2017 Mass. App. Div. 126

April 28, 2017 - August 28, 2017

Appellate Division Northern District

Court Below: District Court, Woburn Division

Present: Coven, P.J., Singh & Crane, JJ. [Note 1]

Natalie R. Megaloudis for the plaintiff.

David A. Libardoni and David L. Ferrera for the defendant.

PER CURIAM. After a jury trial, defendant Magaly Mejia ("Mejia") was evicted from her Stoneham apartment due to lease violations. Plaintiff Atlantic Tambone Management (the "landlord") alleged that Mejia had violated lease provisions that prohibited her from having individuals live with her who were not approved occupants under the lease. It was the landlord's contention at trial that, although Mejia was the only approved occupant on the lease, she allowed her adult son to live with her. The landlord also alleged that Mejia violated lease provisions that required her to ensure that her guests did not interfere with the rights of other tenants. In this regard, it was the landlord's contention that Mejia's son had stolen a television from another tenant. Although the case was presented to the jury on these two theories, the jury returned a general verdict in favor of the landlord.

On appeal, Mejia argues that the alleged theft of the television occurred during a prior lease period and therefore could not be the subject of an eviction during a later lease period. Mejia further argues that, even if the jury had found her liable only on the other theory (that she allowed her son to live with her as an unapproved

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occupant), evidence of the television theft prejudiced her ability to defend that claim, as it caused her key witness -- her son -- to be unavailable to testify due to invocation of his Fifth Amendment privilege against self-incrimination. We find no error and therefore affirm.

Mejia had lived in her Stoneham apartment complex since December, 2006. In 2010, the parties signed a one-year occupancy agreement with a provision that it would be automatically renewed for successive one-year terms unless earlier terminated. The agreement was renewed each year, with the final term being February 1, 2014 through January 31, 2015. By letter of October 28, 2014, the landlord gave Mejia a notice to quit due to lease violations. Specifically, the notice alleged that Mejia allowed her adult son to live with her when he was not an approved occupant under the lease. The notice also indicated that Mejia's son had taken a television set that had been delivered to another tenant; after being confronted by the management and by police, the son paid the other tenant the cost of the television. As Mejia did not vacate the property, the landlord commenced eviction proceedings.

Prior to trial, Mejia moved to exclude evidence concerning her son's alleged theft of the television because the incident occurred outside of the relevant lease period; that motion was denied on July 21, 2015. The case was not reached for trial until May 12, 2016, at which point Mejia renewed her motion, which was again denied.

At trial, it was undisputed that Mejia was the only approved occupant on her lease and that the lease required her to be responsible for her guests. The landlord presented the testimony of the property manager, the building superintendent, and Mejia's next door neighbor to establish that Mejia's son was living with her. The property manager testified that she had personally seen Mejia's son on the property so often in the past six months that she issued Mejia a notice of lease violation on September 6, 2014. In response to the notice, Mejia submitted a request to have her son become an approved occupant on the lease. As part of the background check, the property manager learned that Mejia's son was alleged to have stolen a television from another tenant in 2013. [Note 2] As a result, the landlord denied Mejia's request. When notified of the decision, Mejia stated that she could not live without her son.

The landlord also presented the testimony of Mejia's son, who indicated that he would be asserting a Fifth Amendment privilege against self-incrimination. As a result, the landlord was permitted to ask Mejia's son three questions: (1) whether he lived with his mother; (2) whether he took a television from Mejia's neighbor; and (3) whether his mother was present when he spoke to the neighbor regarding the television. Mejia's son asserted his privilege with respect to each question. Mejia testified on her own behalf.

On the question of whether the landlord should have been precluded from proceeding on the television theft theory because it took place in a prior lease period, the parties have briefed the issue of whether the lease was renewed or extended.

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Under the renewal theory, a new and distinct lease is created each year upon the same terms and conditions as the original lease; under the extension theory, the parties operate under a single lease, one set of terms and conditions, which is simply extended in length of time. See HLM Realty Corp. v. Morreale, 394 Mass. 714, 716-717 (1985); Anderson v. Lissandri, 19 Mass. App. Ct. 191, 194 (1985). We need not resolve this issue as we believe the crux of the matter is waiver -- whether the landlord in any way waived its ability to terminate the lease in 2014 due to events occurring in 2013. Waiver is a question of fact. M.J.G. Props., Inc. v. Hurley, 27 Mass. App. Ct. 250, 253 (1989); Corcoran Mgt. Co. v. Withers, 24 Mass. App. Ct. 736, 742-745 (1987). The judge therefore properly denied Mejia's motion in limine and allowed the issue to go to the jury. [Note 3]

With respect to Mejia's argument that the ruling unduly prejudiced her because it caused her to be without her key witness (her son) on the unapproved occupant theory, we find no merit. Mejia was available to give firsthand testimony in that regard, and she did. Additionally, according to her testimony, her son lived with another sibling. The record does not disclose any reason that the other sibling could not testify. Furthermore, the motion in limine to exclude evidence of the alleged television theft was decided nearly a year prior to trial. There was sufficient time to anticipate the Fifth Amendment privilege issue, as well as to secure alternative witnesses. Mejia also takes issue with the judge's handling of her son's invocation of the privilege before the jury. The judge applied the proper factors in determining whether the jury could draw a negative inference against Mejia due to her son's invocation of the privilege. He also gave correct limiting instructions to the jury in this regard. We find no abuse of discretion. See Lentz v. Metropolitan Prop. & Cas. Ins. Co., 437 Mass. 23, 30-32 (2002).

Judgment is affirmed.

So ordered.


[Note 1] The Honorable Sabita Singh participated in the hearing, review, and decision of this case, but was appointed to the Appeals Court prior to the issuance of this opinion.

[Note 2] The neighbor gave direct testimony regarding the alleged theft of the television. He stated that he had been awaiting the delivery of a television set. When it did not arrive, he viewed security video that showed the television being delivered and subsequently Mejia's son taking the package away. The neighbor thereafter demanded a meeting with management at which Mejia and her son were present. At that meeting, Mejia gave the neighbor $250.00 for the television.

[Note 3] The jurors had before them the original 2010 lease, as well as all of the subsequent renewals. They were instructed that it was up to them to determine the terms of the agreement between the parties. Mejia's counsel argued the waiver issue to the jury.