Home SALLY KENNEDY vs. GLEASON BROTHERS, INC. (and a companion case). [Note 1]

14 Mass. App. Ct. 367

April 13, 1982 - September 7, 1982

Hampshire County


Where tenants who were being evicted pursuant to G. L. c. 239, Section 3, refused offers by deputy sheriffs to have their possessions placed and left on the sidewalk outside their apartments, failure by the mover to place the property on the sidewalk before removing it for storage did not deprive the mover of its lien under G. L. c. 239, Section 4. [368-370]

CIVIL ACTIONS commenced in the Superior Court Department on December 20, 1979, and February 14, 1980, respectively.

The cases were heard by Adams, J., on motions for summary judgment.

James A. Bisceglia for the plaintiffs.

Richard M. Howland for the defendant.

ROSE, J. The plaintiffs brought separate suits in the Superior Court seeking damages from the defendant for violation of G. L. c. 239, Section 4, and for conversion. After the cases were consolidated, the parties submitted a statement of agreed facts. Following the plaintiffs' motion for summary judgment, the court ordered that judgment enter for the defendant in both cases. See Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). The plaintiffs appeal from the judgments.

The essential facts are as follows. The plaintiffs Kennedy and Liebling were tenants on whom separate summary process executions were served pursuant to G. L. c. 239, Section 3. Deputy sheriffs engaged the defendant to remove the

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plaintiffs' personal property from the apartments of their landlord. In each instance, the defendant packed the property while inside the apartments, and, except for a few boxes of Kennedy's possessions which were initially placed on the sidewalk outside the apartment, all the property was loaded directly into a moving truck. Each plaintiff was present at the time her property was removed by the defendant, and each refused offers by the deputy sheriffs to have her possessions placed and left on the sidewalk outside her apartment. After removal, the property of both plaintiffs was put in storage at the defendant's warehouse.

The plaintiffs each received bills from the defendant which included charges for packing the property, loading it into the moving truck, travel to the warehouse, unloading (Kennedy only), "warehouse in" at the storage facility and monthly storage. Contending that the charges made by the defendant covered services outside the scope of the lien authorized by G. L. c. 239, Section 4, the plaintiffs refused to pay the full amounts billed by the defendant and, instead, each tendered a check to the defendant which she claimed was sufficient to satisfy all valid outstanding charges. Essentially, the plaintiffs deducted from the amounts charged what they estimated would be the reasonable expenses incurred by the defendant in packing their possessions while inside the apartments and removing the property to the public sidewalk outside the apartments. The defendant rejected the tenders made by the plaintiffs and refused to release their property. Ultimately, the plaintiffs tendered the total amounts claimed by the defendant and recovered their property. They then commenced these actions to recover damages suffered as a result of the defendant's alleged wrongful detention of their personal property.

1. The basic claim put forth by the plaintiffs hinges on their interpretation of the statutory lien created by G. L. c. 239, Section 4, the relevant portion of which is set forth in the margin. [Note 2] The plaintiffs argue that the statute requires an

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evicted tenant's possessions to be moved initially to the "sidewalk, street or way" abutting the tenement and that the defendant's failure to so "place" the property before loading it into the truck constituted a violation of the statute which prevented application of the lien. Alternatively, they argue that even if it is determined that they waived the statutory requirement that their possessions be placed on the sidewalk outside their apartments by refusing offers of the deputy sheriffs to have their possessions placed and left there, they nevertheless were not required to pay the defendant for those charges which would have covered the packing of possessions while inside the apartments and the removal of such property to the public sidewalk. They support this argument with the reasoning that the defendant would not have had a lien for those expenses if the plaintiffs had chosen to have their property left on the sidewalk.

We are not persuaded by the plaintiffs' arguments. The plaintiffs do not contend that the defendant should have continued to place their property on the sidewalk after each told it not to do so. Rather, they argue that the defendant's presumed charges for such activity do not constitute a lien. The statute provides that "[w]hoever accepts the [property] on storage . . . shall have a lien thereon for reasonable storage fees and for reasonable expenses of removing it to the place of storage." Where, as here, the tenants refused to allow the defendant to place their possessions on a public way outside their apartments, the statutory provision must be taken to include the removal of property from the apartment

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to the place of storage. [Note 3] Accordingly, we conclude that the liens claimed by the defendant regarding the plaintiffs' property were valid in their entirety.

2. Because we conclude that the statutory liens claimed by the defendant were valid, we have no occasion to consider the plaintiffs' argument that the motion judge improperly denied their motions to amend their complaints to include a claim that the acts of the defendant violated G. L. c. 93A; such a claim would have been without merit.

Judgments affirmed.


[Note 1] Phyllis Liebling vs. Gleason Brothers, Inc.

[Note 2] General Laws c. 239, Section 4, provides in pertinent part: "If an officer, serving `an execution' issued on a judgment for the plaintiff for possession of . . . tenements, removes personal property, belonging to a person other than the plaintiff, from the . . . tenements and places it upon the sidewalk, street or way on which the . . . tenements abut, he may forthwith . . . remove such property and cause it to be stored for the benefit of the owners thereof. Whoever accepts the same on storage from such officer shall have a lien thereon for reasonable storage fees and for reasonable expenses of removing it to the place of storage . . . . If the owner of such property is present and claims it when it is so removed from the . . . tenements, the officer shall not remove and store it, and his act of placing it upon the sidewalk or street shall be deemed the act of the owner, who alone shall be held to answer therefor." (Emphasis supplied.)

[Note 3] In passing, we note that the motion judge found that the plaintiffs made "no showing that the cost that would have been incurred if the properties had been removed from the sidewalk and stored would have been any less than the actual cost of removing the property from the apartment."