NICHOLAS S. HODGE & another vs. WAYNE KLUG
No. 92-P-154
Appellate Court of Massachusetts
September 22, 1992. - December 28, 1992.
33 Mass. App. Ct. 746
BROWN, KASS, & IRELAND, JJ.
Middlesex. Maya Ruettger-Cruciana.
In a summary process action, the defendant‘s notice of appeal filed prematurely, one day before entry of judgment on a separate piece of paper in accordance with
In a summary process action, the judge correctly denied the defendant‘s motion to amend his answer by adding new counterclaims, where denial of the motion was warranted by the defendant‘s undue delay, bad faith, and dilatory motive, undue prejudice to the plaintiffs, and the defendant‘s introduction of entirely new theories of liability when trial was imminent. [751-752, 755-758] BROWN, J., concurring.
The court was of the view that the rights afforded under
This court, although denying the plaintiffs’ request for an award under
SUMMARY PROCESS. Complaint filed in the Lowell Division of the District Court Department on July 11, 1990.
On appeal to the Superior Court Department the case was heard by George A. O‘Toole, Jr., J.
Daniel J. Lyne, II (Kara L. Thornton with him) for the plaintiffs.
Charles Harak & Judith Liben, for Massachusetts Tenants Organization, amicus curiae, submitted a brief.
KASS, J. Rather than coming to a “just, speedy, and inexpensive determination” of a summary process action (see
These, in summary, are the facts, drawn — with some supplement from the record — from careful findings made by a judge of the Superior Court. In August, 1981, the defendant Klug took up residence in a slate-roofed cottage (the cottage) converted from a carriage house. In the cottage were a living room, bedroom, kitchen, bathroom, full basement, and attic. The cottage is an accessory structure located on a fifteen-acre estate (the property) on the Bedford-Billerica line adjoining a wildlife preserve along the Concord River. Klug‘s occupancy arrangement, a tenancy at will, rent payable monthly in advance, was made orally with the then owners of the property, the trustees of the Estate of Edward Pickman Trust. Rent at the inception of Klug‘s tenancy was $275 per month, and that climbed to $400 over time. Throughout his occupancy, Klug paid for his utilities: heating fuel, hot water, and electricity.
During a period overlapping 1987 and 1988, Klug made some repairs on the premises, including carpentry and painting. For his work and materials, the trustees gave Klug a credit against his rent. He paid no cash on account of rent from August, 1987, to April, 1989, when, by his own calculation, his credit was used up.
Klug did not leave the cottage. He wrote to the plaintiffs, when he became aware that they were prospective purchasers of the property, about his attachment to the cottage and the land, which had deepened during his occupancy, urging that he be allowed to continue to rent the cottage or to buy it. The plaintiffs replied promptly that they had entered into a contract to buy the property on the basis of information from the owners that Klug was moving out of the cottage. They rejected Klug‘s various proposals, not least because they intended to make the cottage available to the plaintiff Ruettger-Cruciana‘s father who, so Ruettger-Cruciana wrote to Klug, “is on in years and declining in health, yet cherishes a measure of independence.” The cottage, she explained, was
Meanwhile, the conveyance of the property by the trustees to the plaintiffs had been consummated, a deed dated January 11, 1990, having been recorded in the North Middlesex Registry of Deeds on January 13, 1990. As a final act, the trustees sent a third notice to quit to Klug on January 12, 1990. Klug did not budge and, indeed, seemed to have lost a “belief” in paying rent to which he had earlier given sanctimonious voice;5 he made no payments for his occupancy of the cottage after January 30, 1990. Although the trustees had initiated two summary process actions while they still held title to the property, the new owners brought a fresh summary process action in their names on July 11, 1990.6 That action had been preceded by the new owners’ notice to quit dated May 25, 1990.
1. Threshold issues. a. Shortly after argument of the case, we learned through a motion filed by the plaintiffs for the return of certain personal property that Klug on October 6, 1992, vacated the cottage. A major aspect of the case, right to possession, therefore, became moot, although no party has filed a suggestion of mootness. As there is a monetary component to the judgment (the use and occupancy damages) which survives, we are obliged to consider the appeal.
In urging that Klug‘s notice of appeal was filed fatally out of time, the plaintiffs rely heavily on
Such is not the case here. No motion had been filed to alter the judgment, and the belated entry of the final judgment, in violation of the rules, was a purely mechanical failing by the court clerk. Klug‘s counsel could reasonably con-
2. Denial of Klug‘s motion to amend his counterclaim. In response to the summary process action by the plaintiffs, Klug filed a timely answer (see
When the matter was tried in the District Court on August 9, 1990, Klug testified that the cottage was drafty in the winter and adverted to other minor problems. Those were resolved against him by the District Court judge who found that the owners were entitled to possession and to recovery of $3,600 for use and occupancy; the judge found against Klug on his counterclaims, none of which had anything to do with defects in the premises or violations of the State Sanitary Code.
From that adverse decision, Klug timely claimed an appeal under
On August 29, 1990, the case was lodged in the Superior Court. The very day the case came on for trial, February 7, 1991, Klug moved to amend his complaint by adding three counterclaims: (1) that the cottage contained conditions dangerous to his health and safety; (2) that the landlord had thereby and by other unspecified “acts or omissions” deprived the tenant of quiet enjoyment in violation of
For the reason that a tenant at sufferance was not entitled to raise defenses and counterclaims authorized under
On the basis of the evidence, the judge found that such physical defects as existed were minor and did not materially affect the health, safety, or well-being of the occupant. “On the whole,” the judge wrote, “the premises are an attractive cottage in good condition located in a very appealing setting.” The plaintiffs, the judge decided, were entitled to immediate possession and damages of $10,500 for use and occupancy.12
In addition to having the attraction of logic, the judge‘s analysis came to grips with the paradox of a person claiming damages arising out of an occupancy that the property owner had at all times resisted as unlawful and was trying to end. That paradox, as the judge observed in his findings, was richly illustrated by Klug‘s claim to be reimbursed for his expenditures for heat, hot water, and utilities. “The claim is at least ironic, if not perverse,” the judge wrote. “The tenant at sufferance, holding over without right, claims that, because the landowners did not enter into a ‘written letting agreement’ with him, he is entitled not only to the availability of utilities (which might be conceded to him as his entitlement as a matter of health and safety regulation) but moreover, what he precisely claims, to be given them at the plaintiffs’ expense.” (Emphasis in original.) The judge also took note that the legislative history of
At several places in the first paragraph of § 8A, the language of the statute refers to “tenant or occupant” and says that a “tenant or occupant” may raise, by defense or counterclaim, “any claim against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy.”
Operationally, the statute would be defanged if a tenant at sufferance could not employ its machinery. All that a landlord would need do to deprive a tenant of the rights conferred by § 8A would be to dispatch a notice to quit and await the termination of the tenancy. Perhaps to avoid frustration of legislative purpose, statutes in that body of laws enacted to keep rental housing stock safe and sanitary have been applied when the status of the tenant was that of a tenant at sufferance. See Brown v. Guerrier, 390 Mass. 631,
If there is to be a remedy for the paradox identified by the trial judge in the application of
As to amendments of pleadings, “[t]he expressed tendency is in favor of allowing amendments, and a motion to amend should be allowed unless some good reason appears for denying it.” Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 289 (1977). Compare Murphy v. I.S.K.Con. of New England, Inc., 409 Mass. 842, 864 (1991); Bengar v. Clark Equip. Co., 24 Mass. App. Ct. 41, 42-43 (1987), S.C., 401 Mass. 554 (1988).
In this case, there were not merely good, but excellent, reasons for denying the defendant‘s motion to amend the answer and counterclaim. To begin with, the liberal attitude toward amendment of pleadings is tempered by the explicit goal stated in
Under
In his initial answer and throughout the bench trial in the District Court, Klug, who was represented by competent counsel, made three counterclaims: that the plaintiffs had engaged in unfair and deceptive practices in violation of
Certainly insofar as damages were claimed, the amended answer and counterclaim offered in the Superior Court raised wholly new issues. What we may refer to generically as the utilities claims were also wholly new, as were the claims of breach of warranty of habitability regarding an exterior bedroom wall, holes and cracks in plaster in the bedroom, and loose plaster in the living room ceiling. The motion to add the counterclaims was made on the day of the Superior Court trial, more than five months after Klug‘s claim of a trial in Superior Court.
In order for the property owners to respond, it would have been necessary, among other things, to have experts inspect the cottage, obtain estimates of what, if any, damages were incurred by Klug, and to inquire of suppliers of utilities about their written arrangements with Klug, which might constitute evidence of agreement by Klug to pay those charges, and to inquire whether his utility costs, added to his rent, placed the occupancy cost for the cottage within fair
Reasons justifying denial of a motion to amend include “undue delay, bad faith or dilatory motive,” undue prejudice to the opposing party, Castellucci v. United States Fid. & Guar. Co., 372 Mass. at 289-290, and imminence of trial or the introduction of entirely new theories of liability. Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547, 552 (1987). Hall v. Horizon House Microwave, Inc., 24 Mass. App. Ct. 84, 88-89 (1987). All those reasons for denying the motion to amend were present in varying degrees. Klug‘s bad faith and dilatory motives were particularly apparent. For months he had been effusive about his love for the cottage and about how much he had put into it to make it liveable; how much he wanted to continue to live there. Never had he complained about the condition of the cottage or the terms, which he tried so assiduously to extend, on which he had occupied it.
Throughout this case, Klug has attempted to manipulate the summary process procedure and has misused statutory and regulatory protections for tenants in rental housing. A freestanding cottage on a suburban estate, it may safely be assumed, was not the concern of the Legislature when it authorized certain private initiatives by which tenants might serve a public interest in maintaining housing stock in the State in a safe and sanitary condition. See Brown v. Guerrier, 390 Mass. at 634.
To effectuate the intent that summary process be expeditious and to deter dilatory manipulation of summary process procedure, we are of opinion that parties generally should be limited, upon appeal to the Superior Court under
3. Request of the plaintiffs for legal costs and fees. On the ground that Klug‘s appeal was patently frivolous, the plaintiffs have asked for an award under
Although the appeal is not frivolous, Klug‘s campaign, aided by counsel, represents an unfortunate distortion of laws promulgated primarily to govern conventional apartment tenancies. If it was not obvious to Klug (although the record suggests it was), his lawyers (there were four, of whom the most unrestrained in manipulating the statutory scheme was the lawyer who handled the case in the Superior Court and is the primary lawyer on appeal) must surely have appreciated that the owner of a residential property such as this one was entitled to end an informal arrangement for the occupation of an outbuilding, and that the case would end in a judgment so providing. We consider it fair to ask whether assisting a
The judgment is affirmed. We affirm the entire judgment, including that portion which relates to possession, because we have received no notification of his departure from Klug and we are, therefore, not certain that he has given up his claims against the property.
So ordered.
BROWN, J. (concurring). I am repeating myself, but “there must be ethical as well as professional limits on how far a lawyer should go in attempting to [press] a hopeless [case]. This time it appears that counsel has gone too far” (citation omitted). Edinburg v. Massachusetts Mut. Life Ins. Co., 22 Mass. App. Ct. 923, 925-926 (1986), (Brown, J., concurring). The majority is too kind in its characterization of the conduct of the tenant‘s counsel as “overweening.” I would use more blunt terms: unprofessional and unethical.1
I fail to see how any truly professional and ethical lawyer could, in good conscience, have pressed this case through two trial courts and one appellate forum. Klug‘s Superior Court counsel‘s “conduct constituted both an affront to the court‘s dignity and a perversion of the court‘s purposes as an institution for just resolution of legitimate disputes.” Miaskiewicz v. Commonwealth, 380 Mass. 153, 158 (1980). See S.J.C. Rule 3:07, Canon 1, DR 1-102(A)(5), 382 Mass. 770 (1981). Not to condemn this sort of conduct, as a consequence of which “the very temple of justice has been defiled,” Universal Oil Prod. Co. v. Root Ref. Co., 328 U.S.
In my view, the imposition of sanctions appears to be appropriate here for counsel‘s filing of smokescreen counterclaims and for counsel‘s apparent acquiescence in the filing of bogus indigency affidavits.2 See S.J.C. Rule 3:07, Canon 1, DR 7-102(A)(2), 382 Mass. 785 (1981). See also
The absurd notion of a lawyer as a hired gun, who will do anything a client requests, has never had a place in our profession and must not be tolerated. See S.J.C. Rule 3:07, Canon 7, DR 7-102(A)(1) & (7), 382 Mass. 785 (1981).
Cases such as this one make manifest the need for greater emphasis on attorneys’ professional responsibility and for a more certain threat of sanctions for improper conduct, such as is embodied in