40 Mass. App. Ct. 911

March 8, 1996

Henry J. Lane for the plaintiff.

This summary process case was dismissed by a judge of the Housing Court for failure to give proper notice. The landlord appealed. At oral argument counsel for the landlord, when questioned by the panel, acknowledged that a new notice had been sent and the tenant has vacated. Accordingly, the case before us is moot. The tenant has not filed a brief.

We are troubled by the filing and prosecution of an appeal in a case such as this where the matter can easily be remedied by a new notice at far less expense to the landlord and far less burden to the court system. We are also troubled by the failure of the landlord's counsel to inform the court prior to oral argument and our questioning that the matter is moot. Because of these concerns [Note 1] we order counsel not to charge the client for any services or costs in connection with this appeal and to give his client a copy of this order. See Estate of Solis-Rivera v. U.S. 993 F.2d 1, 3 (1st Cir. 1993); Howard v. Baumer, 519 So. 2d 679, 681 (Fla. App. 1988).

Although, when questioned at oral argument, counsel gave no satisfactory explanation for the prosecution of this appeal, counsel may, if he wishes, file an affidavit within thirty days of the date of release of this opinion setting forth facts showing why he should not be required to forego his fee.

Appeal dismissed.


[Note 1] The legal issue as to notice is, in our view, also frivolous.