Opinion
No. 11–P–541.
2012-06-25
TOWN OF HINGHAM v. Thomas PATCH (and a companion case ).
By the Court (BERRY, KAFKER & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Thomas Patch appeals from the November 13, 2009, and March 18, 2010, Superior Court judgments related to the 2005 demolition of a barn in his grandmother's estate by the town of Hingham (the town). We affirm.
1. Background. On August 31, 2004, the building commissioner of the town inspected an abandoned barn at 9 Ship Street in Hingham, concluded that it was unsafe and presented a danger to life or limb, and directed Patch, who lived on the property, to take remedial action within thirty days. Patch failed to do so.
On January 11, 2005, the town filed an action for a declaratory judgment regarding its planned demolition of the barn. In his answer and counterclaim, Patch asserted, in part, that he was not the owner, lessee, or mortgagee of the barn. The town demolished the barn in or about August of 2005. On September 17, 2009, the town filed a motion to dismiss and/or for summary judgment alleging that it had demolished the barn and that therefore its declaratory action and Patch's counterclaim were moot. On February 15, 2005, Patch filed a separate action against the building commissioner challenging the validity of the 2004 order to take remedial action on the barn, but again denied that he was the owner, lessee, or mortgagee in possession of the property. G.L. c. 139, § 2. A hearing on both matters was held on November 9, 2009. On the same date, the judge dismissed the town's declaratory action pursuant to Mass.R.Civ.P. 41(a)(2), 365 Mass. 803 (1974), and Patch's counterclaim pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974). On March 18, 2010, the same judge ordered that a judgment of dismissal enter on Patch's c. 139, § 2, action, based on his failure to comply with an order to submit evidence that he had a legally cognizable interest in the demolished barn entitling him to assert a claim under c. 139, § 2. Patch's two appeals were consolidated in this court.
2. Discussion. On appeal, Patch first claims that the judge erred in denying his motion to enlarge the time to answer the town's complaint. This argument fails not only because such a decision rests in the judge's discretion, but also because both the complaint and the counterclaim were addressed on the merits. See Mass.R.Civ.P. 6(b), 365 Mass. 747 (1974); Croteau v. Swansea Lounge, Inc., 402 Mass. 419, 422–423 (1988). Similarly, the judge did not abuse his discretion in not accepting for filing Patch's proposed amended counterclaims on grounds that they were “grossly untimely.”
See Doherty v. Admiral's Flagship Condominium Trust, 80 Mass.App.Ct. 104, 112 (2011).
Patch's original counterclaims were filed on July 28, 2005. He filed his motion to amend the counterclaims more than four years later: after the town filed its September 17, 2009, motion to dismiss and/or for summary judgment; after he filed his October 1, 2009, motion for additional time to file an opposition, which was allowed; and after he filed his opposition on November 3, 2009. In fact, Patch filed his motion to amend the counterclaims on the day of the hearing on the town's motion to dismiss.
Patch also challenges the judge's dismissal of the town's complaint on the ground that it was rendered moot by the demolition of the barn. Rule 41(a)(2) provides, in part, that, except as provided in rule 41(a)(1), a dismissal of a plaintiff's action at his request may be ordered by the court. Where the town asserted that it no longer was seeking a declaratory judgment because the barn already was demolished, it had no stake in the outcome and the judge properly determined that the issue was moot.
A case is moot when the parties no longer have a stake in the determination of the issues presented, First Natl. Bank of Boston v. Haufler, 377 Mass. 209, 211 (1979), when the dispute has become hypothetical, or when it does not involve an actual controversy, Sullivan v. Secretary of the Commonwealth, 233 Mass. 543, 546 (1919). See Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 298 (1975).
See Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703 (1976).
Patch's claim that he could be subject to fines for failure to demolish the barn is highly speculative because he was not the owner of the property and because he presented no evidence that the town levied fines against him. See Building Commr. of Cambridge v. Building Code Appeals Bd., 34 Mass.App.Ct. 696, 699 (1993).
Patch's argument that it was error to allow the rule 41(a)(2) dismissal motion in light of his objection is also without merit. Under rule 41(a)(2), “[i]f a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court.” Here, Patch's counterclaims were adjudicated independently and disposed of on different procedural and substantive grounds than the town's claim. Treating the town's motion as one for summary judgment, the judge ruled that Patch put forth no record evidence or information to present a genuine issue of material fact. Patch fails to point to any evidence to the contrary.
Patch's challenge to the judge's allowance of the town's summary judgment motion fails because he had no standing to assert counterclaims where he consistently asserted that he was not the owner, lessee, or mortgagee in possession of the barn.
“We must take note of the absence of standing, whenever it appears.” Statewide Towing Assn. v. Lowell, 68 Mass.App.Ct. 791, 794 (2007).
He asserted in the counterclaims that he was not the owner, lessee, or mortgagee of the barn. At the hearing, Patch stated that the barn was part of his grandmother's estate; that when he had been the executor of the estate, he chose to retain the barn in the grandmother's estate to avoid its distribution as part of his own marital property in his divorce action; that he resigned as executor pursuant to an order temporarily suspending him from the practice of law; and that the estate had no executor since 2004.
Finally, as to Patch's c. 139, § 2, action following the hearing on November 9, 2009, the judge ordered dismissal unless Patch presented evidence of a legally cognizable interest to assert his claim.
Patch failed to do so. Thus, the dismissal was proper for any number of reasons including Patch's failure to comply with this order, his failure to prosecute the case between 2005 and 2009, and his lack of standing.
.General Laws c. 143, § 10, as appearing in St.1949, c. 541, § 4, permits an aggrieved “owner, lessee or mortgagee in possession” to pursue an appeal pursuant to c. 139, § 2.
November 13, 2009, judgment of dismissal affirmed.
March 18, 2010, judgment of dismissal affirmed.