Opinion
18-P-928
10-04-2019
BEARBONES, INC., & another v. B & G RESTAURANT SUPPLY, INC., & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case arises out of a broken water pipe at a bakery in Pittsfield and the bakery's subsequent disagreement with its insurer regarding the amount of the loss. The plaintiffs, Bearbones, Inc., and Amaral Enterprises LLC, are the legal owners of the bakery and the condominium unit out of which the bakery operated, respectively. The narrow issue currently before us is whether the plaintiffs have a cause of action under G. L. c. 233, § 4, for damages against B & G Restaurant Supply, Inc., and two of its employees, Blake Purry and Jim Clary, for the employees' failure to testify at an insurance reference proceeding. Because we conclude that Purry and Clary were not compelled to appear and to testify, which is a prerequisite for liability under G. L. c. 233, § 4, we modify the judgment and, as so modified, affirm the summary judgment in the defendants' favor.
We note that the plaintiffs have filed two other lawsuits arising out of the broken water pipe, one in a Federal court and another in a different Massachusetts State court, and that they also raise additional challenges in this appeal with respect to the constitutionality of insurance reference proceedings, which are provided for by statute. However, "we decline to consider such a challenge [to the constitutionality of a statute] where the Attorney General was never notified and given the opportunity to be heard." R.F. v. S.D., 55 Mass. App. Ct. 708, 714 (2002). See Mass. R. Civ. P. 24 (d), 365 Mass 769 (1974) ("When the constitutionality of an act of the legislature ... is drawn in question in any action to which the Commonwealth or an officer, agency, or employee thereof is not a party, the party asserting the unconstitutionality of the act ... shall notify the attorney general within sufficient time to afford him an opportunity to intervene"). No proper notice was provided in this State court proceeding.
The plaintiffs also filed a motion to alter or amend the judgment, which was denied.
1. Background. We set out the facts in the summary judgment record viewed in the light most favorable to the plaintiffs. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991) ("standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law"). When the plaintiffs and their insurer were unable to agree on the amount of the loss resulting from a broken water pipe, they proceeded to reference. See G. L. c. 175, § 99 (if parties fail to agree as to amount of loss, "it is mutually agreed that the amount of such loss shall be referred to three disinterested [people] ... and the award in writing by a majority of the referees shall be conclusive and final upon the parties as to the amount of loss or damage"). A significant area of dispute appears to have been the value of certain damaged kitchen equipment. On this issue, the plaintiffs wanted Purry and Clary to testify regarding an estimate that B & G Restaurant Supply, Inc., provided to the plaintiffs for removal and replacement of the damaged equipment.
On April 3, 2015, the plaintiffs summoned Purry to appear and to testify at the insurance reference proceeding. When it became apparent that Purry did not plan to do so, the plaintiffs submitted an emergency motion for a capias in the Superior Court in Suffolk County. A judge of that court (Suffolk judge) denied the plaintiffs' motion because the plaintiffs did not follow the proper procedure, noting that the motion needed to be submitted by the referees on the insurance reference panel and suggesting that the plaintiffs follow that procedure. On April 25, 2015, the referees asked plaintiffs' counsel if he knew of any authority by which they could enforce the summons. Two days later, plaintiffs' counsel responded that he knew of no such authority, despite having been informed of the proper procedure from the Suffolk judge earlier in the month. The plaintiffs subsequently summoned Clary to appear and to testify; he, too, was either unable or unwilling. The plaintiffs thus filed this action in which they sought a preliminary injunction requiring Purry and Clary to appear at the insurance reference proceeding, as well as damages pursuant to G. L. c. 233, § 4. A judge of the Superior Court in Berkshire County (Berkshire judge) denied the plaintiffs' request for a preliminary injunction for the same reason that the Suffolk judge denied the plaintiffs' emergency motion for a capias. The Berkshire judge also granted the defendants' motion for summary judgment, which is the matter currently before us.
We note that plaintiffs' counsel appears to have sent the order denying the emergency motion for a capias to the referees and that the referees thus should have known that they could seek a capias from the Superior Court. Regardless, the plaintiffs did not specifically ask the referees to do so.
The plaintiffs also asserted a claim under art. 11 of the Declaration of Rights of the Massachusetts Constitution, arguing that insurance reference proceedings are unconstitutional, a claim that we do not address. See note 4, supra. The plaintiffs also sought a declaration that they are entitled to a judicial remedy (and damages) for Purry's and Clary's failure to appear.
2. Discussion. The plaintiffs seek damages under G. L. c. 233, § 4, which provides, "If a person who has been duly summoned and required to attend as a witness ... fails, without a sufficient excuse, to attend, he shall be liable to the aggrieved party in tort for all damages caused by such failure." The plaintiffs argue that Purry and Clary were duly summoned to attend as witnesses and that they are therefore liable for all damages caused by their failure to testify. The plaintiffs' interpretation of G. L. c. 233, § 4, however, omits two requirements for liability: (1) that Purry and Clary were required to attend as witnesses, and (2) that they each lacked a sufficient excuse for failing to attend as a witness.
A witness who receives a summons to appear and to testify before an insurance reference proceeding is not always required to do so, as a judge has the "discretion [to] compel the attendance of such witness[ ] and the giving of testimony." G. L. c. 233, § 10. See County Comm'rs of Middlesex County v. Sheriff of Middlesex County, 361 Mass. 89, 90 (1972) (judge has discretion under G. L. c. 233, § 10, to compel attendance of witness and giving of testimony); Barrus v. Phaneuf, 166 Mass. 123, 124 (1896) (issuing of warrant to bring in witness who fails to appear pursuant to summons is matter of discretion). In exercising this discretion, a judge considers whether the witness has a sufficient excuse for failing to appear and to testify. See Barrus, supra ("court usually must be satisfied ... that the failure to attend is without reasonable excuse"). It is thus clear to us that liability cannot lie under G. L. c. 233, § 4, until a judge has performed the critical gatekeeping function of deciding to compel the witness to appear and to testify. Cf. Commonwealth v. Rollins, 441 Mass. 114, 121 n.3 (2004) ("The fact that the defendant summonsed [his friend to testify] carries little weight when [the defendant] failed to move for a finding of contempt or for a warrant to compel [the friend's] appearance when she did not appear to testify").
The plaintiffs' reading of the statute would allow someone to seek damages from a witness for failing to testify even if a judge has concluded that the witness has no obligation to do so. We interpret the statute to avoid this impractical result. See Bellalta v. Zoning Bd. of Appeals of Brookline, 481 Mass. 372, 378 (2019) (statutory interpretation must avoid absurd results). We further note that the sole case relied on by the plaintiffs, Robinson v. Trull, 4 Cush. 249 (1849), is not to the contrary. In Robinson, the question was whether a plaintiff could maintain an action against a witness for failing to testify even though there was no evidence that the witness's fees for travel and attendance had been paid. Id. The Supreme Judicial Court concluded only that it was not sufficient to prove that the witness had waived his right to fees. Id.
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While the plaintiffs did seek orders from two different Superior Court judges compelling Purry and Clary to appear and to testify, the plaintiffs did not follow the proper procedure. As noted by both Superior Court judges, an "application ... to compel the attendance of witnesses and the giving of testimony [before the insurance reference proceeding]" needed to be submitted by the referees, not the plaintiffs. G. L. c. 233, § 10. See Bay State Gas Co. v. Local No. 273, Util. Workers Union of Am., 415 Mass. 72, 76 (1993) ("the statute plainly does not authorize either party to apply for judicial enforcement of a summons"). The plaintiffs could have requested that the referees make such an application, but the plaintiffs declined to do so. Where it is beyond dispute that Purry and Clary were not compelled to appear and to testify, summary judgment was properly granted in the defendants' favor.
3. Fees. The defendants request appellate attorney's fees on the basis that the plaintiffs' appeal is frivolous. We agree with the defendants, noting in particular that two Superior Court judges informed the plaintiffs of the proper procedure for obtaining an order compelling Purry and Clary to appear and to testify, and that instead of following that procedure, the plaintiffs chose to pursue their frivolous claim under G. L. c. 233, § 4. In accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the defendants may file an application for appellate attorney's fees within fourteen days of the date of this decision. The plaintiffs may file a written opposition within fourteen days thereafter. Id.
4. Declaratory judgment. This case was appropriate for summary judgment. However, this "being an action for declaratory relief, ... the judgment should have declared the rights of the parties." McDermott v. Watertown Hous. Auth., 25 Mass. App. Ct. 995, 996 (1988), citing Boston v. Massachusetts Bay Transp. Auth., 373 Mass. 819, 829 (1977). See Snell v. Department of Correction, 458 Mass. 1021, 1022 (2011) ; Property Acquisition Group, LLC v. Ivester, 95 Mass. App. Ct. 170, 180 n.16 (2019). The judgment is to be modified to declare that the plaintiffs are not entitled to a judicial remedy for Purry's and Clary's failure to appear and to testify, nor are the plaintiffs entitled to damages for those failures. As so modified, the judgment is affirmed. We also affirm the order denying the plaintiffs' motion to alter or amend the judgment.
So ordered.
As so modified, judgment affirmed.