Petition — Nabhan v. Abdulla

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MICHAEL RODAK, JR., CLERK

| In the

Supreme Court of the United States.

Octoser Term, 1976.

X 8671733

HAROLD G. NABHAN, FREDERICK N. NABHAN,

MABEL T. NABHAN, AMOS NABHAN anp

VIOLET ANN NABHAN,

PETITIONERS,

v.

FREDERICK ABDULLA anp JULIA C. ABDULLA,

RESPONDENTS.

Petition for Writ of Certiorari to the Appeals Court of the

Commonwealth of Massachusetts.

Daviw BERMAN,

100 George P. Hassett Drive,

Medford, Massachusetts 02155.

(617) 395-7520

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS.

Table of Contents.

Citations to opinions below

Jurisdiction

Question presented

Statutory provisions

Statement of the case

Reasons for granting the writ

Conclusion

Appendix

Opinion and judgment of Appeals Court, dated

February 4, 1977

Order of Supreme Judicial Court, dated March

29, 1977

Table of Authorities Cited.

CASES.

Coe v. Armour Fertilizer Works, 237 U.S. 413 (1915)

Cohen v. Herbert, 186 Cal. App. 2d 488, 8 Cal.

Rptr. 922 (1960)

Cox v. Louisiana, 379 U.S. 559 (1965)

Crosby v. Martinez, 159 Cal. App. 2d 534, 324 P. 2d

26 (1958)

Department of Highways v. Parker, 306 Ky. 14, 206

S.W. 2d 73 (1947)

Elliano v. Assurance Company of America, 45 Cal.

App. 3d 170, 119 Cal. Rptr. 653 (1975)

“I owbvon Ww

12

13

13

14

ii TABLE OF AUTHORITIES CITED.

Elliott v. Lawson, 87 Or. 450, 170 Pac. 925 (1918) ll

Geragosian v. Union Realty Co., 289 Mass. 104, 193

N.E. 726 (1935) 10

Giuseppe v. Cozzani, 248 Miss. 588, 159 So. 2d 278

(1964) ll

Goldstein v. Beal, 317 Mass. 750, 59 N.E. 2d 712

(1945) 9n

Interstate Commerce Comn. v. Louisville & Nash-

ville Railroad Co., 227 U.S. 88 (1913) 8

Johnson v. United States, 318 U.S. 189 (1943) ll

Mahoney v. Bernstein, 353 Mass. 649, 234 N.E. 2d

278 (1968) ll

Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306 (1950) 8

Peters v. Archambault, 361 Mass. 91, 278 N.E. 2d

729 (1972) 9n

Raley v. Ohio, 360 U.S. 423 (1959) ll

Schroeder v. City of New York, 371 U.S. 208 (1962) 8

Seaboard Air Line Ry. v. Koennecke, 239 U.S. 352 .

(1915) 10

Three Sons, Inc. v. Phoenix Ins. Co., 357 Mass. 271,

257 N.E. 2d 774 (1970) 10

Ungar v. Sarafite, 376 U.S. 575 (1964), reh. den. 377

U.S. 925 (1964) 7, 8, 10

United States ex rel. Turner v. Fisher, 222 U.S. 204

(1911) 10

Vermilye v. Western Union Telegraph Co., 207

Mass. 401, 93 N.E. 635 (1911) 6

TABLE OF AUTHORITIES CITED. iii

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution, Fourteenth Amendment 2, 6,

7, 8, 11, 12

28 U.S.C. § 1257(3) 2

Mass. G.L. c. 185, §§ 26 et seq. 8

Mass. G.L. c. 211A, § 11 3.3

PROCEDURAL RULEs.

Rules of the Supreme Court of the United States,

Rule 19 12

Rules of the Massachusetts Appeals Court, Rule 1:13,

1 Mass. App. Ct. 882, 889 6

Massachusetts Rules of Appellate Procedure, Rule

27.1 5

Massachusetts Rules of Civil Procedure, Rule 59 5

In the

Supreme Court of the United States.

OctToser Term, 1976.

No.

HAROLD G. NABHAN, FREDERICK N. NABHAN,

MABEL T. NABHAN, AMOS NABHAN anp

VIOLET ANN NABHAN,

PETITIONERS,

v.

FREDERICK ABDULLA anp JULIA C. ABDULLA,

RESPONDENTS.

Petition for Writ of Certiorari to the Appeals Court of the

Commonwealth of Massachusetts.

Citations to Opinions Below.

The opinion of the Appeals Court is reported at 1977

Mass. App. Ct. Adv. Sh. 119, 359 N.E. 2d 650 (1977). The

decision of the Supreme Judicial Court denying further

appellate review is found at 1977 Mass. Adv. Sh. 621.

2

Jurisdiction.

The judgment of the Appeals Court of the Common-

wealth of Massachusetts was entered on February 4, 1977.

On February 24, 1977, pursuant to Mass. G.L. c. 211A,

§ 11, defendants filed an application for further appellate

review in the Supreme Judicial Court of Massachusetts. On

March 29, 1977, this application was denied.

Jurisdiction of this Court is invoked pursuant to the pro-

visions of 28 U.S.C. § 1257(3).

Question Presented.

Was the Superior Court of the Commonwealth of Massa-

chusetts required by the Due Process Clause of the Four-

teenth Amendment to the Constitution of the United States

to grant petitioners’ request for a continuance of trial?

Statutory Provisions.

Section 1 of the Fourteenth Amendment of the Constitu-

tion of the United States is found at page xlvii of Volume I

of the United States Code (1958 ed.).

“All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

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life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.”

Section 11 of Mass. G.L. c. 211A is found at pages 665-

666 of the 1972 Acts and Resolves of the Commonwealth of

Massachusetts and states:

“There shall be no further appellate review by the

supreme judicial court of any matter within the juris-

diction of the appeals court which has been decided by

that court, except: — (a) where a majority of the

justices of the appeals court deciding the case, or of the

appeals court as a whole, certifies that the public

interest or the interests of justice make desirable a

further appellate review, or (b) where leave to obtain

further appellate review or late review is specifically

authorized by three justices of the supreme judicial

court for substantial reasons affecting the public interest

or the interests of justice. Upon the written order of a

majority of the justices of the appeals court, the

decision of a panel of the appeals court may be re-

viewed and revised by a majority of the justices of the

appeals court. Such a review shall not be a condition

precedent to obtaining further appellate review by the

supreme judicial court.”

Statement of the Case.

On May 19, 1972, respondents filed in the Superior Court

of the Commonwealth of Massachusetts a bill of complaint

4

seeking to determine the right of petitioners to maintain

appurtenant to a building owned by petitioners a structure

in the nature of a canopy overhanging land owned by

respondents. Under the rules of pleadings then in force in

the Commonwealth of Massachusetts, petitioners filed a

demurrer and plea in abatement. Neither respondents, as

plaintiffs in the Superior Court, nor petitioners, as defend-

ants, took any steps to have the dilatory pleadings heard

and disposed of or the case heard on the merits. A pre-

liminary injunction requested by respondents was denied.

On March 5, 1975, the Superior Court on its own motion

referred the case to a Master for hearing. On June 6, 1975,

respondents filed a motion to revoke the order of reference,

and this was allowed. On June 24, 1975, the Clerk of the

Superior Court informed petitioner Harold Nabhan, who is

an attorney and a member of the Bar of the Common-

wealth of Pennsylvania, that on June 25, 1975, this case

would be heard in the Superior Court only on plea and

demurrer and that trial would be held in September, 1975.

The same statement was communicated to petitioners’ attor-

ney of record.

On June 25, 1975, petitioner Harold Nabhan appeared in

court with his attorney, prepared to argue the demurrer

and the plea. At this point the Judge ordered immediate

trial. Both Mr. Nabhan and his attorney protested that the

oniy notice they had received was of hearing on the plea

and the demurrer, that they had no witnesses, and that

they were otherwise totally unprepared to go forward with

trial. Additionally, they informed the Judge that Mr.

Nabhan was seeking to retain new counsel more experienced

in the litigation of real property cases. They requested a

continuance. The Judge, recognizing that their assertions

were true, nevertheless ordered trial to begin immediately.

Petitioners proceeded “under protest.”

5

The Judge indicated that at the close of respondents’ case

he would give petitioners some time for preparation. In

fact, no time was given for petitioners to prepare; respond-

ents put in their entire case on June 25th, and the next

morning on June 26th at 10 a.m. the Judge insisted that

petitioners begin offering evidence, even though the motion

for continuance was renewed at that time. On the after-

noon of the 26th both sides rested.

On July 22, 1975, the Superior Court entered findings,

rulings and order for judgment. The findings and rulings

were adverse to petitioners. A judgment in accordance

therewith was entered on August 21, 1975. Pursuant to

Rule 59 of the Massachusetts Rules of Civil Procedure, peti-

tioners on August 21, 1975, filed a motion for new trial,

specifically pointing out in affidavit that they may have

inadvertently failed to cross-examine respondents’ main

witness, respondent Frederick Abdulla, on a critical issue.

The motion was denied on October 23, 1975.

Petitioners appealed to the Appeals Court of the Com-

monwealth of Massachusetts. In their brief to the Appeals

Court, they argued (inter alia) that it was error for the trial

judge to have refused a continuance under Massachusetts

law and that “denial of a continuance deprived defend-

ants of their right under the Fourteenth Amendment to the

Constitution of the United States to have adequate notice of

a hearing.” They cited and quoted from cases decided by

this Court to support their position. On February 4, 1977,

the Appeals Court entered judgment affirming the Superior

Court. It disposed of petitioners’ request for continuance in

a single sentence (359 N.E. 2d at 651): “The judge did not

abuse his «.. . tion in denying the continuance.”

Petition: ed a timely application for further appellate

review in tie Suprex< Judicial Court (Rule 27.1 of the

Massachusetts Rules oi Appellate Procedure, as amended,

6

p. A.P. 41 of the Rules of the Courts of the Commonwealth

(Mass.)), again alleging with citation of authority that the

denial of a continuance was erroneous and arguing:

“The refusal to grant a continuance when it operates to

force a person to trial who is not reasonably prepared

for trial is a denial of Due Process of Law, guaranteed

under the Fourteenth Amendment to the Constitution

of the United States.”

The Supreme Judicial Court on March 29, 1977, denied

further appellate review.

In civil appellate cases Massachusetts has no form cor-

responding to an assignment of errors wherein constitutional

or other issues are raised. Where a party asks the trial

court to take certain action without specifying the basis

for his request and the request is denied, the party is

permitted on appeal to urge any and all grounds in sup-

port of the action requested to be taken including fed-

eral constitutional grounds. Vermilye v. Western Union

Telegraph Co., 207 Mass. 401, 405-406, 93 N.E. 635, 636-

637 (1911). By rule of court, Massachusetts does require

that all appellate arguments be raised in the brief of the

party advancing them. Rule 1:13 of the Rules of the

Appeals Court. 1 Mass. App. Ct. 882, 889. As already

noted, petitioners’ brief did argue that the denial of a con-

tinuance was a violation of petitioners’ rights under the Due

Process Clause of the Fourteenth Amendment.

Tempting though it may be, we shall not at this point

examine the other issues of fact and law raised in this case.

Some further discussion will be necessary in the part of the

brief under the heading “Reasons for Granting the Writ.”

The sole point, however, of this petition is that in the

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circumstances it was constitutional error to compel petition-

ers to trial on literally a moment's notice.

Reasons for Granting the Writ.

THe Farture To Give Petitioners ANY ADVANCE NOTICE OF

THE DATE OF A TRIAL AT WHICH COMPLEX Issues oF LAW

AND FACT WERE TO BE PRESENTED DEPRIVED THEM OF DUE

Process OF LAW IN VIOLATION OF THE FOURTEENTH

AMENDMENT.

Can a litigant be ordered to trial on literally a moment's

notice? May a party rely on notice given in June by the

clerk of court that trial would not occur until September?

These are the two components of the question presented

(p. 2, supra): “Was the Superior Court of the Common-

wealth of Massachusetts required by the Due Process Clause

of the Fourteenth Amendment to the Constitution of the

United States to grant petitioners’ request for a continuance

of trial?”

We do not doubt that under both Massachusetts law and

federal constitutional law the question whether to grant a

continuance is addressed to the sound discretion of the

court. As this Court held in Ungar v. Sarafite, 376 U.S.

575, 589 (1964), reh. den. 377 U.S. 925 (1964): “The

matter of continuance is traditionally within the discretion

of the trial judge, and it is not every denial of a request for

more time that violates due process ....” But judicial

discretion means something more than the tossing of a coin;

it must be exercised with due regard to the rights of the

parties before the court. Crosby v. Martinez, 159 Cal.

App. 2d 534, 541-542, 324 P. 2d 26, 31 (1958). Nor is it

8

enough to say, as the trial court did in the instant case, that

the dockets are crowded and there would be no sitting in

July (to which petitioners requested a continuance when all

other requests were rejected). As the Ungar Court also

noted, “a myopic insistence upon expeditiousness in the face

of a justifiable request for delay can” effectively violate all

other constitutional rights.

It is a matter of settled law that Due Process, in a civil no

less than a criminal case, involves notice and the

opportunity for hearing. Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306, 314 (1950); Schroeder v.

City of New York, 371 U.S. 208, 212 (1962). But to satisfy

the Due Process Clause of the Fourteenth Amendment, a

hearing must be more than “empty formality” (Ungar,

supra); there is no hearing in the constitutional sense where

“the party . . . is not given an opportunity to test, explain,

or refute.” Interstate Commerce Comn. v. Louisville &

Nashville Railroad Co., 227 U.S. 88, 93 (1913). With less

than five minutes’ time to prepare, no attorney is ready to

“test, explain, or refute.” For this reason, however much

notice a party may be entitled to before hearing (see, e.g.,

Elliano v. Assurance Company of America, 45 Cal. App.

3d 170, 175, 119 Cal. Rptr. 653 [1975]), five minutes or

less is never constitutionally sufficient. But even if this

proposition is not universally true, it is at least true “in the

circumstances present in” this case (Ungar, supra), whose

facts we shall now briefly discuss.

In 1954, respondents purchased a rectangular strip of

land in Salisbury, Massachusetts, a New England shore

community popular for vacations and recreational activities.

The opinion of the Appeals Court refers to this strip as “the

locus.” The locus was registered under the Massachusetts

version of the Torrens Act (Mass. G.L. c. 185, §§ 26 et

seq.) and was subject to perpetual use as a pedestrian

9

thoroughfare. In short, the locus is a private way subject

to a public use. In 1962, petitioners bought a commercial

building adjoining the locus on the east and touching the line

of the locus. Appended to this building, which had been

built in the early 1940’s and was for a long time in common

ownership with the locus, was a canopy-like structure over-

hanging the locus. The canopy has been used by businesses

located in petitioners’ building to advertise and also has

given shelter to pedestrians at times of inclement weather.

In 1971 petitioners’ building was destroyed by fire and

subsequently was rebuilt as before with the canopy over-

hanging the locus.

As already noted, in the present action respondents

sought injunctive relief to restrain petitioners from main-

taining their canopy over the locus. Under Massachusetts

law, respondents, although plaintiffs in the Superior Court,

had an exceptionally easy case to try; their burden was

satisfied upon a showing that they owned the locus and that

petitioners’ canopy overhung it. Upon such showing

respondents became entitled to a mandatory injunction’

unless petitioners could satisfy their burden of showing some

cause for not granting an injunction. Petitioners believed

that with due time they could have established several

defenses arising out of the following circumstances: (a) the

‘easement enjoyed by the public to use the locus as a

thoroughfare, (b) the fact that the supposedly trespassing

structure does not touch the thoroughfare but only

overhangs it, actually affording shelter in inclement weather

to members of the general public using the locus as a

thoroughfare, (c) the tax-free and virtually, from the

' Goldstein v. Beal, 317 Mass. 750, 757-758, 59 N.E. 2d 712, 716-717

(1945); Peters v. Archambault, 361 Mass. 91, 92-94, 278 N.E. 2d 729,

730-731 (1972).

10

owner's viewpoint, maintenance-free status of the locus,

(d) the admitted absence of any harm to respondents

resulting from the existence of the overhang, (e) a delay of

eighteen years between respondents’ acquiring title to the

locus and their bringing of this action, and (f) respondents’

inequitable conduct in extending a building owned by them

onto a thoroughfare adjacent to the locus.

These defenses may be characterized as laches and a

general showing that injunctive relief would be inappro-

priate because it would not operate equitably and because

the injury to respondents was trivial. The burden with

respect to each of these defenses was, under Massachusetts

law, on petitioners as defendants in the Superior Court.

Three Sons, Inc. v. Phoenix Ins. Co., 357 Mass. 271, 278,

257 N.E. 2d 774, 778 (1970); Geragosian v. Union Realty

Co., 289 Mass. 104, 109-110, 193 N.E. 726, 728 (1935).

If a moment's preparation time is inadequate generally, it

is surely inadequate for a party who must carry this kind of

burden. Is it also unconstitutional? Although we have

found no case specifically holding that Due Process entitles

a party in a civil action to reasonable notice in advance of

trial, it is a proposition easily deduced from numerous cases

decided by this and other American courts. See United

States ex rel. Turner v. Fisher, 222 U.S. 204, 208 (1911);

Seaboard Air Line Ry. v. Koennecke, 239 U.S. 352, 354

(1915) (no denial of Due Process where at trial plaintiff was

- allowed to amend but defendant’s counsel disclaimed

resulting surprise; indication that unforeseeable surprise

would have entitled defendant to continuance); Ungar v.

Sarafite, supra (implication from statement that not every

denial of a request for more time violates Due Process is that

some denials may; Department of Highways v. Parker, 306

Ky. 14, 15, 206 S.W. 2d 73, 74 (1947) (forcing state

attorney general to trial in two-year-old case with one day’s

1]

notice held “a gross abuse of judicial discretion”); Giuseppi

v. Cozzani, 248 Miss. 588, 594, 159 So. 2d 278, 281 (1964);

Elliott v. Lawson, 87 Or. 450, 453-454, 170 Pac. 925,

926-927 (1918); Cohen v. Herbert, 186 Cal. App. 2d 488,

490-496, 8 Cal. Rptr. 922, 923-927 (1960).

Moreover, if it were not enough that petitioners were

given no notice that trial would be held on June 25, 1975,

they were actually given notice that trial would not be held

that day, that it would not be held until September. It is

the duty of clerks of court in Massachusetts, as it

undoubtedly is elsewhere, to notify parties of the date of

trial, and Massachusetts attorneys, again like attorneys

elsewhere, rely on such notice. See Mahoney v. Bernstein,

353 Mass. 649, 653, 234 N.E. 2d 278, 280 (1968). Such

reliance gives rise to a constitutional right that may not

later be defeated. See Johnson v. United States, 318 U.S.

189, 196-197 (1943); Raley v. Ohio, 360 U.S. 423, 437-438

(1959); Cox v. Louisiana, 379 U.S. 559, 571-573 (1965).

Having been told by the clerk that they need not be pre-

pared for trial on June 25, 1975, they had, we submit,

a right not to be prepared on that date. When the trial

judge ordered them to trial without further time for prepa-

ration, he acted in derogation of that right and violated

petitioners’ rights under the Due Process Clause of the

Fourteenth Amendment.

We briefly address the subject of prejudice. In Coe v.

Armour Fertilizer Works, 237 U.S. 413, 424 (1915), this

Court held that prejudice would be presumed where a

party was deprived of his right to an appropriate hearing

and that it would be no objection that, had the hearing

been held, the party would have lost anyway. Although

that rule was and is sound, we think it appropriate to point

out that, with respect to the defense of laches, the Appeals

Court specifically rested its opinion on the failure of the

12

petitioners to show prejudice stemming from respondents’

delay in bringing their action. Petitioners believe that in a

retrial they could show such prejudice stemming both from

the purchase of the building in 1962 and from several

negotiations and renegotiations of leases in which the

tenants relied upon the use of a canopy for advertising and

other purposes. Indeed, even a cursory perusal of the

transcript of the trial in this case will amply demonstrate

the validity of petitioners’ position that more than a few

minutes’ notice should be given before a party is compelled

to go to trial.

Although cases in which parties are ordered to trial with

as little time as present petitioners were afforded are

undoubtedly few and far between — were they frequent the

condition of the American judicial system would be lament-

able — this is nevertheless a case within the purview

of Rule 19 where “a state court has decided a federal

question of substance not theretofore determined by this

[C]ourt” and in a way “probably not in accord with

applicable decisions of this [C]ourt.” The time, we submit,

has come to determine just how little notice a party in a

civil action is entitled to have under the Due Process Clause

before he can be ordered to trial.

Conclusion.

For the reasons given, a writ of certiorari should issue to

review and reverse the judgment of the Appeals Court of

the Commonwealth of Massachusetts.

Respectfully submitted,

DAVID BERMAN,

100 George P. Hassett Drive,

Medford, Massachusetts 02155.

(617) 395-7520

Counsel for Petitioners.

13

Appendix.

APPEALS COURT.

No. 76-39.

FREDERICK ABDULLA & another vs.

HAROLD G. NABHAN & others.

February 4, 1977.

1. Assuming, as the defendants contend we should, that

the building which was built in the early 1940's, acquired

by the defendants in 1962, and destroyed by fire in 1971

overhung the locus by approximately five feet and that the

plaintiffs knew of that fact when they purchased the locus

in 1954, it does not follow that the defendants were entitled

as of right to rebuild the overhang after the fire. As the

locus was registered land, no easement to maintain the

overhang could have arisen by implication or prescription.

Dubinsky v. Cama, 261 Mass. 47, 58 (1927). Goldstein v.

Beal, 317 Mass. 750, 757, 758-759 (1945). See also Peters

v. Archambault, 361 Mass. 91, 93-94 (1972). The cases

relied upon by the defendants, Killam v. March, 316 Mass.

646 (1944), and Butler v. Haley Greystone Corp. 347 Mass.

478 (1964), are limited in their application to a prior

conveyance of an interest in registered propert, which,

although not appearing in the decree of registration or the

certificate of title, has come to the actual notice of a later

grantee of the registered property at the time of the convey-

ance to him. We need not reach the question whether, if

there had been an easement before the destruction of the

prior building in 1971, it was thereby terminated. See

Cotting v. Boston, 201 Mass. 97, 101-102 (1909). 2. Ab-

14

sent laches (no prejudice to the defendants having been

shown) or estoppel (clearly inapplicable in view of the

judge’s finding that the plaintiffs notified the defendants

prior to the construction of the present building that they

did not want the overhang to extend over the locus), the

overhang was properly ordered removed. Goldstein v.

Beal, supra, at 757-758. Peters v. Archambault, supra, at

92-94. 3. The judge did not abuse his discretion in denying

the continuance.

Judgment affirmed.

David Berman for the defendants.

Joseph A. Miragliotta, for the plaintiffs, submitted a

brief.

SUPREME JUDICIAL COURT

Orders.

The Supreme Judicial Court has made the following

orders with respect to application for leave to obtain

further appellate review:

March 29, 1977

Denied:

No. M-658. Frepenick AppuLLA & another vs. Haro_p

G. NasBHAN & others. Reported below: Mass. App. Ct.

Adv. Sh. (1977) 119.