Opinion
No. 93-01018A
September 30, 2002
MEMORANDUM OF DECISION UPON SUMMARY PROCESS APPEAL
PRIOR PROCEEDINGS
The instant dispute has its genesis in the efforts of the deceased, Richard Varney, to provide for the housing and support, after his passing, of the defendant who had served as his caretaker during his declining years. The course of the dispute has run through a declaratory judgment action in the Superior Court, an appeal to the Appeals Court, a summary process suit in the District Court and, finally, the summary process appeal now before the Superior Court. Each stop along the way has contributed to the result which will be reached infra, and a recitation, in the form of a chronology of what has gone before, will, we hope, assist the reader in understanding what is to come. That procedural chronology follows.
A. The Summary Process Matter
1. On March 23, 1992, Richard Varney, who had shared his home with defendant (hereinafter, "Rosemarie") since October 2, 1989, pursuant to a "contract of employment," passed away.
2. On August 3, 1992, the corporate plaintiff (hereinafter "Varney Brothers") filed a summary process summons and complaint in the Milford District Court seeking the eviction of Rosemarie from the residence she had shared with Richard prior to his demise. The residence was owned by Varney Brothers.
3. On April 8, 1993, the District Court (Sprague, J.), entered judgment for plaintiff for possession, the operative effect of which was to require Rosemarie to vacate the home.
4. On April 14, 1993, Rosemarie filed a notice of appeal from the judgment of eviction and, on April 23, 1993, a request for removal to the Worcester Superior Court. The removal was effected on April 29, 1993 and the appeal was docketed under Superior Court No. 93-01018. That appeal is the matter now presented to this Court.
The delay in bringing the summary process appeal to trial in the Superior Court was due, in large measure, to the Declaratory Judgment action which occupied the parties and which is summarized infra. For example, on March 15, 1996, the trial proceedings upon the summary process appeal were stayed pending appellate review in the Appeals Court of the Superior Court's disposition of the Declaratory Judgment complaint.
B. The Declaratory Judgment Matter
5. On June 1, 1992, and two months before it had sought District Court summary process relief, Varney Brothers brought suit against Rosemarie in the Worcester Superior Court (No. 92-01611) seeking a declaration with respect to the legal efficacy of the two "agreements" by which Richard Varney sought to provide compensation and support for Rosemarie.
6. On August 22, 1994, the Declaratory Judgment complaint was tried before the Superior Court (Rup, J.) and, on June 7, 1995, the Court's Findings of Fact, Rulings of Law and Order for Judgment were entered. Judgment followed, on June 12, 1995, declaring that both agreements were "null and void and of no force and effect." Judge Rup's decision also took note of the pending summary process appeal that sought, inter alia, to compel Rosemarie to pay to Varney Brothers the fair market value of her use and occupancy of the home she had occupied before and after Richard Varney's death and related "expenses" incurred by Varney Brothers. The judge determined that, insofar as the issue of the "fair rental value" of the residence during Rosemarie's occupancy was sub judice in the summary process action, addressing the issue in the declaratory judgment would not be "appropriate." Hence, Judge Rup ordered dismissed that portion of the declaratory judgment complaint that sought monetary recovery from Rosemarie for rent.
7. On June 22, 1995 and June 26, 1995, respectively, the parties filed notices of appeal (Rosemarie) and cross appeal (Varney Brothers).
8. On December 23, 1998, the Appeals Court issued its opinion upon the appeals from the declaratory judgment. See Varney Brothers Sand Gravel, Inc. v. Champagne, 46 Mass. App. Ct. 54 (1998). That opinion affirmed Judge Rup's determination that the first agreement was null and void, but modified her determination that the second agreement was also null and void by declaring that "the second agreement is an enforceable contract with respect to its weekly stipend and medical insurance provisions." Id. at 63. Judgment after rescript was entered to that effect on February 5, 1999.
The Appeals Court's opinion and judgment left undisturbed Judge Rup's declaratory judgment to the effect that, insofar as the agreements sought to create a life estate in Rosemarie, they were null and void.
9. The summary process appeal was bench-tried by this Court on January 22, 2002. Counsel offered post-trial written submissions, the last of which was filed on February 8, 2002, and the matter will now be resolved.
THE EVIDENCE
This Court will rely upon the recitation of facts found by Judge Rup in the trial of the declaratory judgment complaint and upon the facts recited by the Appeals Court in its determination of the appeal therefrom.
The only additional facts pertinent to the resolution of the instant summary process appeal are as follows:
1. On March 31, 1992, Varney Brothers delivered to Rosemarie a notice to quit the residence before May 1, 1992. (Exh 4)
2. Rosemarie vacated the residence in June, 1999. (Exh 6)
No testimony was received at the trial, the parties instead relying on the facts reflected in the opinions of Judge Rup and the Appeals Court and the documentary exhibits offered at trial. See Agreed Statement of Facts filed by the parties and received as Trial Exhibit 13.
DISCUSSION
In view of Rosemarie's departure from the premises in June, 1999, we need no longer be concerned with the eviction aspect of the summary process complaint. What remains is the question of Varney Brothers' entitlement to use and occupancy damages, that is to say utility costs and rent, for the time period bounded by eviction (May, 1992) and departure (June, 1999).
A. The Motion to Dismiss
At the close of the trial proceedings, and on numerous occasions prior to the trial, defendant advanced the argument that, insofar as Judge Rup had "dismissed" Varney Brothers' claim for use and occupancy damages in the Declaratory Judgment action and the Appeals Court had affirmed,inter alia, that portion of her decision, then Varney Brothers was barred from presenting the same claim in the instant summary process suit. That argument is without merit because, the principle of issue preclusion/collateral estoppel, upon which defendant relies, has no barring effect where, as here, the triggering determination was not "on the merits." Falvizio v. US Suzuki Motor Corp., 362 Mass. 873 (1972).
At bar, Judge Rup employed the word "dismissed" in order to convey her refusal to address the use and occupancy claim in the Declaratory Judgment case before her. Having recognized that the parties had drawn swords over that claim in the then pending summary process action and that little attention had been paid to the claim by the parties in the declaratory judgment contest, she elected not to determine the issue and chose the "dismissed" language to convey her forbearance. Had she selected some other expression — as, for instance, "dismissed without prejudice," or "dismissed in deference to the summary process litigation", her meaning would have been unmistakable. Nevertheless, there can be no doubt, from her memorandum of decision — wherein she expressed that, "[b]ecause that matter is the subject of the corporation's complaint for summary process, it would not be appropriate to grant such relief in this [declaratory judgment] case" and wherein she observed that "[the summary process] matter remained pending at the time of this trial" — that her disposition to reserve the issue for another day is beyond challenge. She certainly did not intend to suggest that she had found on the merits for Rosemarie, and to read her use of the word "dismissed" as a disposition on the merits is, under the circumstances, a plain perversion of her "Order For Judgment."
Defendant can gain no solace from either the Appeals Court's treatment of Judge Rup's decision or from the Superior Court Clerk's entry of judgment after rescript. The former characterized Judge Rup as focusing only upon the validity of the two agreements and its opinion never alluded to the use and occupancy claim. The latter was merely a ministerial mirror of Judge Rup's choice of the word "dismissed" to describe her determination to leave the use and occupancy claim to the summary process test. Because the Appeals Court did not review the substance of the use and occupancy claim, there was no occasion for the Clerk to have done other than to re-assert Judge Rup's pre-appeal entry.
Defendant's motion to dismiss upon collateral estoppel/issue preclusion grounds is wholly without merit, see Custody of Minor, 375 Mass. 733, 741-742 (1978), and will be DENIED
B. The Merits of the Claim
Varney Brothers argues that the Appeals Court has determined that the agreements by which Richard Varney sought to compensate Rosemarie for her services to him were null and void except that the second agreement would be deemed "a valid contract . . . limited to the weekly stipend and insurance benefits promised [Rosemarie] and does not extend to the life estate in the [residence]." Varney Brothers Sand Gravel, Inc. v.Champagne, 46 Mass. App. Ct. 54, 63 (1998) (emphasis added). The argument concludes that, therefore, Rosemarie has no underpinnings for her contention that her occupancy was permitted by the second agreement's grant of a life estate to her. That is to say, Varney Brothers insists that the fall of the life estate illegitimized the occupancy which had been founded on the life estate.
Rosemarie responds, citing G.L. c. 186, that her occupancy had been based upon an "explicit Employment Agreement," that she had "a right to remain on said premises until such time that the validity of the agreement is judicially concluded" and that she was not, therefore, a "tenant at sufferance . . . obligated to pay for use and occupancy retroactively." See Rosemarie's "Requested Conclusions [of Law]" filed post-trial.
Varney Brothers has the better of the contest. When the Appeals Court rejected Rosemarie's suggestion that her occupancy was countenanced by a life estate, the Appeals Court implicitly characterized her as a tenant at sufferance from the May 1, 1992, service upon her of Varney Brothers' notice to quit through her June, 1999, vacating of the premises. That Rosemarie may have thought, in good faith, that she had a life estate or other claim of right to occupy will not alter the reality, fairly inferable from the Appeal's Court's opinion, that her occupation was as a tenant at sufferance. See In re Cumberland Farms, Inc., 78 F.3d 10 (1st Cir. 1994) (affirming lower court's ruling that term "tenant at sufferance" is not limited to those who lack a claim of right).
As a tenant at sufferance, Rosemarie is liable for the current fair market rent for the period of her occupancy. G.L. c. 186, § 3;Kobayaski v. Orion Ventures, Inc., 42 Mass. App. Ct. 492, rev. den. 425 Mass. 1102 (1997). Her honest reliance, later shown to be unwarranted, upon the agreement purporting to convey to her a life estate will not rescue her from her obligation, as a tenant at sufferance, to "pay rent therefor for such time as [she] . . . may occupy or detain [the premises . . ." G.L. c. 186, § 3. Similarly, Rosemarie is liable for the current fair value of the utilities and services provided to her throughout her tenancy at sufferance. Dale v. H.B. Smith Co., Inc., 136 F.3d 843 (1st Cir. 1998); Ghoti Estates v. Fredas Capri Restaurant, 332 Mass. 17 (1955).
What remains is, in essence, an assessment of damages. Varney Brothers has offered into evidence its calculations as to the current fair rental value and utilities and expense charges, from May, 1992, through June, 1999, pertaining to Rosemarie's use and occupancy of the residence. See Trial Exhibit 6. Rosemarie has not, at trial or in her post-trial filings, challenged the accuracy of those calculations. In fact, Rosemarie has stipulated that "the use and occupancy charges and expenses set forth in Exhibit 6 are fair and reasonable . . ." See Exhibit 13. This Court will, therefore, find, consistent with Trial Exhibit 6, that Rosemarie is liable for $67,959.41 in use and occupancy charges as a consequence of her tenancy at sufferance.
CONCLUSION
For the reasons aforestated, judgment shall enter for plaintiff in the amount of $67,959.41 plus statutory interest.
________________________ Daniel F. Toomey Justice of the Superior Court
DATED: September 30 , 2002