Home DONALD A. BARTLETT, JR., & another vs. DONALD R. SMITH.

10 Mass. App. Ct. 820

June 30, 1980

The defendant is appealing from that part of a judgment entered in the Superior Court denying his claim for counsel fees and expenses incurred in the present action to enjoin foreclosure and to redeem and discharge the mortgage and in two of three prior related actions [Note 1] in which he and the plaintiffs were involved.

Pursuant to G. L. c. 231, Section 6G, a single justice of this court has previously heard and ruled on the two earlier cases (Nos. 38190 & 38465). As no question of the propriety of those orders is before us, we need not discuss either of them any further.

As to the instant case (No. 39095), we agree with the reasoning and determination of the Superior Court judge that this "action . . . was occasioned . . . by the improper [refusal] of the mortgagee [defendant] to accept the proper tender by the mortgagor [plaintiffs] of the mortgage indebtedness," and as such, the legal fees and costs of these proceedings are not collectible as part of the mortgage indebtedness. See Bangs v. Fallon, 179 Mass. 77 , 85 (1901); Leventhal v. Krinsky, 325 Mass. 336 , 341 (1950). Under the provisions of the mortgage note, the defendant was entitled only to the fees and costs arising out of and incidental to the foreclosure action. See id. at 343.

Neither party is to have costs of appeal. Mass.R.A.P. 26(a), 365 Mass. 873 (1974).

Judgment affirmed.


[Note 1] The judge awarded the defendant legal fees and costs incurred in his initial foreclosure action (No. 38436), and that ruling is not now being challenged. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).


10 Mass. App. Ct. 820

July 1, 1980

There was no error in the entry of judgment for the defendant on the plaintiff's motion for summary judgment. Mass.R.Civ.P. 56(c), 365

Page 821

Mass. 824 (1974). The defendant was not required to compensate the plaintiff for private psychological therapy under the Medicaid program. G. L. c. 118E, Section 1. See 42 U.S.C. Section 1396a(a)(10)(A). The defendant's decision to fund only that psychological therapy which is provided in a multidisciplinary setting is neither unreasonable (see Beal v. Doe, 432 U.S. 438, 444 [1977]) nor violative of the freedom of choice provisions of the Federal statute (42 U.S.C. Section 1396a[a][23]). There is no merit to the plaintiff's belated argument that the Commonwealth is estopped because some State employee gave her assurance that Medicaid would cover this expense. Doris v. Police Commr. of Boston, 374 Mass. 443 , 449-450 (1978).

Judgment affirmed.