Home CHARGER INVESTMENTS, INC. vs. CITY OF REVERE & others (and a companion case).

7 Mass. App. Ct. 920

May 17, 1979

The plaintiffs, the operators of establishments in the nature of lounges in the city of Revere, held Sunday entertainment licenses issued pursuant to the first paragraph of G. L. c. 136, Section 4, for the calendar year 1978, together with common victualler (G. L. c. 140, Section 2) and all alcoholic on premises liquor licenses (G. L. c. 138, Section 12). Under the entertainment licenses they provided diversion for their patrons consisting of "dances performed by females to the accompaniment of music from phonograph records and a live band." In January, 1978, the city questioned the validity of the Sunday entertainment licenses on the basis that they lacked the approval of the mayor as required by the terms of the first paragraph of G. L. c. 136, Section 4. The plaintiffs filed complaints in the Superior Court against the city, its mayor, licensing board, and police chief, seeking declaratory and injunctive relief on assertions that the licenses, having been approved by the licensing board, were valid without the mayor's approval, and that G. L. c. 136, Section 4, is unconstitutional on its face. Preliminary injunctions were requested from a judge of the Superior Court seeking to restrain all the defendants from commencing any civil or criminal proceedings before any forum or agency regarding the status of the licenses. After consideration, the judge denied the requests for preliminary relief, and the plaintiffs appealed from the judge's order pursuant to the second paragraph of Section 118 of G. L. c. 231, as appearing in St. 1977, c. 405. Demoulas Super Mkts., Inc. v. Peter's Mkt. Basket, Inc., 5 Mass. App. Ct. 750 (1977).

We need not reach the questions briefed and argued whether the judge abused his discretion or erred in his application of the underlying law in denying the applications for injunctive relief (see Jones v. Massachusetts Bay Transp. Authy., ante 915 [1979], and discussion in 11 Wright & Miller, Federal Practice and Procedure Section 2962 [1973]) because the requests for preliminary relief resolved themselves with the expiration of the licenses at the end of calendar year 1978. The declaratory relief sought, apart from a preliminary injunction, can still serve as a basis (with appropriate amendments to the complaints as needed) for the determination of the present status of Sunday entertainment in the plaintiffs' lounges and provide the adjudicative facts necessary for proper review of the constitutional questions raised in connection with the application of G. L. c. 136, Section 4. See Note, 69 Harv. L. Rev. 1302, at 1311-1313 (1956). The disputes are not at this point, as contended by the plaintiffs, within the category of controversies "capable of repetition, yet evading review." Blake v. Massachusetts Parole Bd., 369 Mass. 701 , 708 (1976).

Appeals dismissed.


7 Mass. App. Ct. 920

May 29, 1979

By their appeals from judgments entered in the Superior Court the plaintiffs

Page 921

complain of (1) the denial of their motions to amend their complaints (see Mass.R.Civ.P. 15[a], 365 Mass. 761 [1974]) and (2) the allowance of the defendant's motions to dismiss their actions pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974).

Rule 15(a) requires that "leave to amend shall be given freely" in the absence of any apparent or declared reason. Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288 , 289 (1977). "In this case no apparent or declared reason for the denial of the motion to amend appears except the contention that the complaint, as proposed to be amended, fails to state a valid claim. . . . [A] judge properly may deny a motion to amend because the complaint as amended would fail to state a claim on which relief could be granted [footnote omitted]. Consequently, we analyze the issues argued on behalf of the plaintiffs on the basis of the allegations of the complaint, as proposed to be amended, to determine whether the plaintiffs have alleged a claim which may entitle them to relief." Jessie v. Boynton, 372 Mass. 293 , 295-296 (1977). Compare Evans Prod. Co. v. D. J. Dev. Corp., 6 Mass. App. Ct. 306 , 308 (1978). For the purpose of ruling on the motions to dismiss, we take the allegations of the proposed amended complaint as true. Nader v. Citron, 372 Mass. 96 , 98 (1977). Peters v. Hartford Acc. & Indem. Co., 377 Mass. 863 , 864 (1979). But see Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85 , 88 n.5 (1979).

We are unable to say that it appears beyond doubt that the plaintiffs are entitled to no relief under any state of facts which could be proved in support of the claims set out in their proposed amended complaints. Nader v. Citron, supra at 98. See Romano v. Sacknoff, 4 Mass. App. Ct. 862 (1976), and authorities cited. But see Mass.R.Civ.P. 12(e), 365 Mass. 756 (1974). It was thus error for the judge to deny the plaintiffs' motions to amend and to allow the defendant's motions to dismiss. Romano v. Sacknoff, supra. See Jessie v. Boynton, supra at 302-303. See generally Balsavich v. Local 170, Intl. Bhd. of Teamsters, 371 Mass. 283 , 287-289 (1976).

It will be a matter of proof, of course, whether the plaintiffs in fact had legally enforceable contracts with the defendant or whether, in all the circumstances, the defendant had a fiduciary obligation to the plaintiffs, and if such an obligation is found to exist, whether it was breached or carried out in a negligent or careless manner.

We express no opinion whether the defendant can provide sufficient material to warrant the allowance by a judge of motions for summary judgment in its favor. See Mass.R.Civ.P. 56(b), 365 Mass. 824 (1974).

The judgments dismissing the complaints are reversed, and the plaintiffs' motions to amend their complaints are to be allowed. The defendant may then move or answer according to the Massachusetts Rules of Civil Procedure. Costs are not to be awarded to any party.

So ordered.