2017 Mass. App. Div. 176

July 21, 2017 - November 8, 2017

Appellate Division Southern District

Court Below: District Court, Quincy Division

Present: Hand, P.J., Finnerty & Kirkman, JJ.

Timothy J. Perry and Russell J. Fleming for the plaintiff.

Benjamin H. Dowling for the defendant.

HAND, P.J. This case arises out of a residential summary process action. The parties had a written lease running from December 13, 2012 until September 1, 2019. On May 26, 2016, landlord-appellee Liseta Melo ("Melo") served a notice to quit on her tenant, appellant Kurt Hampe ("Hampe"). That notice stated that "[t]he reason for this notice is due to your breach of quiet and [sic] enjoyment." Some two months later, in August, 2016, and without amending her notice to quit, Melo filed a complaint claiming her entitlement to rent based on both Hampe's breach of quiet enjoyment and Hampe's failure to pay $20,900.00 in rent for the period from February, 2015 until August, 2016. It is undisputed that the complaint was served on Hampe, and that he did not file an answer or other response to that complaint.

The case was tried jury waived on September 8, 2016. In her direct testimony at trial, Melo testified to her concerns about Hampe's making noise at the property. She also testified that Hampe had not paid his rent for fifteen months. Hampe did not object to Melo's testimony about his rent arrearage. Through counsel, Hampe cross-examined Melo about her claims on both issues and, with respect to Melo's claim that he had not paid rent, about whether Melo had refused Hampe's tender of rent during his tenancy.

Page 177

After Melo rested, the court ruled that she had failed to carry her burden of proof on her claims that Hampe's breaches of her quiet enjoyment entitled her to possession of the property, but noted that it "[was] concerned about the rent. [The landlord] says she hasn't gotten a cent since February of 2015." Again, Hampe was silent about any objection to the court's consideration of the failure to pay rent as a basis for the summary process action, and went on to testify at some length about his unsuccessful attempts to tender rent payments to Melo. It was not until closing arguments that Hampe raised, for the first time in the life of the litigation, the fact that the notice to quit had not included a reference to Hampe's unpaid rent. Even then, the reference was only a passing one: Hampe's counsel, arguing that Melo had refused Hampe's offers to pay rent as a means of creating a basis on which to evict Hampe, argued that Melo had "[begun] eviction proceedings [for reasons other than] non-payment of rent." When the court observed that the issue of unpaid rent had been included in the complaint, Hampe referred to the account annexed referenced in the complaint and then resumed his argument that Hampe did not owe Melo rent. [Note 1] Hampe did not seek to preserve this or any legal issue by filing requests for rulings of law, pursuant to

Page 178

Massachusetts Rule of Civil Procedure 52(c), [Note 2] and did not make any additional reference to the notice to quit until he filed his appeal.

While service of a valid notice to quit is a prerequisite to a residential summary process action, see, e.g., 11 Everett St. Realty Trust v. Hynes, 2002 Mass. App. Div. 10, 11, citing Bech v. Cuevas, 404 Mass. 249, 255, and Harris v. Munro, 1999 Mass. App. Div. 76, 77, "[a] [l]andlord's failure to serve a proper notice to quit . . . does not affect the [court's] jurisdictional power and authority to adjudicate the [l]andlord's claim." Id. The invalidity of a notice to quit is an affirmative defense, see, e.g., Petro Group, Inc. v. Eskanian, 2008 Mass. App. Div. 95 (defects in notice to quit raised as affirmative defenses); the defending party is obligated to raise the defense in order to rely upon it. Rule 3 of the Uniform Summary Process Rules ("The defendant shall . . . state in the answer any affirmative defenses which may be asserted . . . ."). As it is undisputed that Hampe failed to answer Melo's complaint, or to respond otherwise to the complaint to include his affirmative defense, we conclude that he waived that defense.

Even if Hampe had effectively raised the fact that Melo's complaint identified a basis for the eviction that had not been included in Melo's notice to quit, Hampe's failure to pursue the defense, either pretrial through a motion to dismiss or at trial, precluded him from relying on it. See, e.g., American Int'l Ins. Co. v. Robert Seuffer GMBH & Co. KG, 468 Mass. 109, 110 n.2 (2014) (even where party effectively raises affirmative defense, defending party can waive it, or, in case of jurisdictional defense, forfeit it, by litigating its case in way that is inconsistent with its assertion of that defense); Boynton v. Bodwell, 113 Mass. 531, 536-537 (1873) ("If the plaintiff, knowing that the notice was intended to terminate the tenancy on that day, waived any objection to its informality, or by his words and conduct led the defendant reasonably and properly to understand that he waived such informality, he cannot now object that the notice was insufficient."). See also Verdier v. Clapper, No. 06-P-399 (Mass. App. Ct. Jan. 19, 2007) (unpublished Rule 1:28 decision) (rejecting argument that "statutory requirement of a notice to quit is 'jurisdictional' in the sense that any defect in the notice is usually fatal").

Here, Hampe failed at the pretrial and trial stages to preserve any defense that he had, based on infirmities of the notice to quit, to Melo's eviction action. As the defense cannot be raised, as it is here, for the first time on appeal, McNamara v. Corte-Real, 2009 Mass. App. Div. 215, 218, citing Carey v.New England Organ Bank, 446 Mass. 270, 285 (2006) (issue not raised or argued below may not be argued for first time on appeal), the trial court's judgment in favor of Melo is affirmed.


[Note 1] The trial transcript includes the following exchange:

[DEFENSE COUNSEL]: Your Honor, thank you. Your Honor, the testimony from Mr. Hampe was that he made the offer. In support of that, although there isn't tangible proof, there's a reasonable inference that if he had not been offering to make the payments, and if Ms. Melo actually didn't say, I don't want the money; I want you out, she would have had very knowingly, anybody would know you could go to the courts for redress for non-payment of rent. She never did that. She never came in here and said, I have a tenant who refuses to pay me on demand.

In the lease, it doesn't say that it's an automatic addition of $600. It says, unless there is a non-related, if the tenant subleases a part of the apartment to a non-relative, and he's encouraged to do so, if no family member lived with him, the rent will increase by $600 a month.

The only testimony we heard about another party being there in the last 18 months was [Hampe's] brother-in-law, who would be a relative. So there wouldn't be an additional $600.

We're talking about $500. The offer was made. It was refused, and the statements, and the proposition put forward by Mr. Hampe that she refused to accept it, because she wanted him out, makes sense in light of her attempt for later on to begin eviction proceedings and not based on non-payment of rent. So, for those reasons --

THE COURT: Well, it's in the complaint, right?

[DEFENSE COUNSEL]: In the initial one?

THE COURT: It's in the complaint I have here is for the rent that's owed from February 2015 until August 2016.

[DEFENSE COUNSEL]: Well, that wasn't the account next [sic]. Okay. But that's -- the point is still that he avers that he made numerous efforts to pay her and that it was her refusal.

In fact, the statement to the plumber that she avoided the $900 bill, plumbing bill, because she wasn't the owner of the house, goes to show that she had maintained to him for some time that she didn't own the house, and for those reasons, we ask you to find that there wasn't a breach.

[Note 2] "Rule 1 of the Uniform Summary Process Rules adopts the Massachusetts Rules of Civil Procedure, 'insofar as the latter are not inconsistent with' the Uniform Summary Process Rules." Reporters' Notes to Mass. R. Civ. P. 52 (2008).