Opinion
10-P-997
01-31-2012
LENARD B. ZIDE, trustee, & others v. KAREN L. McNIFF & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a judge of the Superior Court granted summary judgment to the defendants on all claims, the plaintiffs timely appealed from that judgment. Pending appeal, the plaintiffs sought an order seeking to reinstate a preliminary injunction that had entered in the Land Court before the case was transferred to the Superior Court. The same Superior Court judge denied their motion. The plaintiffs thereafter filed an emergency motion in this court to restore the preliminary injunction, and their motion was denied by a single justice of this court. The plaintiffs now appeal from the single justice's decision.
That appeal, and a subsequent ruling by the Superior Court judge on a motion to dismiss the appeal, are addressed in a separate memorandum and order pursuant to rule 1:28 of even date.
In reviewing a single justice's order denying a motion to stay or grant other equitable relief, we 'ask whether the single justice abused his discretion by entering an order without having a supportable basis for doing so.' Highland Tap of Boston, Inc. v. Boston, 26 Mass. App. Ct. 239, 240 (1988). 'Rarely, if ever, can it be said that a single justice is in error in denying relief.' Mezoff v. Cudnohufsky, 5 Mass. App. Ct. 874, 874 (1977), and cases cited. Such error must be 'so gross in its nature as to amount to an abuse and be an arbitrary exercise of power, or where equitable considerations in view of all the circumstances condemn its exercise.' Massachusetts Bonding & Ins. Co. v. Peloquin, 225 Mass. 30, 31 (1916).
No abuse of discretion has been shown here. Deed restrictions that had expired by operation of law were incorporated into a deed to Karen L. McNiff, and the Superior Court judge determined that the restrictions were unenforceable. The plaintiffs argue that incorporating the restrictions into a new deed somehow revived the restrictions, or at least that was the intention of the grantors. However, the record reflects the parties had no discussions regarding the restrictions prior to execution of the deed; nor was there any showing of mutual mistake in failing to incorporate new restrictions. Furthermore, the language of the 2004 deed contains no indication of an intent to create new restrictions, as it simply was copied verbatim from the 1969 deed.
The plaintiffs have demonstrated neither a substantial likelihood that the Superior Court judge erred, nor an abuse of discretion on the part of the single justice in denying relief.
Order of the single justice affirmed.
By the Court (Rapoza, C.J., Cohen & Agnes, JJ.),