LEAF v. DRISCOLL (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

At issue is an order denying defendant Michael Driscoll's (Michael)³ motion for leave to intervene.⁴ Concluding that the judge did not abuse his discretion when denying the motion, we affirm.

Background. This case concerns a failed real estate transaction, with plaintiff Robert Leaf alleging that he, as buyer, and defendant James Driscoll (James), as seller, entered into an agreement for the sale of real property located at 10 Driscoll Way. The sale fell through when James allegedly declined to execute a purchase and sale agreement after accepting Leaf's offer to purchase. Relevant here, in his amended complaint Leaf named Michael as a party defendant, essentially seeking a declaration, through his third claim for relief, that James “has apparent authority to act on behalf of” Michael “with regard to 6 Driscoll Way.”

Michael answered, counterclaimed,⁵ and moved to dismiss Leaf's third claim. Michael's motion to dismiss was allowed and an order -- but not a partial judgment -- entered.⁶ Michael then filed a motion seeking leave to intervene as of right. A perplexed motion judge, observing that Michael already was “in the case,” denied Michael's motion in an order entered January 26, 2022.

Discussion. Michael had no reason to intervene: when he filed his motion he already was a party to the action.⁷ As the motion judge put it:

“I understand, reviewing the file, there was a motion to dismiss that was allowed. You had made counterclaims before that. You're in the case. I'm trying to understand why we need a motion to intervene.”

In his amended complaint Leaf specifically named Michael as a party defendant, Michael had answered Leaf's amended complaint and asserted counterclaims, and those counterclaims remained pending at the time of hearing on Michael's motion to intervene. See note 4, supra. After his motion for leave to intervene had been denied and he had noticed his present appeal, Michael, among other things, continued to participate actively in the litigation as a party; he opposed Leaf's motion to dismiss his counterclaims and moved for leave to amend.⁸ In short, when he filed his motion to intervene, and when the judge denied it, Michael was a party defendant, a plaintiff in counterclaim, and an active litigant.

In this light, the judge acted well within his discretion in concluding that Michael did not plausibly demonstrate that his interest, if any, in the property or transaction at issue would not “adequately [be] represented by existing parties” -- namely, by himself -- or otherwise that failure to permit intervention would “as a practical matter impair or impede his ability to protect that interest.” Mass. R. Civ. P. 24 (a), 365 Mass. 769 (1974). See Bolden v. O'Connor Cafe of Worcester, Inc., 50 Mass. App. Ct. 56, 61 (2000) (order allowing or denying motion to intervene of right reviewed for abuse of discretion).⁹

To the extent we have not specifically addressed any of Michael's arguments, “they have not been overlooked. We find nothing in them that requires discussion” (quotation omitted). Department of Revenue v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004).

Order denying motion for leave to intervene affirmed.

FOOTNOTES

3.   Because the defendants have the same surname, for clarity we refer to them by their first names.

4.   A single justice of this court construed Michael's G. L. c. 231, § 118 first par., petition as a timely notice of appeal from the order. We agree that the appeal is properly before us. Massachusetts Fed'n of Teachers, AFT, AFL-CIO v. School Comm. of Chelsea, 409 Mass. 203, 204 (1991) (“An order denying intervention [is] immediately appealable by the [applicants] claiming intervention as of right” [quotation omitted]).

5.   Among other things, and liberally construed, Michael may have raised claims for trespass; abuse of process; and other torts.

6.   At the hearing on his motion to intervene, Michael stated that the motion to intervene was not “at all commingled with the theory of my having been sued and being later dismissed.”

7.   The underlying case had been removed to Federal District Court by James. In his reply brief, Michael notes that he had been removed as a party by the Federal District Court judge on June 29, 2022. However, a Superior Court judge denied his motion to intervene on January 26, 2022, five months before the removal. Thus, these subsequent acts do not affect the order denying his motion to intervene, which is the sole subject of this appeal. As such, we also do not rule on Michael's claims of harassment, which were brought up for the first time in the reply brief, nor on the additional claims raised in his post argument “supplemental brief.” Tedeschi-Freij v. Percy Law Group, P.C., 99 Mass. App. Ct. 772, 781 (2021) (“we need not consider arguments raised for the first time in a reply brief”).

8.   We note that on April 1, 2022, approximately two months after Michael noticed his appeal and two weeks before it entered on our docket, Leaf and Michael filed a stipulation dismissing Michael's counterclaims with prejudice and withdrawing all then pending motions concerning same.

9.   Leaf's request for costs and appellate attorney's fees is denied.