Opinion
March 8, 1983.
Present: Cowdrey, P.J., Forte Jodrey, JJ.
Landlord and Tenant, Lease as contract; Anticipatory breach. Damages, Rent due; Increased Taxes. Practice, Civil, Motion to amend pleadings; Dist./Mun. Cts. R. Civ. P., Rule 15.
Report of court's vacation of assessments on two causes of action. Action heard in the Waltham Division by K. Doyle, J.
Frank R. Sherman for the plaintiff.
Daniel Briansky for the defendant.
This cause is before the Appellate Division on two questions reported by the judge who assessed damages. A different judge granted the plaintiff summary judgment on the issue of liability. The two reported questions announced before the assessment, but reported after assessment, are as follows:
1. Is the plaintiff limited to recovery only for such installments of rent as have become due at the time of the commencement of this action?
2. Is the plaintiff entitled to recover for rent due for the period December 1, 1979 through December 31, 1980 when plaintiff never executed a new lease nor a formal extension with the defendant for that period?
To place the questions in their proper context, the allegations and reported facts are as follows:
The plaintiff as landlord leased to the defendant as tenant office space for the period December 1, 1975 through November 30, 1979 for a yearly rent of $5,820.00 payable in equal monthly installments of $485.00 on the first of each month; there was no acceleration clause calling for the balance of the yearly rent in the event of a default in the monthly rent. The lease gave the tenant an option to renew the lease for four consecutive five year terms upon a fair and reasonable rent, but the option was required to be exercised in writing ninety (90) days prior to the end of each term. In the event the parties could not agree on a reasonable rent prior to thirty (30) days before the expiration of each term, an arbitration procedure was called for. On July 2, 1979, the defendant wrote the landlord exercising the tenant's option to renew the lease to be effective December 1, 1979 for five years ending November 30, 1984.
The defendant vacated the premises on or about September 1, 1979 having paid the monthly rent through August 31, 1979. The plaintiff never executed a new lease or any extension with the defendant after receipt of the defendant's letter of July 2, 1979. There is no allegation that the parties either agreed upon a new rent or that any of the parties designated a realtor as an arbitrator according to the arbitration procedure contained in the lease.
This action was commenced on October 11, 1979 by the filing of a complaint specifying three causes of action, to wit:
First: seeks payment of the September 1979, the October 1979 and the November 1979 monthly rents pursuant to the original lease;
Second: seeks monies for increased taxes that were due May 1, 1979, pursuant to the original lease;
Third: seeks judgment "for such sums as later became ascertainable" for defendant's share of increased taxes pursuant to the lease for municipal fiscal years "commencing July 1, 1979 and ending June 30, 1985."
On January 18, 1980, a motion to amend the complaint was allowed adding two causes of action, to wit:
Fourth: for damages from an alleged conversion on or about September 1, 1979;
Fifth: for judgment based upon a Superior Court Department judgment dated January 4, 1980.
The plaintiff sold the building in December 1980 to a third person.
Although amendments relate back to the original pleading, Dist./Mun. Cts. R. Civ. P., Rule 15(c), McSoreley v. Town of Hancock, Mass. App. Ct. Adv. Sh. (1981) 601. Rule 15(d) permits a plaintiff "to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented . . ." This rule, effective on July 1, 1975, changed prior Massachusetts law. See Reporter's Notes to Mass. R. Civ. P., Rule 15.
Even though the lease states an annual rent, it specifies that rent is due in monthly installments on the first of each month. There being no acceleration clause in the lease, as of the filing of the complaint on October 11, 1979, the only alleged rents overdue were the September 1, 1979 and October 1, 1979 monthly installments.
Any claim for rents or other payments that were not due and payable by October 11, 1979 relies upon an anticipatory breach for which recovery would be denied, Petrangelo v. Pollard, 356 Mass. 696, 702 (1970); Tirreil v. Anderson, 244 Mass. 200 (1923); Daniels v. Newton, 114 Mass. 530 (1874), unless an amendment pursuant to Rule 15(d) is allowed specifying rents became due after October 11, 1979. In this case, there are no such supplemental pleadings.
Massachusetts does not recognize a cause of action based upon an anticipatory breach. NORMAN R. PRANCE, Anticipatory Repudiation of Contracts: A Massachusetts Anomaly, 67 MASS. LAW REVIEW 30 (1982).
The third cause of action in its present form without a supplemental pleading specifying amounts of tax payments that have become due, if any, seeks a declaratory judgment, which is beyond the jurisdiction of the District Court Department in behalf of a plaintiff.
On the state of the pleadings as submitted to the Appellate Division, the answer to the first reported question is yes, and the answer to the second is no.
In view of the answers, there is no need to discuss the issue of whether or not there was a lease beyond November 30, 1979
The assessments on causes of action # 1 and # 3 are vacated and the suit is returned to the Waltham Division for further action consistent with this opinion.