Home CAPTAIN 223W, LLC v. JUDITH McADAMS, DVM and another [Note 1]

2018 Mass. App. Div. 150

March 9, 2018 - October 24, 2018

Appellate Division Southern District

Court Below: District Court, Plymouth Division

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

James F. Creed for the plaintiff.

Todd S. Dion for the defendants.

FINIGAN, J. This is a summary process action to recover unpaid rent and possession of commercial premises in Kingston, Massachusetts. Prior to trial, the parties reached an agreement for judgment for possession to enter in favor of the landlord-appellant, Captain 223W, LLC ("Captain"), and requested the matter be transferred to the civil docket to resolve a dispute over damages. The case was tried without a jury. At trial, Captain sought damages for unpaid rent of $29,154.00, while the tenant-appellee, Judith McAdams ("McAdams"), claimed Captain actually owed her $926.72, based on her calculations. After hearing testimony from three witnesses and considering thirteen exhibits offered by the parties, the court awarded damages of $8,500.00 to Captain. Captain has appealed pursuant to Dist./Mun. Cts. R. A. D. A. 8C on the ground the trial judge erred by failing to make findings of fact regarding the damages award. Based upon the record, it is clear certain matters are not in dispute. McAdams, a licensed veterinarian doing business as South Shore Animal Services, LLC, operated an animal clinic at One Tarkiln Road in Kingston since 2012. The principal of Captain, Theodore Alexiades ("Alexiades"), acquired the property from James Tassanari ("Tassanari") in September of 2014. One Tarkiln Road consists of two commercial units on the first floor, plus a smaller second-floor unit. McAdams occupied one of the first-floor units where she conducted the bulk of her veterinary practice; she also occupied the smaller second-floor unit, which she used for office space and occasional animal care.

At the time Captain acquired the property, McAdams's monthly rental amount was $1,350.00 for the first-floor unit and $650.00 for the second-floor unit, for a combined monthly total of $2,000.00. Captain began its summary process action by serving McAdams with a fourteen-day notice to quit dated February 16, 2016 for "certain violations of Kingston Zoning and Kennel Bylaws." Those violations, as outlined in a letter from the building inspector, were that McAdams was providing more than routine animal care and was using the second-floor space for other than residential purposes.

At trial, a number of matters were in dispute, not the least of which was whether a written lease existed between the parties. Tassanari testified he had executed a thirteen-page lease agreement with McAdams but was unable to produce the original or a copy. Alexiades was of the opinion there were no written leases with

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the tenants at the time Captain acquired the property, and McAdams produced a four-page lease she maintained was controlling. During the trial, where both sides were represented by counsel, the parties sparred over a variety of issues: whether McAdams was obligated to pay rent while the zoning issue was pending, whether McAdams lost use of some of her space due to smoke damage prior to Captain acquiring the property, whether inadequate snow removal had caused McAdams's practice to suffer, and permissible rent increases. Also in dispute was whether McAdams had ever been informed that the second-floor unit could be used for residential purposes only. Neither side filed proposed findings of fact or conclusions of law at the close of the evidence. As a result, the trial judge was not required to make findings, and did not do so. Mass. R. Civ. P. 52(c). See Memishian v. Phipps, 311 Mass. 521, 523 (1942); General Elec. Capital Auto Lease, Inc. v. Bay State Communications, Inc., 1993 Mass. App. Div. 152.

Because Captain failed to preserve any questions of law for appellate review, its appeal must be dismissed. Captain's principal contention is that the judge was required to make findings demonstrating how he arrived at the damages figure of $8,500.00, relying primarily on Kenney v. Rust, 17 Mass. App. Ct. 699 (1984). In that case, the Appeals Court concluded that Mass. R. Civ. P. 52(a) and Rule 55(b)(2) should be construed to require findings of fact when a judge determines damages following a default judgment. Id. at 705. The need for a hearing in such circumstances is obvious when a plaintiff's claim is not for a sum certain or susceptible of mathematical calculation. Plasko v. Orser, 373 Mass. 40, 43-44 (1977). In the case of a default judgment, where the claim is not for a liquidated amount, a plaintiff is required to establish the extent of its damages. National Grange Mut. Ins. Co. v. Walsh, 27 Mass. App. Ct. 155, 157-158 (1989).

In this case, however, the damages determination was not made at a one-sided hearing after the entry of a default judgment. Rather, the court held a full hearing with sworn testimony, opportunity for cross-examination, and taking of exhibits. Rule 55(b)(2), which applies to the entry of default judgments in the District Court, provides in relevant part that "[i]f, in order to enable the court to enter judgment . . . , it is necessary . . . to determine the amount of damages . . . , the court may conduct such hearings or order such references as it deems necessary and proper." See Bissanti Design/Build Group v. McClay, 32 Mass. App. Ct. 469, 471 (1992) ("If . . . the dispute as to fair value raises issues of credibility, the judge should hold a full evidentiary hearing and not rely on the arguments of counsel.") Here, a hearing was held at the parties' request, and both sides rested without making any further requests.

In the absence of requests for findings, Captain's appeal presents nothing more than its objection to the trial court's general finding and award of damages. For these purposes, we assume the trial judge made his decision on proper subsidiary findings of fact, which are not reviewable on appeal, rather than on any alleged error of law. It is well established that the appeal of a general finding, without more, presents no question for appellate review. True v. American Fidelity Co., 352 Mass. 764 (1967); Butler v. Cromartie, 339 Mass. 4, 6 (1959).

Appeal dismissed.


[Note 1] South Shore Animal Services, LLC.