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SJC-12754

            YOUGHAL, LLC   vs.   AMANDA ENTWISTLE & another.1


                            March 23, 2020.


Summary Process, Appeal, Notice to quit. Practice, Civil,
     Summary process, Appeal, Bond. Uniform Summary Process
     Rules. Landlord and Tenant, Termination of tenancy, Quiet
     enjoyment. Consumer Protection Act, Landlord and tenant,
     Unfair act or practice.


     The defendant tenants appeal from a Housing Court judgment
for the plaintiff landlord on its summary process complaint, the
denial of relief on certain of their counterclaims, and from the
award of nominal damages on other counterclaims. The landlord
appeals from the denial of its motion to dismiss the tenants'
appeal. The Appeals Court dismissed the tenants' appeal on
timeliness ground, and we granted further appellate review. We
conclude that the tenants' appeal is timely, and that the
landlord's summary process complaint must be dismissed because
the summons and complaint were served within fourteen days of
the tenants' receipt of the notice to quit. We affirm the
judgment with respect to the tenants' counterclaims.

     Background. The landlord commenced a summary process
action against the tenants seeking to recover possession of the
subject premises and damages for unpaid rent. The tenants
responded by claiming improper termination of the tenancy, and
counterclaiming for breach of the warranty of habitability, in
violation of G. L. c. 239, § 8A; violation of G. L. c. 186, § 14
(utilities, services, and quiet enjoyment); G. L. c. 239, § 2A
(reprisal for reporting violations of law); and G. L. c. 93A

    1   Angela Entwistle.
                                                                   2


(consumer protection).2 After a bench trial, on November 2,
2017, the judge ordered judgment for the tenants on two
counterclaims, and awarded nominal damages. With respect to the
landlord's summary process complaint, she ordered judgment for
the tenants if they paid $6,225 to the landlord within ten days
and filed a receipt of the payment with the court;3 otherwise,
the judge ordered judgment for the landlord. The tenants did
not make the payment, and final judgment entered on November 15,
2017.

     On November 13, 2017, before the entry of final judgment,
the tenants filed a motion seeking a new trial or to alter or
amend the judgment. See Mass. R. Civ. P. 59, 365 Mass. 827
(1974). The judge denied the motion on November 21, 2017; the
tenants filed a notice of appeal within ten days after the
denial of that motion. In addition, the judge denied the
landlord's motion to dismiss the appeal and request for an
execution. Over the landlord's opposition, an appeal bond was
set.

     On the parties' cross appeals, the Appeals Court dismissed
the tenants' appeal on timeliness ground. We granted further
appellate review to consider whether a motion, pursuant to Mass.
R. Civ. P. 59, served before the entry of final judgment, is
timely for purposes of Mass. R. App. P. 4 (a), as amended, 464
Mass. 1601 (2013). We conclude that it is. We also conclude
that the summary process complaint must be dismissed because it
was served within the fourteen-day period after receipt of the
notice to quit. We find no error in the Housing Court judgment
with respect to the counterclaims, and affirm that portion of
the judgment.

     Discussion. On review of the Housing Court judge's
decision, "we accept her findings of fact unless they are
clearly erroneous. The judge's legal conclusions are reviewed
de novo" (citations omitted). Anastos v. Sable, 443 Mass. 146,
149 (2004).

     1. Propriety of tenants' appeal. Although the landlord
challenged the propriety of the tenants' appeal on several

     2 A counterclaim asserting mishandling of a security deposit
was withdrawn.

     3 This amount reflects unpaid rent of $6,250 less nominal
damages of twenty-five dollars awarded to the tenants on their
counterclaims.
                                                                  3


grounds, the Appeals Court dismissed the appeal on a different
ground.4 The Appeals Court concluded that the tenants' appeal
was untimely and must be dismissed because the notice of appeal
was filed more than ten days after the entry of . . . judgment."5
G. L. c. 239, § 5. We disagree: the appellate clock was
stopped by the tenants' timely posttrial motion. Under
Mass. R. A. P. 4 (a):

     "If a timely motion under the Massachusetts Rules of Civil
     Procedure is filed in the lower court by any party:

     ". . .

     "(3) to alter or amend a judgment under Rule 59 or for
     relief from judgment under Rule 60, however titled, if
     either motion is served within ten days after entry of
     judgment; or

     "(4) under Rule 59 for a new trial,

     4 At oral argument, landlord's argument rested primarily on
the claim that the tenants' notice of appeal was inadequate
because it did not specifically reference the final judgment.
In the Housing Court, however, the landlord sought dismissal of
the appeal on a different ground, i.e., for "failure to give
bond or request a waiver of bond within the time allowed for
filing notice of appeal and filing an appeal bond," citing G. L.
c. 239, § 5. On appeal, the landlord pressed the same claim,
arguing that the motion for a new trial did not expand the
period for filing a notice of appeal provided in G. L. c. 239,
§ 5, pursuant to Mass. R. A. P. 4 or otherwise. It also claimed
that the tenants' notice of appeal was inadequate because it did
not request the clerk to schedule a hearing to approve an appeal
bond; was not filed until December 1, 2017, sixteen days after
the entry of judgment; and did not use the word "judgment." As
the landlord acknowledged in its brief, however, the Housing
Court judge treated the notice of appeal as an appeal from the
final judgment.

     5 Pursuant to Mass. R. A. P. 4 (a), a notice of appeal in a
civil case must be filed within "thirty days of the date of the
entry of the judgment appealed from," unless "otherwise provided
by statute." In this case, a ten-day period is provided by
G. L. c. 239, § 5 (a) ("If either party appeals from a judgment
of . . . a housing court . . . in an action under this chapter .
. . that party shall file a notice of appeal with the court
within [ten] days after the entry of judgment").
                                                                  4



    "the time for appeal for all parties shall run from the
    entry of the order denying a new trial or granting or
    denying any other such motion. A notice of appeal filed
    before the disposition of any of the above motions shall
    have no effect. . . ."

Although the tenants filed their notice of appeal more than ten
days after judgment entered, on November 15, 2017, it was filed
within ten days of the denial of their motion under Mass. R.
Civ. P. 59 for a new trial or to alter or amend the judgment.
The rule 59 motion was a "timely motion" for purposes of Mass.
R. A. P. 4 (a), even though it was filed before the entry of
judgment.

     Rule 59 requires only that "a motion for a new trial [or to
alter or amend the judgment] shall be served not later than
[ten] days after the entry of judgment" (emphasis added). Mass.
R. Civ. P. 59 (b), (e). Nothing in the rule precludes a
litigant from filing its motion before judgment actually has
entered, and nothing in the rule renders such a motion
"untimely." See Reporters' Notes (1973) to Rule 59, Mass. Ann.
Laws Court Rules, Rules of Civil Procedure, at 1116 (LexisNexis
2015) ("The wording of 59 [b], however, allows a motion to be
made both before or after the entry of judgment"). Contrast
Mass. R. A. P. 4 (a) (notice of appeal filed before disposition
of enumerated timely-filed motions without effect).

     Manzaro v. McCann, 401 Mass. 880, 881-882 & n.2 (1988),
does not require a different result. Unlike this case, Manzaro
did not involve an early-filed rule 59 motion. In that context,
our observation that the "rule 59 (e) motion was filed on
September 12, 1986, within ten days from judgment as directed by
that rule," recognizes only that the rule 59 (e) motion was not
late and, therefore, that the time for appeal did not begin to
run until the motion was decided. Manzaro, 401 Mass. at 882.
To the extent Empire Loan of Stoughton v. Stanley Convergent
Sec. Solutions, Inc., 94 Mass. App. Ct. 709 (2019), suggests
that a motion for reconsideration, to alter or amend a judgment,
or for relief from judgment is not timely if it is served before
judgment enters, it is overruled.

     The landlord's claims concerning the procedural propriety
of the appeal are equally without merit. The landlord suggests
that Mass. R. A. P. 4 does not toll the time for filing a notice
of appeal prescribed in G. L. c. 239, § 5. However, although
G. L. c. 239, § 5, requires a party appealing from a summary
                                                                  5


process judgment to "file a notice of appeal with the court
within [ten] days after the entry of the judgment," a timely
motion pursuant to Mass. R. Civ. P. 59 to alter or amend a
judgment suspends the finality of the judgment. See Manzaro,
401 Mass. at 882. The statutory period commences anew when the
rule 59 motion is disposed, i.e., when the entry of judgment is
effective.

     With respect to the landlord's claim that, pursuant to Rule
12 of the Uniform Summary Process Rules, the tenants' notice of
appeal was ineffective because it failed to include a request to
set an appeal bond, the tenants did not request waiver of the
bond. We recognize that rule 12 provides:

    "Upon receipt of notice of appeal and request for setting
    of bond within the time prescribed by G. L. c. 239, § 5,
    the clerk shall forthwith schedule a hearing before the
    court on whether an appeal bond shall be required and on
    the form and amount of such appeal bond. The hearing shall
    be held within three business days of said receipt."

As stated, however, G. L. c. 239, § 5, specifies the timing for
filing a notice of appeal; it does not address the mechanism for
setting an appeal bond. In that context, rule 12 is best
understood to require that, if both a notice of appeal and a
request for setting of a bond are filed within the statutory
period, a hearing will be held within three business days. The
absence of a request for setting of bond, however, does not
render an otherwise timely notice of appeal defective.

     Finally, with respect to the landlord's claim that the
tenants' notice of appeal was inadequate to claim an appeal from
the final judgment, we acknowledge that the notice of appeal
stated that the tenants were "aggrieved by the Findings of Fact,
Rulings of Law, Decision and the denial of their Motion for New
Trial or to Alter or Amend Judgment." In the circumstances
here, we conclude the notice was adequate, particularly because
the appeal permitted by G. L. c. 239, § 5, is an appeal from a
final judgment.

     Having concluded that the appeal properly is before us, we
proceed to address the claims raised by the tenants.

     2. Termination of the tenancy. As of June 1, 2017, the
tenants, who occupied the premises pursuant to a written lease,
had an unpaid rent balance of $1,250. On June 6, 2017, the
landlord's agent sought to terminate the tenancy by delivering
                                                               6


to the tenants a notice to quit the premises in fourteen days.
See G. L. c. 186, § 11. See New Bedford Housing Auth. v. Olan,
435 Mass. 364, 373 (2001) ("where a statute requires written
notice to terminate a tenancy, that notice must be sent before
an action for summary process may be commenced"). The agent
taped the notice to the door of the premises. One tenant
testified that she was not present when the notice was
delivered, and that she did not receive it until June 7, 2017.
The tenants claim that their tenancy therefore remained
unchanged through June 21, 2017, the fourteenth day after actual
receipt of the notice to quit. See Johnson v. Stewart, 11 Gray
181, 183 (1858) ("When an act is to be done within a given
number of days from the date or the day of a date of a written
instrument, the day of the date is to be excluded"). See also
King v. G & M Realty Corp., 373 Mass. 658, 663 (1977). Because
the summary process summons and complaint were served on June
21, 2017, i.e., within the fourteen-day period after "actual
receipt" of the notice, the tenants contend the summary process
complaint should have been dismissed. We agree.6

     General Laws c. 186, § 11, provides that a fourteen day
notice to quit be "given in writing to the tenant" to
"determine" the lease. See Adjartey v. Central Div. of the
Housing Court Dep't, 481 Mass. 830, 851 (2019). "Once the
deadline stated in the notice to quit has passed, the landlord
may serve his or her tenant" with a summary process summons and
complaint to recover possession of the premises. Id. at 852,
860. See Hodgkins v. Price, 137 Mass. 13, 18 (1884). See also
Rule 2(b) of the Uniform Summary Process Rules (1993). It is
the landlord's burden to "show that [it] gave a notice which
complied with the statute. The statute does not proscribe how
notice is to be given." See Ryan v. Sylvester, 358 Mass. 18, 19
(1970). It is nonetheless evident that a notice taped to a door
is not "given to the tenant," until the tenant receives actual
or constructive notice of it. See id., citing cases. In this
case, the evidence at trial did not establish delivery of the
notice until June 7, 2017, when one tenant testified she
received it. Because the summary process proceeding was
commenced before the full fourteen-day deadline had come and
gone, judgment must enter for the tenants.




    6  The tenants filed motions to dismiss or for a required
finding, based in part on the fact that the summary process
summons and complaint were served within the fourteen-day period
after receipt of the notice to quit.
                                                               7


     3. Counterclaims. Having concluded that the summary
process complaint must be dismissed, we turn now to the tenants'
counterclaims.7

     a. Covenant of quiet enjoyment. The tenants claim that
the judge erred in denying relief on their counterclaim for
breach of the covenant of quiet enjoyment. See G. L. c. 186,
§ 14. That statute provides that "[a]ny lessor or landlord of
any building or part thereof occupied for dwelling purposes
. . . who directly or indirectly interferes with the quiet
enjoyment of any residential premises by the occupant . . .
shall . . . be liable for actual and consequential damages, or
three month's rent, whichever is greater, and the costs of the
action, including a reasonable attorney's fee . . . ." Id. The
covenant protects a tenant from "serious interference with his
tenancy -- acts or omissions that impair the character and value
of the leasehold." (citations omitted). Doe v. New Bedford
Housing Auth., 417 Mass. 273, 285 (1994).

     The tenants contend that their right to quiet enjoyment was
violated in myriad ways. They allege that they were responsible
for payment of electricity used in common areas; that they were
responsible for their own heat and hot water without a written
agreement to do so; and that certain conditions associated with
the premises, including a purported lack of a secondary means of
egress and issues associated with smoke and carbon dioxide
detectors, all interfered with their quiet enjoyment of the
premises. After a two-day trial, however, the judge determined
that the claims were without merit. Among other things, the
judge concluded that there was no credible evidence that
utilities were not furnished to the tenants or that they paid
for common area electricity. The judge also found, however,
that the tenants paid for heat and hot water at the premises
without a written agreement to do so, as required by the State
sanitary code, 940 Code Mass. Reg. § 3.17. See Poncz v. Loftin,
34 Mass. App. Ct. 909, 910-911 (1993). Nonetheless, the judge
concluded that the lack of a written agreement regarding
utilities did not interfere with the tenants' quiet enjoyment of
the premises. There was no error in the judge's conclusion that

    7  In the brief they filed in this court, the tenants raised
no meaningful argument with respect to the Housing Court judge's
denial of relief on their counterclaim for breach of the
warranty of habitability. See G. L. c. 239, § 8A. The judge
concluded that the tenants were behind in their rental payments
before the landlord was on notice of claimed defects in the
premises, and once it was on notice, it promply made repairs.
                                                                  8


there had been no breach of the covenant of quiet enjoyment, or
in her declining to award damages.

     b. Unfair or deceptive business practices. Although the
judge concluded that the lack of a written agreement concerning
payment of utilities did not violate the covenant of quiet
enjoyment, she did find that the omission violated the State
sanitary code, see 940 Code Mass. Regs. § 3.17, and, therefore,
G. L. c. 93A. See Poncz, 34 Mass. App. Ct. at 910-911. For
this violation, the judge awarded nominal damages and reasonable
attorney's fees, giving the tenants the option to file a motion
for attorney's fees before final judgment entered. On appeal,
the tenants claim a variety of other violations of the same
regulation, which they likewise claim violate G. L. c. 93A. As
best we can discern, however, each of these bare allegations
depends on a view of the facts different from those found by the
judge, after trial. We decline to consider them further.

     c. Retaliation. Finally, we conclude that the Housing
Court judge correctly rejected the tenants' claim that the
landlord's summary process action was brought in retaliation for
their complaints about the condition of the premises. See G. L.
c. 186, § 18; G. L. c. 239, § 2A. By statute, if a landlord
commences an action within six months of such a complaint, a
presumption of retaliation arises. See G. L. c. 186, § 18 ("The
receipt of any notice of termination of tenancy, except for
nonpayment of rent, . . . within six months after the tenant"
exercises such rights "create[s] a rebuttable presumption that
such notice or other action is a reprisal against the tenant for
engaging in such activities"). For purposes of G. L. c. 239,
§ 2A, a rebuttable presumption arises, whether or not the action
was for nonpayment of rent. See South Boston Elderly
Residences, Inc. v. Moynihan, 91 Mass. App. Ct. 455, 468-469
(2015) ("For the landlord to overcome the statutory presumption
of relation . . . there still would need to be clear and
convincing evidence that the landlord would have sent the notice
to quit in the same manner and at the same time").

     In this case, the tenants had a balance of unpaid rent of
$1,250 at the time the summary process proceeding commenced.
Under the circumstances, the judge correctly concluded that the
tenants were not entitled to a presumption of retaliation under
G. L. c. 186, § 18. With respect to G. L. c. 239, § 2A, the
judge determined that the landlord overcame the presumption by
showing that it repeatedly had commenced summary process actions
against one of the tenants when she previously had fallen behind
in her rent. In the circumstances, we conclude that the judge
                                                                   9


did not err in denying relief on the tenants' counterclaim for
retaliation.

     Conclusion. For the reasons stated, the landlord's summary
process complaint must be dismissed, because the summary process
summons and complaint were served before the full fourteen-day
period provided in the notice to quit had elapsed. The judgment
with respect to the tenants' counterclaims is affirmed. The
case is remanded to the Housing Court for further proceedings
consistent with this opinion.

                                   So ordered.


     Francis B. Fennessey for the plaintiff.
     Alan H. Aaron for the defendants.
     H. Esme Caramello, for City Life/Vida Urbana & another,
amici curiae, submitted a brief.
     Joseph N. Schneiderman, for Chelsea Collaborative, amicus
curiae, submitted a brief.
