23 Mass. App. Ct. 577 | Mass. App. Ct. | 1987
After a trial, a judge of the Worcester County Housing Court concluded that the plaintiffs had not established “cause” (under the standards discussed in Spence v. Gormley, 387 Mass. 258 [1982]) to justify the defendant’s eviction from their Green Hill Towers development. We reverse the judgment.
On August 19, 1985, the defendant occupied an apartment under a written lease in the plaintiffs’ 185-unit development.
The victim of the burglary suffered from lupus and multiple sclerosis. She indicated that “ [a]s a result of [the] incident I am constantly worried and my health is declining.” She also “questioned whether] I should move,” stating that “I become emotionally upset when I leave the house and see the people who are responsible for breaking into my home.” There was also evidence that other residents expressed fears for their safety.
The defendant apologized and offered to pay for the damage. She also indicated to the victim and to management that if they pressed charges she “would be glad to go down to the juvenile court and do whatever had to be done.” When management failed to do so, the defendant obtained a complaint against Raphael as a delinquent child, and a juvenile court committed him to the Division of Youth Services (D.Y.S.) until his eighteenth birthday. A few weeks after his commitment, Raphael was hospitalized for a ruptured appendix. After leaving the hospital, he returned to the defendant’s apartment to recuperate while being watched by his twenty-one year old sister. When he was able to walk, the defendant called D.Y.S. and had him returned to custody. David continues to live in the apartment.
The plaintiffs sent the defendant notice of termination of her lease for “failing to live in a peaceful way respecting the
The judge found that both of the defendant’s sons were involved in the incident, although he found Raphael to have been the principal wrongdoer. He considered the standards in Spence v. Gormley, supra, to be applicable to this case.
We can discern no evidence sufficient to support a finding that the defendant met one of these three circumstances. The defendant did not identify any considerations such as a “prior record of good conduct, that might have made [her son’s criminal] conduct unforeseeable.” Spence v. Gormley, 387 Mass. at 265-266. Nor does the fact that the defendant was at work when the incident happened, and unable to be reached by telephone, establish that the incident was not foreseeable or, if foreseeable, that it could not have been prevented. Most criminal or disobedient acts by juveniles are done outside their parents’ presence. To find this type of evidence sufficient to negate the inference would create a loophole which we do not think was intended by the Supreme Judicial Court. The fact
In the defendant’s favor, there was evidence that she was embarrassed, that she knew Raphael was wrong, that she had taught her children the difference between right and wrong, and that she felt that she should not be blamed for the incident because “I can’t be with my children twenty-four hours a day.” She also testified that she had arranged for Raphael to live in New York with his grandmother when he was released from D.Y.S. But this evidence is not sufficient, in our view, to satisfy her burden of proof. What is missing — and it is critical in this case — is some proof that this was a first-time incident or, if not the first incident, that the defendant had acted decisively and effectively to prevent a recurrence and that Raphael’s act was for that reason unforeseeable. It was the defendant’s obligation to provide that proof and without it the judge’s finding that the “incident . . must be viewed as an isolated one and not foreseeable” cannot stand.
The judgment is reversed. A new judgment is to be entered awarding possession to the plaintiffs.
So ordered.
The plaintiffs argue that the Spence v. Gormley “cause” requirements does not apply to their housing development but applies only where a government agency charged with administering public housing, such as a housing authority, has brought an eviction action. They rely on the fact that the record does not clearly show that the development in which the defendant lived is subsidized by public agencies to the point where regulations governing public housing developments should apply to the eviction of tenants. See, e.g., Lopez v. Henry Phipps Plaza South, Inc., 498 F.2d 937 (2d Cir. 1974). We need not decide the question because counsel for the plaintiffs did not object when the Spence v. Gormley decision was brought to the judge’s attention, and accepted by him, as the controlling precedent. An issue not properly raised in the trial court cannot ordinarily be raised for the first time on appeal. Stigmatine Fathers v. Secretary of Admin. & Fin., 369 Mass. 562,565 (1976). See also Dominick v. Dominick, 18 Mass. App. Ct. 85, 93 (1984).
There was information in the plaintiff’s answers to two of the defendant’s interrogatories which might have assisted the defendant in negating the inference. The answers, however, were not introduced in evidence and
The parties have not, quite properly, made us aware of any change in the defendant’s situation since the trial. In any event, the owner is entitled to possession if, at the time of the eviction hearing, it was entitled to judgment for possession. “[D]ue process inevitably entails some delay between the conduct claimed by the landlord to warrant termination of a tenancy and the decision whether termination is justified. ... If ... the [defendant’s] boys have reformed [or] . . . can be kept away, this is all to the good. . . . But if [the landlord] was entitled to serve its notice of termination . . . due process does not require .. . [consideration] of improved conduct during the period consumed by the hearing ... [or by the appellate] proceedings which [the tenant] initiated.” Lopez v. Henry Phipps Plaza South, Inc., 498 F.2d at 945-946.