Opinion
20-P-139
11-01-2021
3 MAPLE HAVERHILL LLC v. MELISSA BARBER.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Melissa Barber (tenant), appeals from a Housing Court order allowing her a stay of execution in a summary process action. We affirm the order. Background. On March 18, 2019, the plaintiff, 3 Maple Haverhill, LLC (landlord), filed a summary process complaint against the tenant. On April 4, 2019, the parties executed an agreement for judgment agreeing that the tenant owed $2,015 in rent, and that judgment was to enter that same day for the landlord, with execution to issue "forthwith." However, that agreement also provided that the landlord would not proceed with serving an execution and forty-eight hours' notice of eviction if the tenant complied with certain conditions, including payment of $1,165 by that same day, payment of $850 by April 15, and removal of an unregistered motor vehicle by April 5. The agreement further provided that "[i]f there is compliance with this agreement, then this case shall be dismissed on October 4, 2019 and the tenancy shall be reinstated on that date." On April 11, 2019, the landlord obtained a judgment and execution against the tenant. On May 10, 2019, the landlord served the tenant with a forty-eight hour notice, warning that she would be evicted on May 17.
The execution expired after three months. See G. L. c. 235, § 23. See also Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 859 (2019) (Appendix).
On May 14, 2019, the tenant moved to stay the execution indefinitely. After a hearing, a judge stayed the execution on conditions, including that the tenant pay to the landlord $190 by May 17, and "resolve [the] condition of" one of her vehicles by May 23. On May 24, the landlord again served the tenant with a forty-eight hour notice, warning that she would be evicted on May 30.
On May 28, 2019, the tenant again moved to stay the execution indefinitely. After a hearing, a judge issued an order on May 29 (May 29 order), staying the execution through June 30 on the conditions that the tenant (1) pay $190 to the landlord by May 31, (2) pay to the landlord a $500 cancellation fee if the landlord was charged one, and (3) remove or register her Nissan Rogue vehicle by June 14. The judge also assessed $400 in attorney's fees to be added to the judgment against the tenant and indicated that "[n]o further stays of execution shall be granted."
On June 6, 2019, the tenant filed a notice of appeal from the May 29 order. That same day, the landlord again served the tenant with a forty-eight hour notice, warning that she would be evicted on June 18.
On June 17, 2019, the tenant moved in this court for a stay of execution, and an order issued that same day staying the levy of execution pending further order of this court. Notwithstanding that order, on June 25, the landlord again served the tenant with a forty-eight hour notice, warning that she would be evicted on June 28. On July 1, a single justice of this court continued the stay of execution, cautioning the landlord "to comply with this court's stay order."
Nevertheless, on March 4, 2020, the landlord moved in the Housing Court to issue an execution. A judge denied the motion, referencing the single justice's order. See Mass. R. Civ. P. 62(d), 365 Mass. 829 (1974) ("the taking of an appeal from a judgment shall stay execution upon the judgment during the pendency of the appeal"). See also Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 858 (2019) (Appendix).
We glean this information from the Housing Court docket. We may rely on that docket notwithstanding that it is not in the parties' record appendices. See Mass. R. A. P. 18 (a) (1) (D), as appearing in 481 Mass. 1637 (2019). See also Commonwealth v. Morse, 50 Mass.App.Ct. 582, 584 n.3 (2000).
Discussion.
The tenant appeals from the May 29 order allowing her a stay of execution of the judgment of eviction.
Yet she has not explained to us how the order harmed her or why its issuance was an error or an abuse of discretion. That order was plainly within the power of the Housing Court. G. L. c. 239, §§ 9-10 (after hearing, judge may grant stay of judgment and execution, and may prescribe terms and provisions). See Adjartey, 481 Mass. at 860. Finding no error or abuse of discretion, we affirm.
Because the judge allowed the tenant's motion for a stay, it is somewhat unclear why she appealed from the order. It may be that she understood the judge's use of the word "stay" to pertain to whether she could "stay" in the apartment. In this context, a "stay" is a legal term that means "[t]he postponement or halting of [an eviction] proceeding." Black's Law Dictionary 1709 (11th ed. 2019). See generally Adjartey, 481 Mass. at 835837, 858 (discussing stays of execution upon judgment of possession where tenant files notice of appeal).
The landlord raises various arguments as to why part of the May 29 order was improper. We need not reach those issues because the landlord did not appeal from that order.
Order dated May 29, 2019, affirmed.
The panelists are listed in order of seniority.