24-P-0819
Mass. App. Ct.Sep 2, 2025Background
- KMF, LLC brought a summary process action against Charles G. and Joseph Reither to recover possession of a Lynn residence; after a bench trial the Housing Court ruled for KMF.
- At the close of the plaintiff's case defendants were unprepared to present evidence, asked the judge for a "bench warrant or capias," and the judge adjourned to consider subpoena requests; defense counsel voiced no objection to that course.
- Plaintiff introduced a deed to the property at trial; that evidence shifted the burden to defendants to contest ownership.
- Although defendants had previously raised a genuine-issue challenge to a prior foreclosure sale at summary judgment, they did not call witnesses or introduce documentary evidence at trial to rebut plaintiff's prima facie case.
- The judge ordered use-and-occupancy payments of $1,600/month; defendants challenged that order and postjudgment rulings but made no persuasive new arguments on appeal.
- The trial court denied the plaintiff's motion for attorney's fees; the Appeals Court affirmed that denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants were denied an opportunity to fully present their case | Defendants agreed to the adjournment plan and raised no specific objection; issue waived | Denied opportunity to present witnesses/evidence; sought bench warrant/subpoenas | Waived: defendants did not lodge a specific on-record objection; no error |
| Whether plaintiff met burden to prove ownership given disputed foreclosure sale | Deed introduced established prima facie ownership, shifting burden to defendants to rebut | Foreclosure sale was invalid; plaintiff failed to prove strict compliance with foreclosure requirements | Plaintiff made out a prima facie case; defendants failed to rebut at trial; involuntary dismissal denial proper |
| Whether use-and-occupancy payments were proper | Use-and-occupancy award is permissible under controlling precedent | Such payments were improper | Award of $1,600/month upheld; challenge fails |
| Whether denials of postjudgment motions (and denial of attorney's fees) were erroneous | Postjudgment denials supported by the record; equities do not support fees | Asserted errors but did not present new or distinct appellate arguments | Denials affirmed; plaintiff's attorney-fee motion denied |
Key Cases Cited
- Ciccarelli v. School Dep't of Lowell, 70 Mass. App. Ct. 787 (2007) (preservation of objections requirement)
- Atkins v. Atkins, 195 Mass. 124 (1907) (deed as prima facie proof shifting burden of proof)
- Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627 (2010) (appellant burden to show clear error in findings)
- Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 201 (1997) (standards for challenging factual findings)
- Bank of N.Y. Mellon v. King, 485 Mass. 37 (2020) (use-and-occupancy payments may be ordered)
- Chace v. Curran, 71 Mass. App. Ct. 258 (2008) (discussion of precedential value of summary decisions)