The city of Boston (city) petitioned the Housing Court for appointment of a receiver, pursuant to G. L. c. 111, § 1271, to bring a vacant property owned by Jadwiga Rochalska into compliance with State sanitary and building codes. After the receiver had been appointed, his role was limited to “tak[ing] all necessary steps to enable the Boston Fire Department to enter the premises in the event of a fire.” Having completed that task, the receiver was discharged, and following a hearing to establish the reasonableness of his claimed expenses, he was awarded $124,353.49.
The intervener, Marian Sklodowski, filed this appeal
As also set forth in the complaint, Rochalska had not applied for permits to remedy these conditions after the condemnation of the property entered, and there was a risk that the building would be destroyed beyond repair absent the appointment of a receiver who would be obligated to secure the property, repair it, and bring it into conformity with applicable sanitary and building codes. Following several unsuccessful attempts to personally serve Rochalska with the petition, the city’s motion for service by publication was allowed, and on March 19, 2002, Jonathan Kaye was appointed receiver.
Some two weeks later, Rochalska, through an attorney, filed a motion supported by affidavits to stay the receivership, claiming that she was never served with notice of the proceedings and was
Two motions to dismiss the petition for appointment of a receiver were thereafter filed on Rochalska’s behalf by another attorney (not apparently associated with the attorney who filed the motion to stay). The first sought to dismiss the petition without prejudice on the basis that Rochalska “has conveyed the property to Mari[a]n Sklodowski, an experienced contractor . . . [who] is now prepared to renovate the property and bring it into compliance with the applicable codes.”
In December, 2002, Sklodowski, as intervener, filed a motion seeking to “vacate and/or dissolve” the receivership, contending that the property was unoccupied and thus not subject to the appointment of a receiver under G. L. c. Ill, § 1271. Two weeks later, the motion to vacate the receivership was denied but the motion to dissolve it was allowed, and Sklodowski was ordered “hereafter responsible for the rehabilitation of the property in question and bringing it into compliance, under continued court supervision, and subject to the right of [the city] to move for the appointment of a receiver for the property should the rehabilitation work fail to progress.”
A hearing was conducted before a judge of the Housing Court to determine the amount of reasonable costs and expenses incurred by the receiver for work undertaken from the date of his appointment, March 19, 2002, to December 5, 2002. In his order dated September 30, 2003, the judge determined that $124,353.49 in costs and expenses had reasonably been incurred and that, $50,000 having been paid, the balance due to the receiver was $74,353.49, plus $7,597.19 in interest. The judge denied without
2. Summary of findings. “We give a summary account of this protracted case embodied in a very extensive record. In doing so we apply the rule that findings of fact made by the judge below are to be accepted by us unless clearly erroneous, Mass. R. Civ. P. 52 (a), . . . and we also take the view that more general appraisals by the judge ... are entitled to respect although they are not binding on us.” Perez v. Boston Hous. Authy.,
The property, which consists of two three-story buildings each containing three dwelling units, was vacant when the petition to appoint a receiver was filed. Rochalska was the owner of the property and had allowed it to become vacant when she received numerous notices of health and building code violations at the property; she attended hearings held by the city’s inspectional serviсes department that, in August, 2000, resulted in the issuance of an order of condemnation and an order to vacate the building. The property was in a dilapidated condition with rear porches in danger of imminent collapse. As a result of homeless people frequenting the building, several fires occurred there; the building was without essential utilities or smoke alarms, and debris and furniture blocked ingress and egress, rendering the property impassable. The Boston fire department had declared that the building was unsafe and dangerous, posting a red “X”
Kaye, as receiver with authority to undertake the repairs necessary “to enable the Boston Fire Department to enter the premises in the event of a fire,” cleared the debris, discarded furniture that blocked ingress and egress to the property, and reconstructed the rear porches.
3. Discussion, a. Service of process. The claim that Rochalska was not properly served with process and that the judge thus erred in denying Rochalska’s motion to dismiss pursuant to Mass.R.Civ.R 12(b)(5) was waived.
Passing the question (not raised by the parties) of the intervener’s standing to appeal from the denial of Rochalska’s motion, cf. Box Pond Assn. v. Energy Facilities Siting Bd.,
b. Scope of G. L. c. 111, § 1271. We disagree with Sklodowski’s argument that his motion to vacate the receivership was wrongfully denied
“We must ascertain the intent of a statute from all of its parts, from the subject matter to which it relates, and we must construe it so as to render the legislation effective, consonant with reason and common sense.” Bay Colony Mktg. Co. v. Fruit Salad, Inc.,
In its opening paragraph, § 1271 provides that when “affected occupants” or a “public agency” (such as the city’s inspectional services department) files a petition to enforce provisions of the sanitary code, the court has the discretion to choose among three options: the court may (1) issue an injunction; (2) order that affected tenants make use and occupancy payments to the clerk of the court; or (3) appoint a receiver. See Brittle v. Boston,
Section 1271 goes on to describe circumstances where the court’s discretion is limited, providing that the court “shall ap
Section 1271 may thus be seen as requiring the appointment of a receiver to undertake remedial action when there are ongoing sanitary code violations in an occupied building “and the court determines that such appointment is in the best interest of occupants residing in the property,” but making the appointment discretionary when the building is unoccupied or, if occupied, when the best interests of occupants do not require appointment.
A review of the broader context in which the statute was enacted supports this reading of § 1271 as applicable to vacant as well as to occupied buildings. See Boston Police Patrolmen’s Assn. v. Police Dept. of Boston,
“General Laws c. 111, §§ 127A-127N, reflect a comprehensive legislative attempt to effectuate compliance with minimum health and safety standards for residential premises.” Negron v. Gordon,
Section 127A of G. L. c. Ill, as appеaring in St. 1983, c. 84, § 1, provides for the adoption of public health regulations, to be known as the “state sanitary code,” which
“shall deal with matters affecting the health and well-being of the public . . . [and] may provide for the demolition, removal, repair or cleaning by local boards of health and, in the cit[y] of Boston, ... by the commissioner of housing inspection, of any structure which so fails to comply with the standards of fitness for human habitation ... as to endanger or materially impair the health or well-being of the public” (emphasis added).
Nothing in this language limits the scope of § 127A to occupied buildings.
Other provisions in G. L. c. Ill further demonstrate a legislative intent to protect the health and safety of both the occupants of a building and members of the general public, and to do so through the apрointment of a receiver when necessary. Section 127B provides that upon determining that a building “is or may become a nuisance ... or may be a cause of sickness or home accident to the occupants or to the public” (emphasis added), a board of health may issue an order to vacate a building or to bring it into compliance with the sanitary code. In the event of failure to comply with the board of health’s requirements, the court may appoint a receiver to enforce the board’s orders.
We note further that nothing in the General Laws defines a
We conclude that G. L. c. Ill, § 1271, is applicable both to vacant and occupied buildings.
Here, the city complied with the requirements of G. L. c. Ill, § 1271, when, after some sixteen months of inaction by Rochalska, it sought the appointment of a receiver to remedy the sanitary code violations that remained after the property had been condemned and any occupants ordered to vacate the property.
c. Fraud on the court. Sklodowski argues that, had the judge amended his findings as requested, those additional findings would have established that Kaye as receiver committed fraud upon the court by purporting to make payments to Daniel Buckley of Hearthstone Development Group, LLC ($47,000 on April 13, 2002, and $44,525 on August 12, 2002), that in fact were returned to Kaye (by two checks to Kaye on May 3, 2002, and August 19, 2002), and by misrepresenting the amounts billed and payments made in connection with the removal and repair of the rear porches.
A fraud on the court results from an “unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.” Wojcicki v. Caragher,
The judge, in denying Sklodowski’s motion to amend the
The judge did not abuse his discretion in failing to make additional findings. See West Springfield v. Olympic Lounge, Inc.,
d. Sufficiency of the evidence. Sklodowski contends that the evidence does not support an award of $9,694.68 for lumber and $12,575.00 for labor to reconstruct the rear porches; $20,000 for supervisory services provided by Buckley; and $9,500.00 for the “Receiver’s Fee.”
As previously stated, we accept as true the judge’s findings of fact unless they are clearly erroneous. See Henry v. Morris,
(i) Rear porches. There was sufficient evidence to support the award of $9,694.68 for lumber and $12,575.00 for the demolition and reconstruction of the rear porches. The evidence includes an invoice from Wachusett Lumber for $9,694.68, and check stubs reflecting payments made to Charles D. Joseph, totaling $12,575. Permit applications to remove the rear porches
(ii) Receiver’s fee. The judge’s determination that $9,500 was a reasonable fee for the receiver’s services finds support in Kaye’s testimony that he had received a fee of $7,500 for another receivership that was “much less complex and less time consuming,” and that, because the project had tied up his working capital, it prevented him from taking on other work. The award was not clearly erroneous. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass, at 510 (“[W]e do not review questions of fact found by the judge, where such findings are supported on any reasonable view of the evidence, including all rational inferences of which it was susceptible. So long as the judge’s account is plausible in light of the entire record, an appellate court should decline to reverse it” [citations omitted]).
(iii) Quantum meruit. The judge observed that “[t]he most troublesome part of the Receiver’s claim involves Daniel Buckley of Hearthstone Development. . . . [T]he relationship between the Receiver and Daniel Buckley was not an arms length relationship since Buckley had worked for the Receiver as a job superintendent on a number of occasions.”
No view of the evidence supports the amount of this award. Even crediting Buckley’s testimony that he provided supervisory
4. Conclusion. We affirm the orders denying (1) Rochalska’s motion to dismiss the petition; (2) the intervener’s motion tо vacate the appointment of a receiver; and (3) the intervener’s motion to amend findings of fact and rulings of law. As to the order and judgment awarding the receiver $124,353.49 for his reasonable expenses, we vacate the award of $20,000 for services provided to the receiver by Daniel Buckley of Hearthstone Development Group, LLC, and remand for such further proceedings as may be appropriate to determine a reasonable amount of reimbursement; we affirm the balance of the award.
So ordered.
Notes
Rochalska apparently conveyed an interest in the property to Sklodowski during the course of these proceedings. In allowing Sklodowski’s motion tо intervene, the judge determined, without ruling on his specific ownership status, that Sklodowski held some interest in the property. See notes 6, 9, and 10, infra. Although no suggestion of death appears in the record on appeal, see Mass.R.A.P. 30(a), as amended,
Sklodowski’s additional claims require no extended discussion. He asserts (in addition to his claim of fraud on the court, discussed in part 3.c, infra), that during trial the receiver made “meritless misrepresentations” to the court regarding expenses incurred in repairing the property, but makes no argument (and cites no authority) tying the assertions to any claim of legal error. See Mass.R.A.P. 16(a)(4), as amended,
Sklodowski’s claim that no expenses should have been awarded because the
The Housing Court judge found that condemnation occurred “ [approximately eight (8) or nine (9) years ago.” The record refleсts that the building was condemned, and a vacate order issued, in August, 2000.
The initial order of appointment provided, among other things, that the receiver “shall have all the rights, duties, obligations and protections of a Receiver as established by [G. L.] c. Ill, § 1271, including but not limited to . . . [obtaining financing to retain contractors to repair, restore and renovate the Property to render it safe and habitable for its intended use as a residential dwelling . . . .”
The record reflects that a deed recorded on May 13, 2002, in the Suffolk County registry of deeds appears to be a conveyance from Rochalska to Sklodowski of both buildings located at 199 and 201 Athens Street. An addendum to that deed recorded the same date recites that Rochalska “gives [her] rights of 201 Athens Street ... to Marian Sklodowski by Deeds, for consideration of rehab of 199 Athens Street.... Marian Sklodowski has the First Right of Refusal to purchase of 199 Athens Street. . . .”
Attached to this motion was the supporting affidavit of Sklodowski, which avers that he had known Rochalska for many years and had, in October, 2000, personally mailed to the city’s inspectional services department a registered letter from Rochalska notifying the department that she had moved from the property and providing her new address. Opposing the motion, the city attached two affidavits stating that no such letter had been received and that the letter was not in its files.
After the stay of receivership was allowed, a guardian ad litem (GAL) was appointed for Rochalska, a ninety year old woman who spoke only Polish. Although the docket reflects that a motion seeking appointment of a GAL was allowed on May 15, 2002, it further reflects that the GAL, Sharon Jones, was
In an order dated December 5, 2002 (see note 8, supra), which, inter alia, allowed Sklodowski’s motion to intervene, a judge of the Housing Court found that Rochalska “retained an interest in the property as set forth in the Addendum to the Dеed,” and that, on the basis of the deed and addendum thereto, see note 6, supra, Sklodowski “may only own a portion of the premises.” The judge determined, nevertheless, that Sklodowski had “demonstrated enough of an interest of record in the premises” to support allowance of the motion to intervene.
Kaye, who did not appeal from the order allowing Sklodowski to intervene or from the judgment awarding the receiver’s expenses, now argues that Sklodowski lacks standing to bring this appeal because the deed transferring the property from Rochalska to Sklodowski was defective in that it was recorded after notice of receivership of the property was recorded. “We treat standing as an issue of subject matter jurisdiction,” Ginther v. Commissioner of Ins.,
Apparently addressing motions or pleadings concerning a dispute between Rochalska and Sklodowski as to ownership of the property (filed after entry of the interlocutory order determining the reasonableness of the receiver’s expenses), the judge who had decided the issue of the receiver’s expenses determined, in an order dated March 24, 2005, that the “limited purpose” for which the court had exercised its jurisdiction “has been satisfied and the receivership was effectively terminated.” The judge noted that “with consent of . . . Rochalska, as well as her Guardian Ad Litem, [Sklodowski] proceeded to take corrective action in place of the Receiver, thereby effectively dissolving the receivership, and [Sklodowski] brought the property in question up to code as a result of which said property has been rehabilitated and put back on the rental market.” The order further alludes to actions brought by the GAL, then pending in the Probate and Family Court, contesting Sklodowski’s claim of title to the property.
We reject Kaye’s claim that the absence of the transcript from the hearing held on March 19, 2002, which resultеd in the appointment of the receiver, precludes Sklodowski from arguing that the judge made any error in the appointment. Sklodowski’s appeal does not relate to issues presented during the March 19, 2002, hearing. Rather than relying on facts that may have been elicited during that hearing, Sklodowski instead bases his argument on his interpretation of G. L. c. Ill, § 1271, which we address, infra.
General Laws c. 111, § 1271, as amended by St. 1992, c. 407, § 10, provides, in part:
“Upon the filing of a petition to enforce the provisions of the sanitarycode, or any civil action concerning violations of the sanitary code by any affected occupants or a public agency, ... the court may: issue temporary restrаining orders, preliminary or permanent injunctions; order payment by any affected occupants to the clerk of court, in accordance with the provisions of section one hundred and twenty-seven F; or appoint a receiver whose rights, duties and powers shall be specified by the court in accordance with the provisions of this section.
“Whenever a petitioner shows that violations of the sanitary code will not be promptly remedied unless a receiver is appointed and the court determines that such appointment is in the best interest of occupants residing in the property, the court shall appoint a receiver of the property.”
General Laws c. 111, §§ 127A-127J, were inserted by St. 1965, c. 898, § 3. Chapter 898 thereof was entitled, “An Act Relative to the Enforcement of the Minimum Standards of Fitness for Human Habitation Existing Under the State Sanitary Code.”
Compare language later in the same paragraph of G. L. c. 111, § 127A, inserted by St. 1973, c. 880, requiring that the sanitary code “designate those conditions which, when found to exist upon inspection of residential premises, shall be deemed to endanger or materially impair the health or safety of persons occupying the premises.”
General Laws c. Ill, § 127B, provides, in pertinent part:
“Upon a determination by the board of health, or, in the cit[y] of Boston ... by the commissioner of housing inspection, after examination as provided in said code, that а building, tenement, room, cellar, mobile dwelling place or any other structure (a) is unfit for human habitation, (b) is or may become a nuisance, or (c) is or may be a cause of sickness or home accident to the occupants or to the public, it may issue a written order to the owner or occupant or any of them thereof, requiring the owner or occupant to vacate, to put the premises in a clean condition, or to comply with the regulations set forth in said code which are not being complied with . . . . If the person so notified fails within a reasonable time to remedy the conditions thus set forth, the superior court on a petition in equity brought by the board of health, shall have jurisdiction, to enforce the requirements of the board of health, by appointment of a receiver in accordance with the provisionsof section one hundred and twenty-seven I, or by providing other equitable or legal relief.
“The superior court, housing court, and district court shall have jurisdiction in equity to enforce the provisions of said code.”
(Emphasis added.) See St. 1983, c. 84, § 2; St. 1992, c. 407, § 2; note 16, infra.
The reference in § 127B to § 1271 reflects a legislative intent that these sections be read together. See Boston Police Patrolmen’s Assn. v. Police Dept, of Boston, 446 Mass, at 50, quoting from 2A Singer, Sutherland Statutory Construction § 46.05, at 154 (6th ed. 2000) (“it is ‘not proper to confine interpretation to the one section to be construed’ ”).
General Laws c. 111, §§ 127B and 1271, were concurrently amended by St. 1992, c. 407, “An Act Clarifying the Powers of Housing Receivers” (Act). Section 2 of the Act amended G. L. c. Ill, § 127B, to allow the board of health to petition the court to enforce the requirements of the board of health, “by appointment of a receiver in accordance with the provisions of section one hundred and twenty-seven I, or by providing other equitable or legal relief.” General Laws c. Ill, § 1271, most recently amended by the same Act, was completely rewritten to expand the responsibilities and powers of court-appointed receivers. See St. 1992, c. 407, § 10.
The receiver refers in his brief to House Doc. No. 1278, which, as of the date of this opinion, has been referred to the House Committee on Housing for further study. The bill proposes to amend § 1271 as follows (emphasis added to indicate proposed additional language):
“Whenever a petitioner shows that violations of the sanitary code will not be promptly remedied unless a receiver is appointed and the court determines that such appointment is in the best interest? of occupants who reside or in the future may reside in the property, or any abutter for whom the property poses an immediate and material risk to healthor safety, the court shall appoint a receiver of the property. A receiver may be appointed for occupied or unoccupied residential property, vacant lots, or commercial premises so long as the subject property poses an immediate and material risk to the health or safety of an occupant.”
We “draw no inference on the issue of the interpretation of the statute from this pending legislation . . . .” Conservation Law Foundation, Inc. v. Director of the Div. of Water Pollution in the Dept, of Envtl. Quality Engr.,
However much we might have drawn less innocent conclusions from the evidence had we been called upon to decide these matters in the first instance, we defer to the trial judge, who was entitled to credit Buckley’s explanation regarding the money that exchanged hands. Compare Yankee Microwave, Inc. v. Petricca Communications Sys.,
The judge also found that “the record keeping by Buckley on work performed on this receivership left a great deal to be desired and was reconstructed after the fact, to great degree, from records furnished by the Receiver. . . . There is an estimate of time spent by Buckley on the project from March 23, 2002 through June 22, 2002, totaling 460 hours .... Buckley admitted during testimony that he made up the exhibit totаling the 460 hours worked by him on this property during the Fall of 2002. There was confusing testimony from Buckley and the Receiver as to monies paid by the Receiver to Buckley prior to the hearing, and then said monies being repaid by Buckley to the Receiver.”
The judge approved as reasonable the sum of $400 per week for twelve weeks paid to Lee Riquelme for similar services.
Check stubs in evidence reflect that eleven weekly payments made to Buckley between April 4, 2002, and June 13, 2002, each in the amount of $400, were for supervision or clerk of the works and security services. Kaye testified that he paid Buckley $200 per week for security for the property, which included “[d]rive-bys as necessary and entering the property” to assure that the property was “supervised appropriately.” Kaye’s testimony is consistent with Buckley’s proposal dated March 15, 2002, which included an estimate of “$200 per week, drive by and building check interior.” This would support an inference that $200 per week was paid to Buckley for supervision and $200 was paid for security services. It is unclear from the findings whether the judge intended to reimburse the receiver for Buckley’s supervisory services only and not security services, or for both; the judge stated that among other claimed expenses, the “[cjlaimed expenses for security . . . have been adequately compensated for in the awards made hereinbefore for clean-up, porch demolition and construction work.”