2018 Mass. App. Div. 185

March 9, 2018 - December 18, 2018

Appellate Division Southern District

Court Below: District Court, Brookline Division

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

K. Scott Griggs for the plaintiff.

Ellen Rappaport Tanowitz, Amanda E. Thibodeau and A. Joseph Ross for the defendant.

HAND, P.J. Plaintiff-appellee Hebrew Senior Life, Inc. ("HSL") brought this summary process action against defendant-appellant Sandy Novack ("Novack") in February, 2016, for a failure to pay rent. Novack, who has since vacated the property, was a tenant in a building operated by HSL at 1550 Beacon Street, Brookline, Massachusetts. Novack counterclaimed against HSL on a variety of grounds, including for violations of G.L. c. 186, § 15B, breaches of the implied warranties of habitability and of quiet enjoyment, retaliatory eviction, disability discrimination, and violations of G.L. c. 93A. The case was summary in name only; the parties engaged in protracted discovery and then in motions practice, including two motions by HSL for partial summary judgment, before the case was tried to a jury in late July, 2016. [Note 2] The court allowed part of HSL's first motion for partial summary judgment, and allowed HSL's second motion for summary judgment. At trial, both the jury and the court found for HSL and against Novack. Novack appeals. Although the parties briefed a number of issues in connection with this appeal, and provided us with three volumes of appendices totaling some 865 pages, a significant number of the appellate issues the parties have asked us to decide are not adequately supported in the record. Nonetheless, we address each issue in turn, to the extent possible.

I. Summary judgment against HSL.

During the pendency of this case in the trial court, HSL filed two separate motions for summary judgment, each of which was opposed by Novack before being allowed, in part or in its entirety, by the trial court, and neither of which was included in the record appendices on appeal. By failing to include the pleadings on which the trial court's ruling was based in the record before us, Novack has failed to meet her obligation as an appellant to provide this Division with "'an accurate and complete trial [court] record upon which the issues presented on appeal may be satisfactorily reviewed.' Harvard Univ. v. Goldstein, 1999 Mass. App. Div. 67, 68. See Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 811 (1992); Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995). . . . As an appellant cannot satisfy his burden of establishing trial court error on the basis of a record that omits the trial court

Page 186

evidence and rulings at issue, Revere Hous. Auth. v. Chouchos, 2008 Mass. App. Div. 163, 164; Siegel v. Kepa Homes Corp., 2000 Mass. App. Div. 170, 173, a dismissal of [the] appeal would be warranted on that basis alone." Holyoke Med. Ctr., Inc. v. George, 2011 Mass. App. Div. 30, 32-33. Based on Novack's failure to provide us with the necessary record relating to the court's rulings on HSL's motions for summary judgment, her appeals on those questions are dismissed.

II. Jury instructions.

A. Standard of review.

In reviewing jury instructions given over a party's objection, we use a two-part test, determining "whether the instructions were legally erroneous, and (if so) whether that error was prejudicial." Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 310 (2009), quoting Masingill v. EMC Corp., 449 Mass. 532, 540 n.20 (2007). See Commonwealth v. Wolfe, 478 Mass. 142, 144 (2017). Prejudicial error is error that did or might have affected the outcome of the case. See Commonwealth v. Perrot, 407 Mass. 539, 549 (1990).

B. Novack's requested instructions on presumption for retaliation and reprisal.

Novack appeals the trial court's refusal to instruct the jury that, based on the undisputed fact that HSL served her with a notice to quit within six months of Novack's notifying HSL of her security deposit and other claims against it, HSL's eviction was retaliatory. Novack pleaded retaliation as a counterclaim, but did not raise it as an affirmative defense. [Note 3]

Retaliation, as it relates to summary process actions, is addressed in two statutory provisions, G.L. c. 239, § 2A, and G.L. c. 186, § 18. The application of these laws has been thoughtfully addressed in other cases, including by the Appellate Division in Rothman v. Begley, 2000 Mass. App. Div. 280.

As the Division noted in Rothman:

"The clear Legislative intent to protect tenants in this Commonwealth, who seek to enforce protected rights under health or housing laws, from reprisals by their landlords is codified in both G.L. c. 239, § 2A and G.L. c. 186, § 18. The first statute, G.L. c. 239, § 2A, makes retaliatory eviction a defense in a summary process action. Section 2A applies, inter alia, when a tenant has taken any step

Page 187

to obtain damages under or otherwise enforce, any federal, state or local law, regulation, by-law or ordinance, which has as its objective the regulation of residential premises . . . or reporting a violation or suspected violation of law as provided in section eighteen of chapter one hundred and eighty-six . . . .

"The statute mandates that a Landlord's commencement of a summary process action, service of a notice to quit or significant alteration of the terms of the tenancy within six months of the tenant's action shall create a rebuttable presumption that such summary process action is a reprisal against the tenant for engaging in such activities . . . . Such presumption may be rebutted only by clear and convincing evidence that such action was not a reprisal against the tenant and that the plaintiff had sufficient independent justification for taking such action, and would have in fact taken such action, in the same manner and at the same time the action was taken, even if the tenant had not commenced any legal action, made such report or engaged in such activity."

Id. at 281-282.

Discussing G.L. c. 186, § 18, the Division explained:

"G.L. c. 186, § 18 prescribes monetary penalties against a landlord for such reprisal, and entitles a tenant to file a claim or counterclaim for damages in the amount of not less than one, nor more than three, month's rent, plus costs and reasonable attorney's fees. Like G.L. c. 239, § 2A, G.L. c. 186, § 18 creates a 'rebuttable presumption' that action by the landlord within six months of the tenant's complaint or report was an unlawful reprisal, and mandates that such presumption can be overcome only by 'clear and convincing' proof by the landlord that he had an independent and justifiable basis for his eviction or other actions."

Id. at 282.

The Division then highlighted:

"A principal distinction between the two statutes, however, is that the rebuttable presumption created by G.L. c. 186, § 18 does not arise if the tenancy is terminated, as in the instant case, for nonpayment of rent. Section 18 states, in relevant part:

The receipt of any notice of termination of tenancy, except for nonpayment of rent, or, of increase in rent, or, of any substantial alteration in the terms of the tenancy within six months after the tenant has . . . made such report or complaint . . . shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities [emphasis supplied]."

Page 188

Id. at 282. See Zimbovsky v. Tokar, 2005 Mass. App. Div. 100, 103, citing Rothman, supra at 282 (presumption of reprisal does not apply where basis of eviction is tenant's failure to pay rent).

Here, Novack chose to raise retaliation as a counterclaim. While Novack could have availed herself of the defense of retaliation had she pleaded it as an affirmative defense under G.L. c. 239, § 2A, see Beacon Residential Mgt., LP v. R.P., 477 Mass. 749 (2017) (occupant permitted to assert affirmative defenses to eviction action on behalf of herself and her children where occupant included a defense under G.L. c. 239, § 2A in her proposed answer), she did not do so. As HSL's notice to quit was based on nonpayment of rent, [Note 4] Novack was barred from pursuing a retaliation counterclaim. Rothman, supra at 282. The case Novack cites, Unachukwu v. Mitchell, Boston Housing Court, No. 06-SP-04259 (Feb. 8, 2007), is distinguishable on precisely this difference: there, the tenant "timely filed an Answer asserting defenses and counterclaims for . . . retaliation." Id.

Novack's argument that Mass. R. Civ. P. 8 required the trial judge to correct her "mistake" in identifying a defense as a counterclaim is not persuasive. It is clear from Novack's answer that she intended to bring a counterclaim, with its attendant possibility of damages, and not a defense to the claim of nonpayment. While she may have had a change of heart once the trial was underway, there is nothing in our record to suggest that there was a "mistake" in her pleading to be remedied by the court's changing her use of retaliation from a sword to a shield. Rule 8 is not a life ring for a litigant who makes an unsuccessful strategic decision. See Rule 3 of the Uniform Summary Process Rules ("The defendant shall . . . state in the answer any affirmative defenses which may be asserted and may state any counterclaim permitted by Rule 5 of these rules."); Mass. R. Civ. P. 12(b) ("Every defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required . . . .").

There was no error in the court's refusal to instruct the jury on a defense of retaliation.

III. Novack's motion to amend her counterclaims.

At the conclusion of the evidence, Novack sought, pursuant to Mass. R. Civ. P. 15(b), to amend her counterclaims to include a new claim for breach of contract. [Note 5] The court denied the motion.

"Rule 15(a) of the Massachusetts Rules of Civil Procedure permits a party to amend the pleadings 'by leave of court' 'when justice so requires.' Rule 15(b) allows a party to amend the pleadings to conform to the evidence '[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties.' A judge enjoys considerable discretion in deciding whether to allow or deny a motion to amend a complaint. Murphy v. I.S.K.Con. of New England, Inc., 409 Mass. 842, 864 (1991)." Larkin v. Dedham Med. Assocs., Inc., 93 Mass. App. Ct. 661, 664-665 (2018).

Page 189

The court's ruling on a Rule 15(b) motion to amend will be affirmed absent our conclusion that "the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, see Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008) (citation omitted), such that the decision falls outside the range of reasonable alternatives. See Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 168-169 (2d Cir. 2001); Adoption of Mariano, 77 Mass. App. Ct. 656, 660 (2010)." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

To show that HSL had implicitly agreed to try a breach of contract claim as part of the trial, Novack points to portions of the trial transcript that document her counsel's questions to HSL's witness, Sophia Powell ("Powell"), about HSL's requirement that residents sign a lease, whether the lease HSL used included provisions requiring tenants to respect one another's rights, and about HSL's enforcement of the lease against other tenants. These questions arose from and focused on issues related to Novack's claims of her neighbors' interference with her right to quiet enjoyment. HSL objected to the majority of these questions; even had it not done so, the questions and their answers were not sufficient to show that the parties had tried a breach of contract claim "by implied consent." Mass. R. Civ. P. 15(b).

Considering whether justice required the allowance of Novack's motion, see Mass. R. Civ. P. 15(a), we note that the issues highlighted in the portion of the trial transcript on which Novack relies to show her entitlement to a breach of contract counterclaim did not come to light for the first time at trial. It is clear from the record that Novack's complaints about errant pets, tenants' impermissible smoking, and "disruptive" behavior by other tenants were not only known to her at the time she filed her answer to HSL's complaint, but were central to her defenses and counterclaims. Despite that fact, Novack offers no explanation for her failure to raise a breach of contract counterclaim until after the close of the evidence at trial; this is a factor in our determination that the trial judge did not abuse his discretion in denying the motion to amend. See DiVenuti v. Reardon, 37 Mass. App. Ct. 73, 77 (1994) ("Among the good reasons . . . for which a motion to amend may be denied are that no justification for the lateness of the motion is apparent (beyond counsel for the moving party having had a late dawning idea) and that one or more of the nonmoving parties would be caught off balance by the proffered amendment."). See also Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 290 (1977).

The court did not err in denying Novack's motion to amend her counterclaims to include a breach of contract claim.

IV. Evidentiary issues.

A. Introduction of undisclosed documents.

Novack objects to HSL's use at trial of information she represents that HSL refused to produce in response to her pretrial discovery requests, specifically, HSL's counsel's reference to and Powell's testimony about particular instances of enforcement of HSL's rules on smoking and pets, including the identity of those tenants involved. Here, again, the parties' failure to include in the appellate record the documents supporting their arguments -- in this instance, the substance of the discovery that HSL provided to Novack in response to her discovery requests -- puts us at a disadvantage. The record we have before us includes Novack's interrogatories and document requests to HSL, including a request for a description of "all communications you and your agents had with [Novack] or any other

Page 190

resident regarding the enforcement of building policies, including but not limited to, the policies on pets and smoking." The record also includes HSL's answers and responses to Novack's discovery, each of which refers to numbered documents identified as some thirty-six pages of "Tenant Memos," a "No Smoking Policy," and "the Pet Policy of the Resident Handbook." The documents to which HSL's discovery responses refer, however, are not part of our record. Without them, we cannot discern whether HSL's response included information about its communications, if any, regarding enforcement of the specified policies. Assuming, for the sake of argument, that HSL did not produce the information that it later used in its own case at trial, we consider the court's response. In the case of a discovery violation, a trial judge has broad discretion to determine whether to impose sanctions, including exclusion of the proffered evidence. See, e.g., Commonwealth v. Carney, 458 Mass. 418, 429 (2010). An appellate court "'do[es] not disturb a judge's decision to admit evidence absent an abuse of discretion or other legal error.' Zucco v. Kane, 439 Mass. 503, 507 (2003)." Global Invs. Agent Corp. v. National Fire Ins. Co., 76 Mass. App. Ct. 812, 821 (2010).

First, Novack directs us to HSL's counsel's opening statement, in which he referred to Novack's complaints about her claims that a neighbor was smoking in contravention of building policy, and about the behavior of a particular dog that counsel described as an "emotional support dog." We see no error in the court's allowing HSL's counsel to make these statements. These references were part of an opening statement, and were not evidence. See, e.g., Silva v. Pereira, 1 Mass. App. Ct. 368, 371 (1973), quoting Perry v. Carter, 332 Mass. 508, 509 (1955) (distinguishing between "statement of counsel" and "actual evidence" that may be presented at trial); District Court Civil Model Jury Instruction 2:04 ("The opening statements and the closing arguments of the lawyers are not evidence."). The court explicitly instructed the jury that the opening statements and closing arguments of counsel were not evidence; the jury is presumed to follow the court's instructions. See, e.g., Commonwealth v. Wolfe, 478 Mass. 142, 146 (2017), citing Commonwealth v. Andrade, 468 Mass. 543, 549 (2014), and Commonwealth v. Cline, 213 Mass. 225, 227 (1913) (discussing "long tradition of appellate courts presuming that juries can and will follow a judge's instructions"). Additionally, there is nothing in the record to show that Novack made a timely objection -- or any objection -- to any part of HSL's opening statement. This failure deprived the court of the ability to consider or address any concerns that Novack had. See Abraham v. City of Woburn, 383 Mass. 724, 726 n.1 (1981) ("The purpose of requiring an objection is to afford the trial judge an opportunity to act promptly to remove from the jury's consideration evidence which has no place in the trial."). We find no abuse of discretion in the court's permitting HSL's opening statement to stand.

As to the testimony of HSL's witness about certain enforcement efforts, our record does not show that Novack ever made a clear objection on the grounds of HSL's failure to provide discovery about policy enforcement efforts in the case of any particular tenant.

Novack draws our attention to several of her specific objections:

Powell was permitted to read from the HSL Smoking Policy, which appears to have been produced in discovery. Powell testified, without objection, that Novack's neighbor, Rita, had not been given any of the three warnings permitted under the

Page 191

policy for violations of that policy, and that she had not seen any evidence that Rita was smoking in her apartment. [Note 6] Novack objected, without stating her basis, when HSL's counsel asked whether any current residents at the property were being evicted for smoking in their apartments. The court overruled the objection, and Powell was permitted to testify that one occupant was being evicted for smoking in the apartment. While Powell's testimony could have factored into the jury's assessment of the credibility of Novack's complaints about smoke from Rita's apartment, as it suggested that HSL considered smoking violations to be a basis for eviction, but did not evict Rita after investigating Novack's complaint, in light of Novack's failure to object to Powell's testimony that she had not seen any evidence of Rita's smoking in the apartment, we do not believe that the evidence to which Novack did object would have affected the jury's verdict on Novack's counterclaim.

After the court overruled a separate objection, which we address below, Powell was permitted to testify about Novack's complaint about a neighbor's dog's unwelcome entry into Novack's apartment, the dog-owner's effort to apologize, and Novack's angry and "mean" response to the neighbor's apology. Novack's counsel moved to strike "portions of that testimony," but did not identify which portions she sought to strike, or the basis for the motion. When the court denied the motion to strike, Novack's counsel did not make any further record of her concerns.

The sidebar conferences between the court and counsel are not part of our record. [Note 7] Other than at sidebar, in flagging potential evidentiary or other concerns for the court, counsel simply stated, "objection," or, in one case, moved to strike an unspecified part of a witness's answer for an unspecified reason. [Note 8] Without any clear indication of the portions of the testimony to which Novack objected, or the grounds for the objection, the court did not abuse its discretion in overruling the objection.

In questioning Powell about Novack's neighbor's dog, Meadow, and Meadow's unleashed and unwelcome entry into Novack's apartment, Powell testified that Meadow's escape and intrusion into Novack's home was not "acceptable" to HSL. She was also permitted to testify, over Novack's nonspecific objection, that the dog-owner's response, apologizing to Novack, was "an appropriate way to resolve

Page 192

the issue," and that the owner's providing training for the dog was "an appropriate compromise." The court sustained Novack's objections to questions asking whether Powell thought Novack's view that the dog should be required to leave the property was a "heavy-handed response" or not "justified." This evidence, too, could have suggested that HSL found Novack's conduct unreasonable. Given the ample evidence that HSL did view many of Novack's complaints that way, however, there is little risk that the admission of this particular evidence would have affected the outcome of the trial.

B. The Yardi system.

Novack objected to HSL's admission of the verbatim language of two entries made into its management software system, "Yardi," on the grounds that the information was inadmissible hearsay. At trial, HSL's witness, Powell, testified that she is the record-keeper for Center Communities of Brookline ("CCB"). [Note 9] Powell testified that CCB uses a management software system called "Yardi" to keep notes of employees' day-to-day events, and that employees make those notes in the Yardi system in the ordinary course of business. Although it did not move to admit the Yardi document itself, HSL had Powell read two Yardi entries, one dated April 17, 2015, before suit was filed, and a second entry dated March 7, 2016. Novack objected in each instance, arguing that even if the entries were business records, they included multi-level hearsay.

We begin with our determination that certain of the Yardi entries were, in fact, business records. [Note 10] In order to establish that a document qualifies under the business record exception to the hearsay rule, its proponent must establish that the document (1) was made in good faith, (2) was made in the regular course of business, (3) was made before the beginning of the litigation, and (4) that it was the regular course of the business to make the document at the time of the event, or within a reasonable time thereafter. See G.L. c. 233, § 78; DiMarzo v. American Mut. Ins. Co., 389 Mass. 85, 105 (1983); Mass. G. Evid. § 803(6)(A) (2018). "Documents meeting these requirements are presumed reliable because they are routinely made by those charged with the responsibility of making accurate entries and are relied on in the course of doing business. Beal Bank, SSB v. Eurich, 444 Mass. 813, 815 (2005), citing Wingate v. Emery Air Freight Corp., 385 Mass. 402, 406 (1982)." ANJ Corp. v. Ross, 2014 Mass. App. Div. 12, 15.

As to hearsay within a business record, however, it is clear that a document's qualification as a business record does not automatically render admissible second-level hearsay included within that record. See, e.g., Commonwealth v. Gil , 393 Mass. 204, 218 (1984); Bouchie v. Murray, 376 Mass. 524, 527 (1978) (in context of admissibility of hospital records, G.L. c. 233, § 79). The admissibility of hearsay-within-hearsay depends on the proponent's ability to show that "each part of the combined statements conforms with an exception to the rule in accordance with the common law, a statute, or a rule of court." Mass. G. Evid. § 805 (2018).

Page 193

HSL properly qualified the first entry, dated April 17, 2015, before suit was filed, as a business record. The entry described Powell's receipt of a voicemail from Novack reporting that Meadow, a dog owned by Novack's neighbor, Clarice, had run into Novack's apartment, frightening Novack. The entry included reference to Meadow's trainer's instruction to Clarice not to chase the dog, a description of the conversation between Novack and Clarice, brokered by Powell in an effort to respond to Novack's complaint, and which Powell herself heard, and a description of Clarice's response to her conversation with Novack. Novack's statements were admissible as statements of a party opponent. See, e.g., Commonwealth v. Spencer, 465 Mass. 32, 46 (2013) ("An extrajudicial statement made by a party opponent is an exception to the rule against the introduction of hearsay, and is admissible unless subject to exclusion on other grounds. See Commonwealth v. Allison, 434 Mass. 670, 676 n.5 (2001); Mass. G. Evid. § 801(d)(2)(A) (2012)."). The substance of the trainer's instruction was hearsay, but was not offered for its truth and was, in any event, inconsequential. See Jasper v. Worcester Spinning & Finishing Co., 318 Mass. 752, 759-760 (1945) (where evidence admitted erroneously, but harmlessly, any error in its admission is harmless). The statements attributed to Clarice in response to Novack's "yelling at" her were not offered for their truth, and so were not hearsay; the purpose in their admission was simply to show the effect on her of the conversation between herself and Novack.

Based on the timing of its creation, after litigation in this case was underway, the second entry dated March 7, 2016, was not admissible as a business record. That entry described Powell's conversation with Novack's neighbor, Rita, about Rita's leaving her apartment door open to the common hallway. As related above, Novack had complained of unwelcome fragrances and odors emanating from Rita's apartment. The entry described Rita's telling Powell that the door was left open only "a crack" as a means of ameliorating her "depression and claustrophobia." The entry also indicated that Rita had stopped listening to music "because of her neighbor's complaints." The admission of the substance of this entry was error, and may have cast Novack as a cranky neighbor. Novack's evidence, however, amply contradicted it: as to whether the neighbor's door was open, the neighbor's music was audible outside her own apartment, and any smells came from the apartment, both Novack and her witness, A. Joseph Ross ("Ross"), indicated the contrary. Novack was clear in testifying consistent with the allegations in her counterclaims; Ross testified to the effect that Rita's door was "frequently open" when Ross visited Novack at her apartment, and that "[he had] seen it wide open on more than one occasion," that Ross had "sometimes heard music coming from that apartment" and that Ross had "smelled fragrances" as he passed the apartment. Ross also testified that he "frequently" heard barking when passing the apartment in which the dog, Meadow, lived, and that he "[didn't] think the dog ever stopped barking." Novack's concerns that the Yardi entry painted her as a "miserable person" or "unreasonable" are balanced by the fact that the jury heard Novack herself testify to the very issues identified in the disputed Yardi entry. The jury was in an excellent position to determine whether Novack's complaints were justified or not. Any error in the admission of the March 7, 2016, Yardi entry was not prejudicial. Id.

C. Novack's e-mails.

Page 194

At trial, Novack sought to admit twenty-nine pages of e-mails, which she sent or received on dates between 2011 and 2014. As Novack represents, the e-mails generally discuss Novack's organization of and participation in community activities; the tone of the messages is positive. The court sustained HSL's objection on the ground that the e-mails were irrelevant. Novack's counsel made an offer of proof at sidebar; that sidebar is not part of our record, and the parties have not reconstructed it. See Dist./Mun. Cts. R. A. D. A. 8C(e).

Like the trial judge, we see little or no relevance to the proffered e-mails. To the extent that Novack claims that she was prejudiced by the exclusion of the e-mails as evidence of her past willingness to participate in community activities and to support her claims that she was later unable to participate in similar activities due to the conditions at the building and HSL's failure to address them to her satisfaction, Novack was not prejudiced by their exclusion; she presented testimonial evidence on those points. In the course of cross-examining Gail Doane ("Doane"), HSL's resident services coordinator and program director at Novack's building, Novack's counsel elicited, over HSL's objection, Doane's testimony about Novack's volunteer efforts, including her work on a property newsletter, her initiation and running of the Friends With Connections group at the property, and her volunteering to visit "shut-ins" at the property. Even if the excluded e-mails were relevant and admissible (a point that we do not decide), the decision to exclude them was not likely to have had any impact on the outcome of the case and was not prejudicial error.

D. Preclusion of expert testimony.

HSL filed its complaint in this action on February, 2016. Novack filed her answer, including her counterclaims that HSL's failed to ventilate to her satisfaction areas of the building under renovation, on March 7, 2016. The parties served discovery on one another promptly, and the court heard HSL's motion to compel discovery, allowing it on May 6, 2016. On June 10, 2016, HSL filed a motion in limine to preclude testimony about "proposed reasonable accommodations," apparently based on Novack's failure to identify an expert witness to support her counterclaim on that issue. The court allowed the motion in limine on June 14, 2016. Novack did identify an expert witness, Jeff May ("May"), to testify on "the science behind off-gassing volatile organic compounds and the like," but not until nine days before the July 28, 2016, trial date. On the day of trial, HSL objected to May's testimony, claiming prejudice in the timing of HSL's witness disclosure. The court, noting that the case had been pending, and Novack's environmental claims known to her for "months," allowed the motion to preclude Novack from offering May's testimony. Without an expert witness, Novack could not prove her counterclaims based on HSL's conduct of renovation work and ventilation issues in the building.

"The conduct and scope of discovery is within the sound discretion of the judge." Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 799 (1987). "'Trial judges have "broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial. . . . Within this discretion lies the power to exclude or deny expert testimony . . . and to exclude testimony of witnesses whose use at trial is in bad faith or would unfairly prejudice an opposing party."' Nally v. Volkswagen of Am., Inc., 405 Mass. 191, 197 (1989), quoting Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980)." Tri-County Contrs. v. Diamond Collision Specialists, Inc., 2014 Mass. App. Div. 89, 90. See Elias v. Suran, 35 Mass. App. Ct. 7, 10 (1993)

Page 195

(discussing trial court's discretion in deciding whether to permit expert testimony where proponent has not given proper notice of identity of expert or subject matter of testimony). We review both the court's determination that a sanction is required, and the appropriateness of the sanction itself, for abuse of discretion. Tri-County Contrs., supra, citing Mattoon v. City of Pittsfield, 56 Mass. App. Ct. 124, 131-132 (2002).

This is a summary process case. As Novack points out, summary process actions follow an expedited litigation track, although in this case, the court extended the time between the case's inception and its trial in recognition of the number and nature of Novack's several counterclaims. See Rule 1 of the Uniform Summary Process Rules ("These rules and, where applicable, the Massachusetts Rules of Civil Procedure, shall be construed and applied to secure the just, speedy, and inexpensive determination of every summary process action."); Commentary to Rule 1 ("These rules seek to reconcile two competing principles. The first is that time is of the essence in eviction cases. This is based on the notion that real estate constitutes unique property and that because it generates income, time lost in regaining it from a party in illegal possession can represent an irreplaceable loss to the owner. The Legislature clearly recognized these factors in creating a special chapter of the General Laws establishing a 'summary' procedure. The other principle involved is the unique and fundamental need of tenants for dwellings that are habitable and secure."). Novack's counterclaims, including the environmental claim to which May's testimony would have related, were known to Novack from the outset, as were the details of the bases of those claims. Novack was or should have been aware of the technical nature of her counterclaim at the time that she brought the claim and of the fact that she would need expert testimony to support it. The fact that Novack had some five months within which to identify the expert witness that her counterclaim clearly required, and that she failed to do so until days before the trial date, satisfies us that the court acted within its discretion in issuing a sanction.

We go on to consider whether another sanction, such as continuing the trial to allow HSL to plan its response to May's proposed testimony, would have been more appropriate than excluding May's testimony entirely. We find the protracted (in summary process terms) course of the litigation, including several continuances of the trial date, to be significant. In light of the clear prejudice that would have attached had HSL been required to go to trial with only nine days' notice of Novack's expert, we see the court's decision not to allow May to testify as likewise appropriate. Although the court was not required to exclude Novack's expert, there was no abuse of discretion in his choice to do so.

Novack's argument that at trial the court allowed HSL to present lay testimony on points that it indicated Novack would be required to offer expert testimony may go to the propriety of the court's rulings on the evidence HSL was permitted to present, but does not transform the court's earlier, proper sanction for Novack's late disclosure of May's expert testimony into reversible error.

E. Propriety of certain lay witness testimony.

HSL's opening statement referred to its expectation that the evidence would show that in connection with the renovation of the first and third floors of the building in September, 2014, Novack, a resident of the eighth floor, complained "a lot" "because of her multiple chemical sensitivities, and perhaps because she just doesn't like

Page 196

the smell of the new carpeting or whatever . . . adhesives were used." Counsel represented that Novack demanded that "the area be vented," and that HSL opened the patio doors despite the December cold and that "they did what they could to air out the third floor," but were unable to open doors on the first floor based on security concerns, and that although Novack might represent that she sent a letter from her doctor in support of her requests for more aggressive ventilation efforts, HSL never received such a letter.

Powell's direct testimony included her explanation of the scope and timing of carpet renovations performed in September, 2014. Powell testified that she did not notice any "chemical smells" during the renovations. She testified that Novack asked for "material safety data sheets" for the renovations, and that she provided them. Nothing in this portion of Powell's testimony called for an expert. Shortly thereafter, Powell testified that she asked the carpet manufacturer about "the chemical smells," [Note 11] and that the manufacturer replied by letter. The court did not err in allowing Powell to read a part of the letter into the record; the letter was not offered for its truth, but for the nonhearsay purpose of showing the reason for Powell's conclusion that HSL's ventilation efforts were reasonable. See Turiello v. City of Revere, 15 Mass. App. Ct. 185, 189 (1983) (in architectural contract dispute, out-of-court statement by clerk of works that stapling was preferable method of adhesion not hearsay when admitted to show that substitution of one fastening method for another "was the product of a considered decision rather than neglectful supervision by the plaintiff"); Alexander v. CIT Tech. Fin. Servs., 217 F. Supp. 2d 867, 881 (N.D. Ill. 2002) (letter inadmissible to show that in fact collection company's employee was rude to debtor with whom she interacted and called debtor a "trailer trash motherfucker," but it is admissible to show a basis for employer's belief that employee was rude and used profanity with customers); Mass. G. Evid. § 801(c) and notes. Novack could have asked for an appropriate limiting instruction to inform the jury of the limited purpose for which that evidence could be used, see Mass. G. Evid. § 105 ("If the court admits evidence that is admissible against a party or for a purpose -- but not against another party or for another purpose -- the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly."), but did not do so.

Over Novack's objection, Powell was permitted to testify to her understanding that the statement included in the manufacturer's letter, "an article is further defined as a manufactured item which does not release or otherwise result in exposure to a hazardous chemical under normal conditions of use," meant to Powell that "under normal conditions, . . . [the carpet] doesn't emit any . . . odors or cause any hazardous [sic]." This was not expert testimony; it was Powell's explanation of why she believed that HSL's efforts at ventilation were adequate. Novack could have asked for an appropriate limiting instruction, see id., but did not do so. Additionally, that information followed Powell's reading into the record, without objection, portions of a letter that she wrote to Novack's counsel, including the following, "It is my understanding that finished carpeting is excluded from OSHA's

Page 197

hazardous communication standard in regards to [material safety data sheets]." See Commonwealth v. Perrot, 407 Mass. 539, 549 (1990) (whether error is harmless depends on factors including "whether the 'erroneously admitted evidence was "merely cumulative" of evidence properly before the jury.' Commonwealth v. Sinnott, 399 Mass. 863, 872 n.8 (1987)"). In any event, we do not see that its introduction could have changed the outcome of the case for Novack. HSL's remaining efforts to have Powell testify about the adequacy of HSL's response to Novack's complaints about the carpet smells were frustrated by Novack's timely and successful objections.

F. Video deposition of Dr. Christiani.

1. Testimony on manufacturer's letter.

The final witness in the case was one of Novack's treating physicians, Dr. Christiani ("Christiani"), whom Novack presented using the witness's earlier videotaped deposition. [Note 12] The lack of clarity in the trial transcript about what portions of Christiani's deposition testimony were actually offered and excluded, the parties' failure to clearly identify on the trial record the identity and the substance of a letter that appears to have been the basis or object of the proposed expert testimony, and the absence from our record of any portion of the deposition transcript itself leave us at a marked disadvantage in analyzing Novack's argument on this issue. [Note 13] We rely on the briefs and what we can discern from the trial transcript to address this aspect of Novack's appeal.

Novack states, and HSL does not appear to dispute, that she was not permitted to present Christiani's answer to the question, "So is your understanding from this letter that hazardous chemicals do not release after the carpet has been installed?" From what we can make of the trial transcript, Novack sought to introduce the disputed evidence to discredit the carpet manufacturer's claim that the carpet to which Novack objected complied with OSHA requirements. The court sustained the objection for reasons including the fact that the case did not turn on OSHA compliance and the judge's determination that Christiani was not qualified to testify on the toxicity of carpets, particularly carpets that he had never sampled or seen. The court did not err in excluding this statement.

"The admission of expert testimony is 'largely within the discretion of the trial judge and will be reversed only where it constitutes an abuse of discretion or error of law.' Commonwealth v. Pikul, 400 Mass. 550, 553 (1987). See Commonwealth v.

Page 198

Richardson, 423 Mass. 180, 183 (1996); Commonwealth v. Goetzendanner, 42 Mass. App. Ct. 637, 642 (1997)." Adoption of Hugo, 428 Mass. 219, 232 (1998).

Christiani's resume was marked as a trial exhibit, and the parties stipulated to "qualification." The stipulation is not set forth any more specifically in the record, but Christiani's ninety-page curriculum vitae indicates that in addition to a medical degree and board certification in internal medicine, preventative medicine, and pulmonary disease, he holds a master's degree in public health, specializing in occupational and environmental medicine and a master's degree in physiology. Christiani's resume also documents his extensive teaching experience and hundreds of publications, the bulk of which appears to focus on the effects of occupational and environmental factors on human health. It is not clear from a review of the trial transcript or Christiani's resume what experience, if any, Christiani has in the area of assessing the toxicity of carpeting or the materials used in residential renovation work or for determining whether and when "hazardous chemicals . . . release after [a] carpet has been installed."

Novack's counsel told the court that although Christiani had not seen or sampled the carpet, he could rely on "[h]is experience of what carpets . . . are made of." In her brief, Novack objects that HSL's witness, Powell, was permitted to testify "about the toxicity of the carpet" but the court "did not allow . . . Dr. Christiani . . . to do the same." Understanding from this that the opinion at issue was about the toxicity of the carpet, and not about the effects of any particular toxin on Novack, on the record before us, we agree that Novack failed to demonstrate that Christiani was an expert qualified to provide it. Christiani's record might well establish him as an expert in a variety of areas, but we do not see the toxicity of a particular carpet, or even of carpets in general, to be one of them.

To the extent that the question asked Christiani to opine on issues of OSHA compliance, or on whether hazardous chemicals release after a carpet (or the specific carpet at issue here) is installed, the court was within its discretion to exclude it on the basis that Christiani was not qualified as an expert on that topic.

As to the admissibility of the testimony for the purpose of rebutting HSL's evidence about the manufacturer's letter, Christiani's testimony about his understanding of what the letter meant would not refute Powell's testimony on the same topic, given the limited purpose for which Powell's testimony on the issue was offered.

2. Mass. R. Civ. P. 30A.

Novack argues that the court erred in excluding parts of Christiani's deposition testimony based on HSL's failure to make objections at the time of the deposition [Note 14] as required under Mass. R. Civ. P. 30A(m)(4): "When an audio-visual expert witness deposition for trial is taken, all evidential objections shall, to the extent practicable, be made during the course of the deposition. . . . Objections not so submitted shall be deemed waived . . . ." These provisions apply only where a party deposes its own expert witness, not where the opposing party conducts a discovery deposition of that witness. Mass. R. Civ. P. 30A(m)(1) ("This rule 30A(m) does not apply to

Page 199

another party's treating physician or expert, discovery from whom is subject to the provisions of Rule 26(b)(4)(A) or 26(b)(4)(B)."). The trial transcript indicates that the parties intended Christiani's deposition to be "both" a discovery deposition and an expert deposition for use at trial. Given the parties' decision to hybridize the deposition, we find no error in the trial court's failure to apply the strict requirements of Rule 30(m)(4) here.

V. Trial court's obligation to rule on G.L. c. 93A claim.

The trial judge reserved Novack's G.L. c. 93A counterclaim to himself. The trial transcript shows that Novack filed timely requests for findings of fact and rulings of law as to that claim, Mass. R. Civ. P. 52(c), which the court accepted. The court ultimately entered judgment for HSL on Novack's c. 93A counterclaim, but did not make any findings or rulings. Novack argues that this Division is required to determine de novo her entitlement to recovery on her c. 93A claim. We disagree.

"Rule 52(c) of the Massachusetts Rules of Civil Procedure provides that in all actions tried without a jury, 'the court shall find the facts specially and state separately its conclusions of law thereon, provided that any party submits before the beginning of any closing arguments proposed findings of fact and rulings of law' (emphasis added). The requirement of findings and rulings under Rule 52(c) applies to all District Court cases 'traditionally considered tort, contract, replevin or equity actions, except small claims actions.' Rule 81(a)(2). While summary process trials do not fall within the aforementioned list, 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. The obligation of the court to make findings of fact and rulings of law following a timely request is then made applicable to summary process cases. See 2008 Reporter's Notes to Mass. R. Civ. P. 52."

Federal Home Loan Mtge. Corp. v. Bartleman, 2017 Mass. App. Div. 41, 46. The trial court's failure to make findings and rulings under the circumstances here was reversible error. See Schrottman v. Barnicle, 386 Mass. 627, 638 (1982) (remanding where Superior Court judge did not make findings under Mass. R. Civ. P. 52(a)); Montanez v. Bagg, 24 Mass. App. Ct. 954, 955 (1987) (Housing Court judge required to make Rule 52(a) findings on reserved G.L. c. 93A claim). We do not decide Novack's entitlement to recovery under G.L. c. 93A de novo, as she argues that we should. Instead, given the retirement of the original trial judge, we return this claim only to the trial court for a new trial.

VI. Novack's request for fees and costs.

Given our ruling with respect to her G.L. c. 93A claim, any request for costs and fees as to that claim is returned to the trial court for consideration after retrial. Novack's requests for appellate costs and fees is denied.

The portion of the judgment adjudicating the defendant's G.L. c. 93A claim is vacated, and that claim is returned to the trial court for a new trial. The judgment is otherwise affirmed.


[Note 1] As officer of or agent for H.R.C.A. Housing for the Elderly, Inc.

[Note 2] As we will discuss below, the court reserved the G.L. c. 93A claim to itself.

[Note 3] Novack's response to HSL's complaint is her "Answer and Counterclaim." After the "answer" section of that document in paragraphs 1 through 5, paragraphs 6 through 37 are entitled, "Defenses and Counterclaims." In the seven "counts" that follow, Novack does not identify which she presents as counterclaims and which as defenses. Count V, "Retaliation," claims, without citation, entitlement to "a presumption of retaliation" based on the timing of the notice to quit relative to the date of Novack's complaints about "issues at the Premises," and to "damages, plus reasonable attorneys' fees and costs." Novack's argument on appeal that, because she did not cite to any statute in bringing "Count V: Retaliation," the court erred in interpreting that count as a counterclaim, rather than as a defense, is not tenable. If only based on Novack's claim for damages, costs, and attorney's fees, Count V is indisputably a counterclaim.

[Note 4] Novack does not raise the issue of whether her withholding rent was permitted under G.L. c. 239, § 8A, and if so, whether her lawful withholding of rent would eliminate the bar against G.L. c. 186, § 18 counterclaims in nonpayment-of-rent cases. Accordingly, we do not address it. Dist./Mun. Cts. R. A. D. A. 16(a)(4) ("The Appellate Division need not pass upon questions or issues not argued in the brief.").

[Note 5] Neither the motion nor the opposition to it is included in the appellate record.

[Note 6] Novack's counterclaims incorporated claims that Rita's use of products with "fragrances" irritating to Novack, and Rita's smoking, interfered with Novack's health and enjoyment of her property. Taken as a whole, the evidence at trial suggested that Rita had not smoked in the building.

[Note 7] The substance of the sidebar conferences held during the trial are not part of the transcript included in our record. In her brief, Novack represents that during those conferences, the court used both the white-noise effect included in the court's recording system, but also a white-noise application through the judge's phone. Novack says that "[a]t side-bar, counsel objected to a number of evidentiary issues," but does not specify what those issues were. While we accept that as Novack states, her counsel was unaware that the sidebar conferences were not able to be picked up by the recording system, we are unaware of any effort that she made to reconstruct those portions of the record in a way that would provide us with more insight on the specifics of counsel's objections. See Dist./Mun. Cts. R. A. D. A. 8C(e).

[Note 8] The motion to strike appears to be a renewal of Novack's objection on hearsay grounds to HSL's witness's testimony.

[Note 9] The record does not provide detail on the relationship between HSL and CCB. Based on Powell's testimony that as CCB's property manager, she is responsible for three properties, including 1550 Beacon Street, Brookline, the building in which Novack rented, we understand CCB to be a subsidiary to HSL.

[Note 10] As discussed below, we do not include the March 7, 2016 entry in this category.

[Note 11] Novack objected to HSL's question about whether any tenants other than Novack complained about chemical smells emanating from the new carpet. The objection was sustained, and we have no evidence of any other observations about those smells.

[Note 12] In an effort to distill Christiani's three-hour deposition into a more manageable presentation for the jury, the parties showed the jury the beginning of the videotaped deposition in the courtroom, in order to give the jury a sense of the witness's presentation, then read from the transcript those portions of Christiani's testimony that they chose to introduce.

[Note 13] As well as we can discern from the trial transcript, the parties agreed that a carpet installer or manufacturer responded to a request for MSDS on some carpet used in Novack's building by referring to OSHA compliance in some fashion. It is not clear from the transcript what the opinion testimony was that the court precluded Christiani from testifying to, although trial counsel indicated that "it is within the scope of [Christiani's] expertise to comment on what typical carpets are, and do, and omit [sic]."

[Note 14] We do not have a transcript of that testimony, so cannot assess the accuracy of Novack's claim that HSL "raised no evidentiary objections," but note that HSL appears to agree that it did not raise any such objections during Christiani's deposition.