GLENDALE ASSOCIATES, LP vs. KEVIN K. HARRIS.

BLAKE, J. The defendant, Kevin Harris (tenant or Harris), appeals from a judgment entered in the Housing Court voiding his

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lease pursuant to G. L. c. 139, § 19 (§ 19), [Note 1] and awarding possession to the plaintiff, Glendale Associates, LP (landlord). Harris's principal claim on appeal is that the judge failed to conduct a trial and make any findings of fact or conclusions of law to support liability under § 19. He also claims that the judge imposed an unreasonable treatment plan as a reasonable accommodation for his disability, and that it was error to issue an execution before Harris could seek a stay. We conclude that the judgment was not consonant with principles of due process, and accordingly we vacate the judgment and remand the case for further proceedings. [Note 2]

1. Background. Harris was the beneficiary of the Section 8 Housing Choice Voucher Program (Section 8) of the United States Department of Housing and Urban Development, as administered locally through the Boston Housing Authority (BHA). See 42 U.S.C. § 1437f (2012) and related regulations. Harris had a "tenant-based" voucher. [Note 3] He is a disabled individual who suffers from mental illness, and he also receives services from the Department

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of Mental Health (DMH). [Note 4]

Harris entered into a Section 8 lease with the landlord that gave him the right to occupy apartment thirty-three at 422 Columbia Road (apartment or property) in the Dorchester section of Boston. On May 18, 2016, Harris allegedly threw glass bottles from his apartment window intending to injure the landlord's employees standing in the common area below. The police were summoned and entered the apartment accompanied by the property manager. [Note 5] On the same day, the landlord served Harris with a notice voiding his tenancy pursuant to § 19, and ordering him to vacate the property and to remove all his belongings within two days. [Note 6] On May 20, 2016, the landlord, represented by counsel, filed this § 19 action in the Housing Court, seeking injunctive and declaratory relief. A judge issued an ex parte temporary restraining order prohibiting Harris from entering or trespassing on the property and authorizing the landlord to change the locks. After a hearing, the order was continued "until further order of the court." [Note 7] The same judge, who retained jurisdiction over the case, referred Harris to the tenancy preservation program (TPP) for assessment. [Note 8] Although Harris declined to participate in TPP, he agreed

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to develop a treatment plan in conjunction with his DMH case worker that "would allow him to reside in the subject premises and comply fully with the terms of his lease." Thereafter, the matter was continued on several occasions due to Harris's inpatient hospitalizations.

On August 9, 2016, a status hearing was held to discuss a treatment plan that would serve as a reasonable accommodation for Harris's disability and allow him to stay in the apartment. See 42 U.S.C. § 3604(f)(3)(B). At the hearing, Harris's DMH case worker described the proposed plan, which involved inpatient stabilization programs and treatment, daily receipt of medication from visiting nurses, treatment with a new psychiatrist at Boston Medical Center, and participation in a drop-in day program. The judge did not, however, believe that the DMH plan went far enough; she wanted Harris to either work or attend a day program for eight hours per day.

On August 11, 2016, the judge entered an order allowing Harris to return to the apartment as of September 1, 2016, if he was in compliance with the treatment plan that she drafted and incorporated into her order (August order). [Note 9] As part of that order, the

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judge also prohibited Harris from filing any more pleadings or documents in the case (or commencing any further actions against the landlord) without prior authorization of the court (gatekeeper order). Following a status conference on November 9, 2016, the judge found that Harris had not complied with her August order. She listed the deficiencies and ordered him to provide all the missing information and documents no later than the end of the month (November order). Although Harris subsequently submitted additional materials, the judge remained unsatisfied. [Note 10]

While Harris continued his efforts to comply with the judge's August and November orders and to gain lawful reentry to the apartment, on December 4, 2016, the landlord moved for a default, pursuant to Mass. R. Civ. P. 55 (a), 365 Mass. 822 (1974), on the basis that Harris had "failed to serve or file an answer or otherwise defend as to the Complaint." The clerk entered a default on December 20, 2016. On January 19, 2017, the landlord moved, pursuant to Mass. R. Civ. P. 55 (b) (2), as amended, 463 Mass. 1401 (2012), for the entry of a final judgment and the issuance of execution for possession on the same basis. [Note 11] In response, Harris filed an "update" written by his rehabilitation specialist at the South End Community Health Center, explaining the efforts to bring Harris into full compliance with the treatment plan ordered by the judge. The specialist maintained that Harris's recent switch to a new community-based flexible support system,

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which offered "more regular" services and personalized monitoring, would allow Harris to meet the court-ordered plan requirements. He requested that Harris's engagement with these services "act in place of some of the time structuring elements" of the judge's treatment plan. The specialist confirmed that Harris was "appropriately and regularly" engaged with services, and actively seeking to meet the requirements and objectives of the treatment plan. Harris also filed a motion to reenter the apartment. The judge took no action because Harris "failed to obtain written permission of the court for filing [the] document" and Harris "was defaulted on 12/20/16." Harris's written request to file a motion, docketed on February 14, 2017, was not acted upon.

At a review hearing on February 15, 2017, the judge appointed a guardian ad litem (GAL) to assist Harris in achieving compliance with the treatment plan and stayed a decision on the landlord's motion for the entry of a default judgment. The GAL initially was unable to get the file from the Housing Court clerk's office and did not receive the order of appointment until February 23, 2017, notwithstanding that his report was due three days later. The GAL's mandate did not include assisting Harris with his defense. The GAL diligently undertook his assignment and filed two reports along with the documents and information he was able to secure on short notice. [Note 12]

On April 18, 2017, the landlord filed a renewed motion for the entry of a final judgment and the issuance of the execution for possession, again citing Harris's default for "failure to plead or otherwise defend." [Note 13] Harris sought permission to file a response in accordance with the gatekeeper order. [Note 14] The judge denied Harris's motion, stating that he could respond at the oral argument. At a hearing on May 3, 2017, the judge determined that the information provided by the GAL was insufficient, ordered the GAL to prepare a proposal for a new treatment plan, and scheduled a hearing for May 10, 2017. The GAL submitted a proposed treatment plan as ordered.

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On the same day that the judge took the GAL's proposed plan under advisement, she allowed the landlord's renewed motion for judgment. No hearing or argument on the landlord's renewed motion was ever held, thus denying Harris the ability to respond to the motion, either orally or in writing. Following the entry of judgment on May 16, 2017, Harris filed a timely "motion to reconsider judgment," which was denied after a hearing. An execution for possession to the landlord issued on June 28, 2017. [Note 15] Two days later, the landlord levied on it, dispossessing Harris of all rights in the apartment. On July 7, 2017, the judge allowed Harris's motion to stay the levy of execution pending appeal. However, she subsequently reversed herself because the levy had already occurred. On July 11, 2017, Harris filed a notice of appeal.

2. Discussion. a. Timeliness of appeal. Relying on Rule 12 of the Uniform Summary Process Rules (2004) (rule 12), the landlord contends that Harris's notice of appeal was untimely because it was filed more than ten days after the judgment entered. [Note 16] We disagree. First, Harris's timely postjudgment motion stayed the commencement of the appeal period until June 26, 2017, the date that the judge's order denying Harris's motion was entered on the docket. See Youghal, LLC v. Entwistle, 484 Mass. 1019, 1020-1021 (2020); Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 857-858 & n.20 (2019); Manzaro v. McCann, 401 Mass. 880, 881-882 (1988); Mass. R. A. P. 4 (a) (2), as appearing in 481 Mass. 1606 (2019). Second, the only specific timeframe provided in rule 12 relates to an appeal bond hearing. The ten-day period is instead fixed by the summary process statute, G. L. c. 239, § 5, a statute that is not the basis for the landlord's action. See Youghal, LLC, supra at 1020 n.5 (noting that G. L. c. 239, § 5 [a] provides ten-day period for filing notice of appeal "in an action under this chapter").

Section 19, in contrast, does not contain a timeframe for filing a notice of appeal. We conclude that for the plaintiff, who elected to proceed under § 19, and not § 5, the longer, thirty-day appeal

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period of the Massachusetts Rules of Appellate Procedure applies. See Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019) ("In a civil case, unless otherwise provided by statute, the notice of appeal required by Rule 3 shall be filed with the clerk of the lower court within 30 days of the date of the entry of the judgment, decree, appealable order, or adjudication appealed from"). Here, the appeal period was stayed until the judge's decision on Harris's postjudgment motion. Harris's notice of appeal, filed fifteen days after the entry of the order denying relief, was timely.

The landlord's timeliness argument overlooks the fact that it selected the vehicle by which to regain possession of the apartment. In filing an action pursuant to § 19, a lessor or owner has two forms of available relief. It may either seek an order requiring the tenant to vacate, as the landlord did here, or avail itself of the remedies provided in the summary process statute. See New Bedford Hous. Auth. v. Olan, 435 Mass. 364, 371 (2001) (in § 19 action, "a lessor or owner may obtain relief against a tenant who commits any of the acts proscribed therein either through an action for declaratory or equitable relief, or through an action under G. L. c. 239, summary process"). The landlord chose the former. In so doing, it benefited from the swift remedy afforded pursuant to § 19. Having elected its remedy, the landlord may not avoid the appellate consequences of filing a civil action (i.e., the longer appeals period) rather than a summary process action. [Note 17]

b. Mootness. Next, the landlord argues that the case is moot because the landlord has taken possession of the apartment, and Harris did not move to stay the proceedings or to prevent the levy. We are not persuaded. Although Harris was evicted, he retains a personal stake in the outcome of this appeal since he has the right

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to be returned to comparable housing if he prevails. See New Bedford Hous. Auth. v. Olan, 50 Mass. App. Ct. 188, 194 n.11 (2000), S.C., 435 Mass. at 370 n.9. Accord Brockton Hous. Auth. v. Mello, 92 Mass. App. Ct. 682, 684 (2018) (rejecting BHA's mootness argument because tenant retained "protectable property interest in his public housing tenancy"). Moreover, Harris's eligibility for future Section 8 benefits may be negatively impacted by the judgment. We reject the landlord's attempt to distinguish these cases based on the type of housing assistance Harris receives. Harris has just as much of a constitutionally protected property interest in his housing subsidy as a tenant receiving project-based assistance. See Rivas v. Chelsea Hous. Auth., 464 Mass. 329, 339-340 (2013). [Note 18] And, because an action filed pursuant to § 19 is a declaratory action from which the parties may request injunctive relief, the case is not moot.

c. Reasonable accommodations under § 19. The judge bypassed the question of Harris's liability under § 19 and proceeded directly to the remedial phase of the litigation. We begin our analysis there. Where a disabled tenant potentially poses a threat to others, a provider of assisted housing must perform "an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence" as to whether the risk may be eliminated or acceptably minimized by reasonable accommodation (citation omitted). Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833, 850 (2009). Under the BHA's reasonable accommodation policy, if an accommodation can eliminate or sufficiently reduce the risk through the modification of policies, or by the provision of aids and services, it must be provided. See id. at 843. We conclude that the judge abused her discretion by rejecting the treatment plan proposed by the GAL and crafting an unreasonable plan as an accommodation of Harris's disability.

Harris had little chance of meeting the unduly burdensome treatment plan imposed by the judge. The record establishes that Harris made several good-faith attempts to comply with it. However, through no fault of his own, he was unable to comply with some aspects of it. For example, Harris was unable to meet with a visiting nurse daily at the apartment as required by paragraph

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two of the judge's treatment plan. [Note 19] See note 9, supra. In addition, Harris's psychiatrist refused to comply with the plan's reporting requirements, as he did not consider them to be part of his job. [Note 20] Harris's primary care physician submitted a letter to the judge explaining that Harris's court-ordered homelessness was hampering his ability to receive mental health treatment. Moreover, the limitations of the mental health system may have interfered with Harris's ability to comply. Asked what else he believed might help Harris keep "compliant," the DMH case worker said that he had suggested "everything that [DMH] ha[d] available." As the DMH case worker warned the judge, structured day programs of the type the judge envisioned may not have been the right fit for someone with Harris's clinical diagnosis. The judge's insistence that Harris leave his apartment for at least five hours per day was not medically appropriate for his specific needs and contributed to his inability to comply with the onerous treatment plan. [Note 21]

Reasonable accommodation contemplates an interactive process between the parties and takes time. As explained by the GAL, the personalized services recommended by Harris's health care professionals, to be overseen by Harris's rehabilitation specialist, were all in place as part of the GAL's alternative plan. The specialist stood ready to assist Harris with all court-ordered compliance

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requirements. However, the judge rejected the detailed proposed plan without explanation. Where the burden was on the landlord (and not Harris) to demonstrate that no reasonable accommodation was feasible, this amounted to legal error. [Note 22] See Bridgewaters, 452 Mass. at 842-843. See also Adjartey, 481 Mass. at 849 (judge considering tenant's request for reasonable accommodation to allow equal access to courts must make findings sufficient to permit appellate review).

d. Liability. Section 19 is a powerful private remedy that permits a landlord, in certain limited circumstances, to recover possession of an apartment in an expeditious fashion. See Olan, 435 Mass. at 368-369. The criminal acts allegedly committed by Harris, if proved, would allow the landlord to evict Harris under § 19. Here, however, the allegations were never tried before a judge or jury. [Note 23] Harris claims that the allegations are false, and that he never intended to harm anyone. He was never charged with any crime. Harris, a pro se litigant in the trial court, was not given the opportunity to present a defense, and to confront and cross-examine the witnesses against him. See Carter v. Lynn Hous. Auth., 450 Mass. 626, 637 n.17 (2008) (recognizing right of self-represented litigants to meaningful presentation of cases). In fact, the record shows that on several occasions, the judge cut off Harris's efforts, both in writing and orally, to deny liability. Under the plain language of § 19 and principles of due process, Harris was entitled, at a minimum, to an evidentiary hearing. See note 1, supra.

The landlord argues that findings and rulings were unnecessary in light of Harris's "default." Indeed, as we construe the record, the judge appears to have entered a default judgment of possession in favor of the landlord. [Note 24] In these circumstances, a default judgment is disfavored, especially where fundamental interests

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like housing are at stake. Regardless of whether the default judgment was entered pursuant to Mass. R. Civ. P. 55, as the landlord claims, or as a sanction for noncompliance with the court-ordered treatment plan, we conclude that it was an abuse of discretion to enter it. Although Harris had not formally answered the complaint at the time the judge allowed the landlord's renewed motion, he had denied the allegations and had been actively participating in the litigation for almost a year. In fact, the judge had issued a gatekeeper's order designed to minimize Harris's court filings. Such an order was entirely inconsistent with a "default." The judge, moreover, had appointed a GAL to assist Harris with crafting a treatment plan. This combination of circumstances amounted to "otherwise defend[ing]" within the meaning of Mass. R. Civ. P. 55 (a). Compare Riley v. Davison Constr. Co., 381 Mass. 432, 441-442 (1980).

Rule 10 (a) of the Uniform Summary Process Rules (2004), even if not directly applicable in a § 19 proceeding, a question we need not reach, is instructive on this point. [Note 25] Under that rule, a tenant like Harris who timely appears and defends an eviction proceeding may not be defaulted solely for failing to answer the complaint. See Adjartey, 481 Mass. at 856. And, if the default judgment entered as a sanction for Harris's failure to comply with the unreasonable treatment plan, this is error as it is too Draconian of a punishment. See Gos v. Brownstein, 403 Mass. 252, 257 (1988) ("due process requirements may limit the sanction of dismissal" for noncompliance with judge's orders); CMJ Mgt. Co. v. Wilkerson, 91 Mass. App. Ct. 276, 284 (2017) (judge's discretion in choice of sanctions is limited by due process principles, and sanction must be "just").

Finally, while we recognize the extraordinary demands of the Housing Court docket, the proceedings leading up to entry of the default judgment were fundamentally unfair to Harris. Not only did the judge fail to rule on Harris's motion to set aside the default, she did not give Harris the opportunity to present argument in opposition to the landlord's renewed motion, as she had promised to do. Entry of a default judgment under these circumstances was error.

Conclusion. The judgment is vacated, and the case is remanded

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to the Housing Court for further proceedings consistent with this opinion.

So ordered.