Opinion
16-P-92
01-05-2017
DAVID CURRAN & another v. MARK BAUERSACHS & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this summary process action, the tenants appeal from a Housing Court judgment that granted the landlords possession and dismissed the tenants' counterclaims. We affirm in part and reverse in part.
Background. The plaintiffs (landlords) own a single-family home in Hudson in which the defendants have lived as tenants since 2005. Although the tenancy was originally subject to an annual lease that was renewed several times, the tenants eventually became tenants at will (as their brief acknowledges). In late February, 2015, the landlords wrote a letter to the tenants requesting that they "quit and deliver up [the premises] at the expiration of that month of your tenancy which shall begin next after this date." The landlords then had a constable serve that letter (notice to quit) on the tenants by leaving a copy of it at their home. When the tenants did not vacate the premises, the landlords initiated a summary process action in Housing Court on April 1, 2015.
In answering the complaint, the tenants alleged that "[t]he landlord[s] started this case before the Notice to Quit expired." See G. L. c. 186, § 13 (generally prohibiting the filing of a no-fault summary process action until the expiration of a specified waiting period that follows the termination of the tenancy through service of the notice to quit). In this manner, the question of precisely when the notice to quit was served became the central issue in the case.
In pertinent part, the statute states that "no action to recover possession of the premises shall be brought, nor shall the tenant be dispossessed, until after the expiration of a period, equal to the interval between the days on which the rent reserved is payable or thirty days, whichever is longer, from the time when the tenant receives notice in writing of such termination." G. L. c. 186, § 13, as appearing in St. 1979, c. 730, § 1. Case law has interpreted such language not only as requiring a waiting period of at least thirty days after termination of the tenancy, but also as requiring that the tenancy be terminated on a day on which rent is due (on a typical month-to-month tenancy, the first of the month). See U-Dryvit Auto Rental Co. v. Shaw, 319 Mass. 684, 685 (1946) (interpreting what was then G. L. c. 186, § 12), and cases cited. In the case before us, the parties agree that the statutorily required waiting period extended through the first full calendar month following service of the notice to quit.
It is undisputed that the landlords asked the constable to serve the notice to quit by February 28, 2015, and that the constable swore on the return of service that the notice was served on that day. However, the tenants claimed that the notice to quit in fact was not served until March 3, 2015, when, after one of them spotted the constable on their snow-covered porch, they found an envelope containing the notice to quit secreted under a sofa there. The parties agree that if the notice to quit was served on February 28, 2015, the summary process action was timely, but if the notice to quit was not served until March 3, 2015, it was premature.
Discovery revealed that the constable was at the home on March 3, 2015, albeit allegedly to take follow-up photographs. Whether any such photographs actually existed became a hotly disputed, and ultimately unresolved, issue in discovery.
In addition to raising the timing of the notice to quit as a defense, the tenants also purported to base counterclaims on it. They touched on this issue in their original response to the complaint, describing their counterclaim as challenging a "bad faith attempt to deliver notice to quit on March 3, 2015 by concealment on [a] snow-covered porch (attempt to change service date)." As the case progressed, it became apparent that the tenants were alleging that the constable intentionally misstated the service date on the return of service, that the landlords, at a minimum, knew or should have known of the misstated service date, and that, by failing to correct it, the landlords participated in fraudulent conduct. Based on such allegations, the tenants eventually amended their counterclaims to claim that by participating in a cover-up of the real service date, the landlords interfered with their right to quiet enjoyment pursuant to G. L. c. 186, § 14, and violated G. L. c. 93A, § 2A.
The tenants also alleged that the landlords violated G. L. c. 186, § 12. It is likely that the tenants meant to cite § 13 instead, since it is that section that addresses when a no-fault summary possession action is premature. In any event, the tenants no longer press any claim that a "violation" of § 12 (or § 13) supports an independent cause of action in which damages could be due.
After extensive discovery and motion practice, the landlords eventually addressed the tenants' prematurity claim by initiating a new summary process action. The tenants answered the new complaint in essentially the same manner as the first, raising the controversy over service of the notice to quit both as a defense and as the basis for purported counterclaims. The two cases were consolidated, with the second summary process action effectively superseding the first. With the central issue in the initial case having been addressed by the landlords' refiling their action, the landlords moved for summary judgment. A Housing Court judge ruled in their favor, ordering a judgment that granted them possession and that dismissed the tenants' counterclaims. Before us now is the tenants' appeal from that judgment.
The landlords took this action after the judge issued a pretrial order that noted that the timing issue could be cured in this manner. In that same order, the judge announced his view that the tenants' counterclaims raised no cognizable claims for money damages.
In the response to the second action, the defenses and counterclaims have multiplied, but at least those that the tenants continue to press are variations on the same theme: Namely, that by participating in a fraudulent effort to misstate when the notice to quit was served, the landlords interfered with their rights to quiet enjoyment, see G. L. c. 186, § 14, and violated c. 93A.
The tenants seek to make much of the fact that the landlords moved for summary judgment only in the second summary process action, yet the judge ordered entry of judgment on both dockets. Arguably, it would have been procedurally neater to have the first action dismissed; however, any procedural irregularity in this respect was of no consequence because, for all practical purposes, the second action superseded the first action, and the two cases in any event were consolidated. We note that the tenants' notice of appeal itself refers to a single judgment.
Discussion. In their fifty-page opening brief and twenty-page reply brief, both of which were submitted pro se, the tenants assert multiple claims of error. With respect to the landlords' claim to possession, virtually all of their arguments in one way or another harken back to the controversy over when the notice to quit was served. However, that dispute was rendered moot by the filing of the second summary process complaint, which, going forward, cured any timing defect presented by the original complaint. Simply put, the second action was timely, even if the first was not. Because the tenants have not raised any other viable defense to the second summary process action, the judge properly determined that the landlords were entitled to possession.
It is undisputed that the second summary process action was filed several months after the notice to quit was served.
We discern no merit in the tenants' suggestions that a misstatement in the return of service -- even if intentional -- rendered the notice to quit void and the whole notice process "unlawful." The tenants conceded that by March 3, 2015, they were served with an otherwise valid notice to quit.
That leaves the question whether the judge properly dismissed the tenants' counterclaims. As an initial matter, the tenants allege procedural error. The judge erred, they argue, in dismissing the counterclaims when the landlords' motion for summary judgment did not address them (focusing instead on the landlords' claim to possession). To the extent that the tenants claim that they were completely surprised by the judge's actions, this rings a little hollow. Nevertheless, we agree that the judge erred by dismissing these claims sua sponte. Without the landlords having moved for summary judgment on these counterclaims, the step-wise process designed to create a definitive record through which it can be determined whether there are material facts in dispute never took place. Gamache v. Mayor of N. Adams, 17 Mass. App. Ct. 291, 295-296 (1983) (reversing sua sponte grant of summary judgment where record was "woefully inadequate" and losing party not given opportunity to submit affidavits). Absent such a record, it would be inappropriate for us to address whether the counterclaims are independently viable.
In opposing the motion for summary judgment, the tenants themselves highlighted that their counterclaims remained pending, and by that point in the litigation, the judge already had stated his view that the counterclaims did not assert independently viable claims. See note 6, supra. Moreover, at the hearing on the motion for summary judgment, the judge himself raised the issue of the viability of the counterclaims, and the tenants were given, and took, some opportunity to respond.
Gamache recognizes that a judge does have "the power, sua sponte, to enter full summary judgment, provided that the parties had sufficient notice of his intention to do so, opportunity to submit affidavits, and a right to be heard on the matter." Id. at 295. We recognize that some argument can be made that this standard was met here. See note 11, supra. On balance, however, we think that more process was due before summary judgment was entered as to the whole case.
The defendants did not concede facts that rendered judgment in the landlords' favor on the counterclaims inevitable as a matter of law. For example, the tenants did not concede that the landlords were leasing the only home they owned. Compare Neihaus v. Maxwell, 54 Mass. App. Ct. 558, 563 (2002) (one renting his own home while he lived overseas is not engaged in business or commerce and therefore is not subject to c. 93A). In addition, although the judge was understandably skeptical that the tenants suffered any financial harm as a result of any violation of c. 93A, the tenants do seek damages for emotional distress, which are compensable pursuant to that statute. See Haddad v. Gonzalez, 410 Mass. 855, 871 (1991). With respect to the tenants' claim for breach of the covenant of quiet enjoyment, while a failed effort to evict a tenant generally cannot support such a claim, there may be an exception to this principle if a tenant can demonstrate "malice or ill will." Rahman v. Federal Mgmt. Co., 23 Mass. App. Ct. 701, 707 (1987). None of this is to suggest that we think the tenants' counterclaims have merit. We simply point out that the resolution of such claims may be sufficiently bound up with the facts that summary judgment should not have issued on these claims sua sponte without the development of a summary judgment record.
In sum, that portion of the judgment that grants the landlords possession is affirmed. The portion of the judgment that dismisses the tenants' counterclaims pursuant to G. L. c. 93A, and G. L. c. 186, § 14, is reversed, and the matter is remanded for further proceedings consistent with this memorandum and order.
We deny the landlords' request for double appellate costs and attorney's fees.
So ordered.
By the Court (Wolohojian, Milkey & Shin, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 5, 2017.