2017 Mass. App. Div. 90

February 17, 2017 - May 10, 2017

Appellate Division Northern District

Court Below: District Court, Natick Division

Present: Coven, P.J., Crane & Nestor, JJ.

Laurie A. McKeown for the plaintiff.

Alan H. Aaron for the defendant.

CRANE, J. This appeal addresses whether a landlord that incurs costs and expenses paid to a constable or others to obtain possession of its property and remove and store the property of the tenant pursuant to an execution issued in a summary process action may recover them in the summary process action or is required to do so in a new action. We vacate the second judgment entered by the trial court because the original judgment was final, and the damages awarded by the second judgment must be recovered in a new action.

On February 27, 2014, pursuant to agreement of the parties, the trial court entered judgment for the landlord for possession and awarded damages for rent and use and occupancy in the amount of $4,000.00. The court issued two executions dated May 21, 2014. One was for possession only; the other was on a money judgment in the amount of $4,342.00 that also included pre-and postjudgment interest and costs. The tenant used the premises to store construction and excavating machinery and tools and equipment that were used in connection with its business.

On June 4, 2014, a constable took possession of the premises and began removing and storing the tenant's property. The tenant's property included two dump trucks, a camper and motor home, a front-end loader, a tractor, trailers, and other large construction equipment. Because of the volume and nature of the tenant's property, it took the constable until June 11, 2014 to remove all of the tenant's property and store it. By June 11, 2014, the landlord was in possession of the premises. On June 13, 2014, the constable offered his return on the execution for possession with the endorsement that is was satisfied with possession only. It included an itemized inventory of all of the tenant's property that was removed and its whereabouts at a licensed public warehouse and a licensed towing and storage company. The return did not recite the costs incurred in removing and storing the tenant's property. The parties stipulated that the other execution for damages was satisfied in full by payment from the tenant.

On June 9, 2014, the landlord filed a motion to assess costs of eviction, seeking recovery for funds that it had advanced to the constable for fees and to others for services to remove and store the tenant's equipment. On June 23, 2014, the court endorsed a stipulation of the parties that, in pertinent part, allowed the landlord to

Page 91

attach certain equipment of the tenant post judgment; required the tenant to deliver title documents for some of the equipment to the landlord; permitted the tenant to remove other equipment from storage; and authorized both parties to conduct discovery and request a case management conference before any hearing would be conducted to award the landlord any damages for the expenses incurred to remove and store the tenant's property.

Following various pretrial conferences and the appearance of new counsel for the tenant, a bench trial was scheduled for October 6, 2015. The tenant moved in limine to limit any evidence other than for possession, rent, and use and occupancy, asserting that other damages may not be obtained in a summary process action. The same trial court judge who endorsed the stipulation of the parties denied that motion and stated: "This court finds this motion not to be a motion in limine. This is a substantive motion that should have been heard months or weeks ago. This motion is too late. Further, MGL ch. 239 § 4 permits recovery of damages after execution. Bizzaro never addressed this law." The endorsement also stated that the judge would retain jurisdiction and that the hearing would be held.

Thereafter, on March 29, 2016, a different trial court judge conducted a hearing at which both parties were present and represented by counsel. At that hearing, the tenant made timely requests for findings and rulings that contested whether the landlord could recover these amounts as costs in the summary process action. The second trial court judge entered an order for assessment of damages that found facts and awarded the landlord $85,640.00 in the summary process action as damages for the amounts that the landlord incurred to remove and store the tenant's property. On May 6, 2016, the trial court entered a second judgment based upon that order. The tenant appeals from that award.

The tenant asserts that the landlord may recover these damages only in a new action because the judgment in the summary process action for possession and rent or use and occupancy did not provide for other damages or costs. The tenant also contends that the judgment is final and not subject to amendment once execution has been issued and satisfied. The landlord asserts that where the parties agreed and stipulated to conduct further proceedings in the summary process action with the approval of a trial court judge, the landlord was entitled to recover these damages in the summary process action and without filing a new action.

The landlord may not recover the damages awarded by a second judgment in this action. The original judgment entered on February 27, 2014 was final. "The test of the finality of a decision is whether it terminates the litigation on the merits, directs what judgment shall be entered, and leaves nothing to the judicial discretion of the trial court . . . ." Pollack v. Kelly, 372 Mass. 469, 476 (1977), quoting Real Prop. Co. v. Pitt, 230 Mass. 526, 528 (1918). Neither the agreement for judgment entered by the parties nor the judgment that followed made any reference to any recovery of any costs that might be incurred to recover possession of the premises. See Draper v. Town Clerk of Greenfield, 384 Mass. 444, 450-454 (1981). Consequently, the judgment was final pursuant to Mass. R. Civ. P. 54(a) and could be reopened only by a timely motion under Rule 59(e). None was ever filed, and to the extent that the plaintiff's motion to assess costs of eviction might be considered to be such a motion, it was not timely filed within ten days of the entry of judgment.

Page 92

The parties essentially conducted a new action with discovery, pretrial conferences, and an evidentiary hearing after the original final judgment in this action. This contravenes the principle that a final judgment triggers the parties' rights to appeal and permits an orderly appellate process that avoids piecemeal appeals. Courts issue executions such as those received by the plaintiff only after a final judgment and the expiration of all appeal periods. Even with the approval of the original trial court judge, the parties could not agree to conduct further proceedings to obtain another judgment in this action as they did here once a final judgment was entered followed by executions on that judgment that were satisfied before the proceedings that produced the second judgment.

The provisions of G.L. c. 239, § 4(c) set forth the manner in which a landlord or a public warehouser that the landlord engages may be reimbursed for costs of removal and storage after satisfaction of an execution for possession through enforcement of a lien. It is not the exclusive means since a landlord is permitted to recover these same damages in a new action. Jinwala v. Bizzaro, 24 Mass. App. Ct. 1 (1987). However, a landlord or any other party that incurs costs and expenses in enforcing a final judgment must seek relief in a new action to recover those that cannot be satisfied from any sale or disposition of property seized by a sheriff or constable pursuant to an execution.

The landlord stored some of the tenant's equipment at Smitty's Towing ("Smitty's"). The tenant also seeks the return of all of its property that was stored at Smitty's to a place of its choosing because Smitty's was not a licensed public warehouse. The tenant objected to charges for storage at Smitty's because it was not a licensed public warehouse. The tenant did not present any evidence that its property was damaged while stored at Smitty's, and its only objection was to the amount of the charges and failure to provide bills or statements for these charges promptly as they accrued. We do not address these matters because we have determined that the landlord may not recover them in this action. We also note that the tenant never made any request to the trial court that its property be returned from Smitty's to a place of its choosing. Accordingly, we take no action on that request. Royal Indem. Co. v. Blakely, 372 Mass. 86, 87-88 (1977).

The judgment entered on May 6, 2016 is vacated, and the original judgment entered February 27, 2014 is affirmed and final.


[Note 1] In his official capacity as Granite Enterprises, Inc.