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SJC

- 12754

YOUGHAL, LLC vs . AMANDA ENTWISTLE & another. 1

March 23 , 2020.

Summary Process , Appeal, Notice to quit. Practice, Civil

, Summary process, Appeal, Bond. Uniform Summary Process

Rules

. Landlord and Tenant , Termination of tenancy, Quiet

enjoyment. Consumer Protection Act , Landlord and tenant,

Unfair act or practice.

The defendant tenants appeal from a Housing Court judgment

for the plaintiff landlord on its summary process complaint, the

denial of relief on certain of their counterclaims, and from the

award of nominal damage s on other counterclaims. The landlord

appe als from the denial of its motion to dismiss the tenants'

appeal. The Appeals Court dismissed the tenants' appeal on

timeliness ground , and we granted further appellate review. We

conclude that the tenants' appeal is timely, and that the

landlord's summa ry process com plaint must be dismissed because

the summons and complaint were served within fourteen day s of

the tenants' receipt of the notice to quit . We affirm the

judgment with respect to the tenants' counterclaims.

Background . The landlord commenced a summary process

action against the tenants seeking to recover possession of the

subject premises and damages for unpaid rent. The tenants

responded by claiming improper termination of the tenancy

, and

counterclaiming for breach of the warranty of habitability, in

violation of G. L. c. 239, § 8A; violation of G. L. c. 186, § 14

(utilities, services, and quiet enjoyment); G. L. c. 239, § 2A

(reprisal for reporting violations of law); and G. L. c. 93A

1 Angela Entwistle.2

(consumer protection). 2 After a bench trial, on November 2,

2017, the judge ordered judgment for t he tenants on two

counterclaims, and awarded nominal damages. With respect to the

landlord's summary process c omplaint , she ordered judgment for

the tenants if they paid $6,225 to the landlord within te n days

and filed a receipt of the payment with the court; 3 otherwise,

the judge ordered judgment for the landlord. The tenants did

not make the payment, and final judgment entered on November 15,

2 01 7.

On November 13, 2017, before the entry of final jud gment,

the tenants filed a motion seeking a new trial or to alter or

amend the judgment. See Mass. R. Civ. P. 59 , 365 Mass. 827

(1974) . The judge denied the motion on November 21, 2017; the

tenants filed a notice of appeal within ten days after the

denia l of that motion. In addition, the judge denied the

landlord's motion to dismiss the appeal and request for an

execution. Over the landlord's opposition, an appeal bond was

set.

On the parties' cross appeals, the Appeals Court dismissed

the tenants' appeal on timeliness ground. We granted further

appellate review to consider whether a motion, pursuant to Mass.

R. Civ. P. 59, served before the entry of final judgment, is

timely for purposes of Mass. R. App. P. 4 (a)

, as amended, 464

Mass. 1601 (2013). We conclude that it is. We also conclude

that the summary process complaint must be dismissed because it

was served within the fourteen

- day period after receipt of the

notice to quit. We find no error in the Housing Court judgment

with respect to the counterclaims, and affirm that portion of

the judgment.

Discussion . On review of the Housing Court judge's

decision, "we accept her findings of fact unless they are

clearly erroneous. The judge's legal conclusions are reviewed

de novo" (citations omitted). Anastos v. Sable , 443 Mass. 146,

149 (2004)

.

1. Propriety of tenants' appeal

. Although the landlord

challenged the propriety of the tenants' appeal on sev eral

2 A counterclaim asserting mishandling of a security deposit

was withdrawn.

3 This amount reflects unpaid rent of $6,250 less nominal

damages of twenty

- five dollars awarded to the tenants on their

counterclaims.3

grounds, the Appeals Court d ismissed the appeal on a differ e n t

ground

. 4 The Appeals Court concluded that the tenants' appeal

was untimely and must be dismissed because the notice of appeal

was filed more than ten days after the entry of . . . judgment." 5

G. L. c. 239, § 5. We disagree: the appellate clock was

stopped by the tenants' timely posttrial motion . Under

Mass. R. A. P. 4 (a) :

"If a timely motion under the Massachusetts Rules of Civil

Procedure is filed in the lower court by any pa rty:

".

. .

"(3) to alter or amend a judgment under Rule 59 or for

relief from judgment under Rule 60, however titled, if

either motion is served within ten days after entry of

judgment; or

"(4) under Rule 59 for a new trial,

4 At oral argument, landlord's argument rested primarily on

the claim that the tenants' notice of appeal was inadequate

because it did not specifically reference the final judgment.

In the Housing Court, however, the landlord sought d ismiss al of

the appeal on a different ground, i.e., for "failure to give

bond or request a waiver of bond within the time allowed for

filing notice of appeal and filing an appeal bond ," citing G. L.

c. 239, § 5. On appeal, the landlord pressed the same claim,

arguing that the motion for a new trial did not expand the

period for filin g a notice of appeal provided in G. L. c. 239,

§ 5, pursuant to Mass. R. A. P. 4 or otherwise. It also claimed

that the tenants' notice of appeal was inadequate because it did

not request the clerk to schedule a hearing to approve an appeal

bond ; was not filed until December 1, 2017, sixteen days after

the entry of judgment ; and did not use the word "judgment." As

the landlord acknowledged in its brief, however, the H ousing

Court judge treated the notice of appeal as an appeal from the

final judgment.

5 Pursuant to Mass. R. A. P

. 4 (a)

, a notice of appeal in a

civil case must be filed within "thirty days of the date of the

entry of the judgment appealed from," unless "otherwise provided

by statute." In this case, a ten

- day period is provided by

G. L. c. 239, § 5 ( a ) ( " I f either party appeals from a judgment

of

. . . a housing court

. . . in an action under this chapter

.

. . that party shall file a notice of appeal with the court

within [ten] days after the entry of judgment" ).4

"the time for appeal for all parties shall run from the

entry of the order denying a new trial or granting or

denying any other such motion. A notice of appeal filed

before the disposition of any of the above motions shall

have no effect.

. . ."

Although the tenants filed their notice of appeal more than ten

days after judgment entered, on November 15, 2017, it was filed

within ten days of the denial of their m otion under Mass. R.

Civ. P. 59 for a new trial or to alter or amend the judgment.

The rule 59 moti on was a "timely motion" for purposes of Mass.

R. A. P. 4 (a), even though it was filed before the entry of

judgment.

Rule 59 requires only that "a motion for a new trial [or to

alter or amend the judgment] shall be served not later than

[ten] days after the entry of judgment" (emphasis added). Mass.

R. Civ. P. 59 (b), (e). Nothing in the rule precludes a

litigant from filing its motion before judgment actually has

entered, and nothing in the rule renders such a motion

"untimely." See Reporters' Notes (1973) to Rule 59, Mass. Ann.

Laws Court Rules, Rules of Civil Procedure, at 1116 (LexisNexis

2015) (" The wording of 59 [b], however, allows a motion to be

made both before or after the entry of judgment" ). Contrast

Mass. R. A. P. 4 (a) (notice of appeal filed before disposition

of enumerated timely

- filed motions without effect).

Manzaro v. McCann

, 401 Mass. 880, 881

- 882 & n.2 (1988),

does not require a different result. U nlike this case, Manzaro

did not involve an early

- filed rule 59 motion. In that c ontext,

our observation that the "rule 59 (e) motion was filed on

September 12, 1986, within ten days from judgment as directed by

that rule," recognizes only that the rule 59 (e) motion was not

late and, therefore, that the time for appeal did not begin t o

run until the motion was decided. Manzaro

, 401 Mass. at 882.

To the extent Empire Loan of Stoughton v. Stanley Convergent

Sec

. Solutions, Inc

., 94 Mass. App. Ct. 70 9 (2019), suggests

that a motion for reconsideration, to alter or amend a judgment,

or f or relief from judgment is not timely if it is served before

judgment enters, it is overruled.

The landlord's claims concerning the procedural propriety

of the appeal are equally without merit. The landlord suggests

that Mass. R. A. P. 4 does not toll the time for filing a notice

of appeal pr e scribed in G. L. c. 239, § 5. However, a lthough

G. L. c. 239, § 5, requires a party appealing from a summary5

process judgment to "file a notice of appeal with the court

within [ten] days after the entry of the judgment," a timely

motion pursuant to Mass. R. Civ. P. 59 to alter or amend a

judgment suspends the finality of the judgment. See Manzaro

,

401 Mass. at 882. The statutory period commences anew when the

rule 59 motion is disposed, i.e., when the entry of judgment is

effective.

With respect to the landlord's claim that, pursuant to Rule

12 of the Uniform Summary Process Rules, the tenants' notice of

appeal was ineffective because it failed to include a request to

set an appeal bond, the tenants did not request waiver of the

bond. We recognize that rule 12 provides:

" U pon receipt of notice of appeal and request for setting

of bond within the time prescribed by G. L. c. 239, § 5,

the clerk shal l forthwith schedule a hearing before the

court on whether an appeal bond shall be required and on

the form and amount of such appeal bond. The hearing shall

be held within three business days of said receipt."

As stated, however, G. L. c. 239, § 5, spec ifies the timing for

filing a notice of appeal; it does not address the mechanism for

setting an appeal bond. In that context, r ule 12 is best

understood to require that, if both a notice of appeal and a

request for setting of a bond are filed within the statutory

period, a hearing will be held within three business days. The

absence of a request for setting of bond, however, does not

render an otherwise timely notice of appeal defective.

Finally, with respect to the landlord's claim that the

tenants ' n otice of appeal was inadequate to claim an appeal from

the final judgment, we acknowledge that the notice of appeal

stated that the tenants were "aggrieved by the Findings of Fact,

Rulings of Law, Decision and the denial of their Motion for New

Trial or to Alter or Amend Judgment." In the circumstances

here, we conclude the notice was adequate, particularly because

the appeal permitted by G. L. c. 239, § 5, is an appeal from a

final judgment.

Having concluded that the appeal properly is before us, we

pro ceed to address the claims raised by the tenants.

2. Termination of the tenancy

. As of June 1, 2017, t he

tenants

, who occupied the premises pursuant to a written lease

,

had an unpaid rent balance of $1,250. On June 6, 2017, the

landlord's agent sought to terminate the tenancy by delivering6

to the tenants a notice to quit the premises in fourteen day s

.

S ee G. L. c. 186, § 11

. See New Bedford Housing Auth

. v. Olan

,

435 Mass. 364, 373 (2001) ("where a s tatute requires written

notice to terminate a te n a ncy, that n otice must be sent before

an action for summary process may be commenced"). The agent

taped the notice to the door of the premises. One tenant

testified that she was not present when the notice was

delivered

, and that she did not receive it un til June 7, 2017

.

The tenants claim that the ir tenancy therefore remained

unchanged through June 21, 201 7

, the fourteen th day after actual

receipt of the notice to quit. See Johnson v. Stewart

, 11 Gray

181

, 183 (1858) (" W hen an act is to be done within a given

number of days from the date or the day of a date of a written

instrument, the day of the date is to be excluded ")

. See also

King v. G & M Realty Corp

., 373 Mass. 658, 663 (1977 )

. Because

the summary process summons and complaint were served on Ju ne

21, 201 7

, i.e., within the fourteen

- day period after "actual

receipt" of the notice, the tenants contend the summary process

complaint should have been dismissed

. We agree

. 6

General Laws c. 186, § 11, provides that a fourteen day

notice to quit be "given in writing to the tenant" to

"determine" the lease. See Adjartey v. Central Div. of the

Housing Court Dep't

, 481 Mass. 830, 851 (2019). "Once the

deadline stated in the notice to quit has passed, the landlord

may serve his or he r tenant" with a summary process summons and

complaint to recover possession of the premises

. Id

. at 852

,

860

. See Hodgkins v. Price

, 137 Mass. 13, 18 (1884)

. See also

Rule 2(b) of the Uniform Summary Process Rules (1993). It is

the landlord's burden to "show that [it] gave a notice which

complied with the statute. The statute does not proscribe how

notice is to be given." See Ryan v. Sylvester

, 358 Mass. 18, 19

(1970). It is nonetheless evident that a notice taped to a d oor

is not "given to the tenant," until the tenant receives actual

or constructive notice of it. See id

., citing cases. In this

case, t he evidence at trial did not establish delivery of the

notice until June 7, 2017, when one tenant testified she

receive d it. Because the summary process proceeding was

commenced before the full fourteen

- day deadline had come and

gone, judgment m ust enter for the tenants

.

6 The tenants filed motions to dismiss or for a required

finding, based in part on the fact that the summary process

summons and complaint were served within the fourteen

- day period

after receipt of the notice to quit.7

3. Counterclaims

. Having concluded that the summary

process complaint must be dismi ssed, we turn now to the tenant s '

counterclaims. 7

a. Covenant of quiet enjoyment

. The tenants claim that

the judge erred in denying relief on their counterclaim for

breach of the covenant of quiet enjoyment. See G. L. c. 186,

§ 14. That statute provides that "[a] ny lessor or landlord of

any building or part thereof occupied for dwelling purposes

. . . who directly or indirectly interferes with the quiet

enjoyment of any residential premises by the occupant

. . .

shall

. . . be liable for actual and consequential d amages, or

three month's rent, whichever is greater, and the costs of the

action, including a reaso nable attorney's fee

. . . ." Id

. The

covenant protects a tenant from "serious interference with his

tenancy

-- acts or omissions that impair the character and value

of the leasehold ." (citations omitted). Doe v. New Bedford

Housing Auth

., 417 Mass. 2 7 3

, 285 (1994).

The tenants contend that their right to quiet enjoyment was

violated in myriad ways. They allege that they were responsible

for payment of electricity used in common areas; that they were

responsible for their own heat and hot water without a written

agreement to do so; and that certain conditions associated with

the premises, including a purported lack of a seconda ry means of

egress and issues associated with smoke and carbon dioxide

detectors, all interfered with their quiet enjoymen t of the

premises. After a two

- day trial, however, the judge determined

that the claims were without merit. Among other things, the

judge concluded that there was no credible evidence that

utilities were not furnished to the tenants or that they paid

for common area electricity. The judge also found, however

,

that the tenants paid for heat and hot water at the premises

without a writt en agreement to do so, as required by the State

s anitary c ode

, 940 Code Mass. Reg

. § 3.17

. See Poncz v. Loftin

,

34 Mass. App. Ct. 909

, 910

- 911 (1993). Nonetheless, the judge

concluded that the lack of a written agreement regarding

utilities did not inter fere with the tenants' quiet enjoyment of

the premises. There was no error in the judge's conclusion that

7 In the brief they filed in this cou rt, the tenants raised

no meaningful argument with respect to the Housing Court judge's

denial of relief on their counterclaim for breach of the

warranty of habitability. See G. L. c. 239, § 8A

. The judge

concluded that the tenants were behind in their r ental payments

before the landlord was on notice of claimed defects in the

premises

, and once it was on notice, it promply made repairs.8

there had been no breach of the covenant of quiet enjoyment, or

in her declining to award damages.

b. Unfair or deceptive business practices

. Alt hough the

judge concluded that the lack of a written agreement concerning

payment of utilities did not violate the covenant of quiet

enjoyment, she did find that the omission violated the State

s anitary c ode

, see 940 Code Mass. Reg s. § 3.17, and, therefore

,

G. L. c. 93A. See Poncz

, 34 Mass. App. Ct. at 910

- 911

. For

this violation, the judge awarded nominal damages and reasonable

attorney ' s fees, giving the tenants the option to file a motion

for attorney ' s fees before final judgment entered. On appeal,

the tenants claim a variety of other violations of the same

regulation, which they likewise claim violate G. L. c. 93A. As

best we can discern, however, each of these bare allegations

depend s on a view of the facts different from those found by the

judge, after trial. We decline to consider them further.

c. Retaliation

. Finally, we conclude that the Housing

Court judge correctly rejected the tenants ' claim that the

landlord's summary process action was brought in retaliation for

their complaints about the condition of the premises. See G. L.

c. 186, § 18; G. L. c. 239, § 2A. By statute, if a landlord

commences an action within six months of such a complaint, a

presumption of retaliation ari ses. See G. L. c. 186, § 18 (" T he

receipt of any notice of t ermination of tenancy, except for

nonpayment of rent

, . . . within six months after the tenant"

exercises such rights "create[s] a rebuttable presumption that

such notice or other action is a reprisal against the tenant for

engaging in such activities"). For purposes of G. L. c. 239,

§ 2A, a rebuttable presumption arises, whether or not the action

was for nonpayment of rent. See South Boston Elderly

Residences, Inc

. v. Moynihan

, 91 Mass. App. Ct. 455, 468

- 469

(2015) (" F or the landlord to over co me the stat utory presumption

of relation

. . . there still would need to be clear and

convincing evidence tha t the landlord would have sent the notice

to quit in the same manner and at the same time").

In this case, the tenants had a balance of unpaid rent of

$1,25 0 at the time the summary process proceeding commenced.

Under the circumstances, the judge correctly concluded that the

tenants were not entitled to a presumption of retaliation under

G. L. c. 186, § 18. With respect to G. L. c. 239, § 2A, the

judge dete rmined that the landlord overcame the presumption by

showing that it repeatedly had commenced summary process actions

against one of the tenants when she previously had fallen behind

in her rent. In the circumstances, we con c lude that the judge9

did not er r in denying relief on the tenants' counterclaim for

retaliation.

Conclusion . For the reasons stated, the landlord's summary

process complaint must be dismissed, because the summary process

summons and complaint were served before the full fourteen

- day

period provided in the notice to quit had elapsed. The judgment

with respect to the tenants' counterclaims is affirmed. The

case is remanded to the Housing Court for further proceedings

consistent with this opinion.

So ordered

.

Francis B. Fennessey for the plaintiff.

Alan H. Aaron for the defendant s

.

H

. Esme Caramello , for City Life /Vida Urbana & another,

amici curiae, submitted a brief.

Joseph N. Schneiderman , for Chelsea Collaborative, amicus

curiae, submitted a brief.