2017 Mass. App. Div. 70

April 27, 2017

Appellate Division Southern District

Court Below: District Court, Hingham Division

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

Franz J. Strassmann for the plaintiff.

Gregory F. Birney for the defendant.

WELCH, J. This matter comes before us pursuant to a finding for possession and money damages to the plaintiff-appellee, Franz J. Strassmann ("Strassmann" or "Landlord"), against the defendant-appellant, Alicia Frechon ("Frechon" or "Tenant"). Notwithstanding a collateral procedural history, [Note 1] the case under appellate review is a summary process matter from the Hingham District Court, Strassmann v. Frechon, No. 1558SU0055. The case arises out of a tenancy wherein, beginning January 11, 2015, Frechon rented the second-floor apartment located at 26 Bay Street, Hull, Massachusetts ("apartment") from Strassmann. Frechon landed the apartment after other tenants broke the lease. Frechon informed Strassmann that she wanted to live in the property only for a couple of months. Strassmann agreed to rent the premises to Frechon at a reduced rental rate of $1,400.00, plus utilities, [Note 2] through May 31, 2015 (the date the prior tenancy was to have terminated). Prior to renting the apartment, Frechon visited the unit On her first visit, Frechon complained of the odor of cigarettes.

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Strassmann informed Frechon that the former tenants did smoke but mostly outside, and that the apartment had been professionally cleaned the week before. As to the first-floor tenant, Strassmann informed Frechon that she smoked cigarettes. Strassmann spoke with the downstairs tenant about the smoking, and the downstairs tenant agreed to smoke outside. Notwithstanding the remedial action, Frechon continued to complain about the smell of cigarette smoke.

In early March, 2015, Frechon gathered a whiff of another type of smoke, produced from marijuana, and she notified the police who chronicled the smell of marijuana in police reports. Between March 2 and March 10, 2015, six police reports were generated due to Frechon reporting the cannabis bouquet. The downstairs tenant denied marijuana use, further stating it could have been guests who were there when she was not; however, she generally denied any marijuana smoking in the apartment. The marijuana complaints never went beyond the mere chronicling in a police report.

On March 31, 2015, Strassmann served Frechon simultaneously with both a fourteen-day notice to quit for failure to pay rent as well as a thirty-day notice to quit and of change in lease terms in the event she were to remain in the apartment (two separate documents). The latter required that Frechon quit the premises by April 30, 2015, unless she executed a new lease at market rent and put the utilities, gas and electric, in her own name (as she had thus far failed to do [Note 3]). Frechon neither executed the lease nor put the utilities in her name.

Frechon's issues on appeal are that the serving of two notices, one to quit and one to continue the tenancy, was defective and that the contents of the notice to quit was also defective. Frechon posits that she was not properly served with a notice to quit as "two notices to quit served simultaneously cannot terminate a tenancy," and that the errors contained in the notices to quit require a new trial.

It is clear from the record that there is nothing before us for appellate consideration. An appeal to this Appellate Division, or any appellate court, is restricted to issues of law properly raised in the trial court and preserved for appellate review in the form of the trial court's rulings. Ducker v. Ducker, 1997 Mass. App. Div. 147, 148. See generally Skowronski v. Sachs, 62 Mass. App. Ct. 630, 632 (2004); DeLima v. Gossels, 2009 Mass. App. Div. 4, 5; Davis v. Douglas, 2008 Mass. App. Div. 249, 250. Frechon could have raised and preserved questions of law by filing in the trial court requests for findings and rulings pursuant to Mass. R. Civ. P., Rule 52(c), or a motion, such as one for involuntary dismissal pursuant to Mass. R. Civ. P., Rule 41(b)(2), that tested the sufficiency of Strassmann's evidence. See Macone Bros., Inc. v. Strauss, 1997 Mass. App. Div. 95, 96. Frechon failed to do so. Because no Rule 52(c) requests were filed, the trial judge was not obligated, and did not elect, to make written findings of fact. In the absence of findings and rulings, Frechon's appeal is merely a challenge to the trial court's general finding in favor of Strassmann. An allegation of error in a general finding does not, however, present a question of law for appellate review. The reason is that appeals "lie only to questions of law, and where there is a general finding, without more, fact and law are interwoven to such an extent that no question

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of law is presented." Ducker, supra at 148, quoting Mastercraft Wayside Furniture Co. v. Sightmaster Corp., 332 Mass. 383, 386 (1955). [Note 4]

Appeal dismissed.


[Note 1] The litigation history initiated with the Tenant filing in the Hingham District Court, Frechon v. Strassmann, No. 1558CY0235, a request for a restraining order, the case was heard on July 23, 2015, and the judge denied the Tenant's request. However, the court also went on to say that in the event of a subsequent summary process action, the parties "may move to join actions." Although the ruling was not entered on the docket, when the summary process case was later filed, the court did join the actions at the beginning of the summary process trial. Apparently not satisfied with the outcome of the Hingham hearing, the tenant filed another request for a restraining order, this time in the Brockton Housing Court, Frechon v. Strassmann, No. 15H83CV658BR. The Brockton judge denied the Tenant's request as the case had already been tried in the Hingham District Court.

[Note 2] As to the utilities, Frechon stated she did not want to place the utility bills in her name. It is the contention of Strassmann that the reason Frechon did not want the utilities to be in her name was that she was perpetrating a fraud on the city of Braintree as she was claiming to be homeless in Braintree in order to obtain school, transportation, and other benefits for her children (one child was provided transportation through the city of Braintree until the end of 2015).

[Note 3] The failure to place her name on the account resulted in National Grid shutting off the gas into Frechon's apartment on May 5, 2015. The gas was turned off for approximately forty-eight hours, and Strassmann paid to have it turned back on.

[Note 4] If the issue had been properly raised, it is of no moment as the Tenant was properly provided the statutory requirements of notice, notwithstanding having received a notice to quit and a notice to change lease terms. The Landlord was properly providing two alternatives to the tenancy, one to leave and one to begin a new tenancy. It is clear from the record that the two notices had been sent and the tenant was provided proper notice and any drafting error was not prejudicial (in one location on the notice, the identity of the apartment was floor 1 versus, correctly, floor 2 of this two-floor apartment house). See Spence v. O'Brien, 15 Mass. App. Ct. 489, 498 (1983) (where tenant of public housing project knew with reasonable particularity of proposed action so she could reasonably prepare her arguments, notices were adequate even if notices were facially deficient in some respect). As to Frechon's argument that the defective notice to quit is a matter of subject matter jurisdiction, the issue was thoroughly addressed in 11 Everett St. Realty Trust v. Hynes, 2002 Mass. App. Div. 10, 11, and we do not accept the invitation to broaden the court's analysis to the present case.