterally attack one or more of the executions relevant to this matter. Contrary to the injunction issued by the Superior Court judge, however, Kim did not obtain leave from the Superior Court before filing this action. At a hearing in November, 2011, the Land Court judge specifically ordered Kim to obtain such leave, and to make a report by December 1, 2011. Rather than complying with that order, Kim instead filed a bankruptcy petition in the United States Bankruptcy Court that was dismissed on January 6, 2012. Following that dismissal, a Land Court judge dismissed this action on January 18, 2012.
This was followed by Kim's motion for reconsideration, which was denied. Kim again failed to obtain leave from the Superior Court to take this step.
Kim's argument addresses neither the propriety of the order of the Land Court judge that required compliance with the Superior Court injunction nor reasons why she did not obtain the judicial approval required thereby.
Moreover, the record appendix is inadequate for the issues presented by this appeal and, thus, in violation of Mass.R.A.P. 18, as amended, 428 Mass. 1601 (1998). While these failings alone are grounds for dismissal, we affirm, nonetheless, substantially for the reasons stated by the Land Court judge, the authority of the judge to dismiss for failure to comply with an order, see Mass.R.Civ.P. 41(b)(2), 365 Mass. 803 (1974), and since no abuse of discretion has been shown.
It appears from this record that there was no appeal from the permanent injunction ordered by the Superior Court judge.
The defendant is entitled to attorney's fees and double costs on appeal. The defendant shall have fourteen days from the date of the rescript to file an application for appellate attorney's fees and costs. The plaintiff may file an opposition thereto within fourteen days of service of the defendant's application. See Fabre v. Walton, 441 Mass. 9, 10–11 (2004). Judgment affirmed.