2018 Mass. App. Div. 59

November 3, 2017 - March 20, 2018

Appellate Division Southern District

Court Below: District Court, Stoughton Division

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

David V. Flaherty for the plaintiff.

William J. Logan for the defendant.

WELCH, J. In an attempted end run around a Probate Court judgment in equity granting title to her former husband, plaintiff Nasir Bhatti ("Bhatti"), defendant Ayesha Afzaluddin ("Afzaluddin") appeals from an adverse summary judgment decision and the dismissal of her counterclaims in District Court. By way of background, in 2002, Bhatti purchased a property located at 17 Ridge Hill Road, in Canton. [Note 1] The parties resided at the property until 2006, and in February, 2010, Afzaluddin gained sole and exclusive possession of the property. In 2012, Bhatti was granted an annulment from Afzaluddin on the ground of fraud. On November 5, 2014, Bhatti obtained a judgment on a verified complaint in equity in the Norfolk Probate Court whereby the court ordered Afzaluddin to vacate the property within ten days of the order. The judgment was thereafter recorded at the Norfolk County registry of deeds. At no time did Afzaluddin pay any moneys for rent, use and occupancy, or directly to the mortgage company, and there is no evidence of any payments for utilities, insurance, or taxes. Notwithstanding the Probate Court order, Afzaluddin refused to vacate the property, resulting in Bhatti serving a notice to quit on August 31, 2015. A summary process complaint was filed in the Stoughton District Court. While the summary process case was pending, Afzaluddin sought relief from judgment in the Probate Court, which was denied. [Note 2] Afzaluddin then appealed the Probate Court decision, which appeal is currently pending. The Stoughton summary process action was resolved by a summary judgment wherein the court found for Bhatti on the ground that

Page 60

Afzaluddin had failed to comply with the Probate Court's existing order to vacate the property. [Note 3] Subsequent to the motion for summary judgment, Bhatti moved for entry of judgment and dismissal of Afzaluddin's counterclaims, which was granted. [Note 4]

Afzaluddin identifies the first issue on appeal as "whether or not the Appellant is entitled to have her defense to possession heard by a jury regarding her appeal of the original judgment [by the Probate Court] granting the Appellee ownership of the property in question." In essence, Afzaluddin argues that she was entitled to have a jury in the District Court review the Probate Court's judgment against her.

A court will grant summary judgment where there are no genuine issues of material fact and where the record, including the pleadings and affidavits, entitles the moving party to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, and showing that it is entitled to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts that would establish the existence of a genuine issue of material fact in order to defeat a motion for summary judgment. Id. at 17, citing O'Brion, Russell & Co. v. LeMay, 370 Mass. 243, 245 (1976). A party opposing summary judgment "cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment." LaLonde v. Eissner, 405 Mass. 207, 209 (1989), citing Community Nat'l Bank v. Dawes, 369 Mass. 550, 554 (1976). Summary judgment motions may be accompanied by affidavits based on personal knowledge that set forth such facts as are admissible in evidence. Mass. R. Civ. P. 56(e). The court, for purposes of summary judgment, will review such facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party. Ford Motor Co. v. Barrett, 403 Mass. 240, 242 (1988), citing Coveney v. President of the College of the Holy Cross, 388 Mass. 16, 17 (1983). The grant of summary judgment is reviewed de novo to determine whether, in the light most favorable to the nonmoving party, the undisputed material facts establish that the moving party is entitled to judgment in its favor as a matter of law. Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800, 804 (2014), citing Miller v. Cotter, 448 Mass. 671, 676 (2007); Skyhook Wireless, Inc. v. Google Inc., 86 Mass. App. Ct. 611, 618-619 (2014).

Afzaluddin provides no authority in support of the premise that a District Court has jurisdiction to contest a Probate Court equitable order. Afzaluddin attempts, unsuccessfully, to equate a property acquired in foreclosure to that of a property acquired by order of the Probate Court in equity. "The probate courts of this Commonwealth are courts of superior and general jurisdiction," Farquhar v. New England Trust Co., 261 Mass. 209, 212 (1927), with general equity jurisdiction. G.L. c. 215, § 6. The Probate Court's jurisdiction includes the authority to decide property matters between persons who have been divorced. See G.L. c. 215, § 6. "Decrees of probate courts in matters of probate, within the authority conferred upon them by law, are conclusive upon the courts of common law, and cannot be reversed by writ of error or certiorari. . . . Nor

Page 61

can they be set aside in equity, even for fraud." Farquhar, supra at 213, quoting Waters v. Stickney, 94 Mass. 1, 3 (1866). Authoritative decisions in support of this premise are numerous. See id. Bhatti was granted an annulment of the marriage and, as such, the Probate Court was the proper venue for the division of marital assets. The Probate Court decision has been appealed by Afzaluddin, and no stay of proceedings has been issued. In cases of equity, such as the Probate Court matter, an appeal from a final order or decree in equity of a Probate Court made in the exercise of any jurisdiction in equity shall not suspend or stay proceedings under such order or decree pending appeal. See G.L. c. 215, § 23. [Note 5]

Afzaluddin also claims error by the trial court in dismissing her counterclaims and not allowing her to argue the allegedly poor condition of the property to a jury. Afzaluddin references G.L. c. 239, § 8A, in support of her claim that there was a question of fact as to the condition of the property and she was entitled to have a jury trial on that issue. [Note 6] The court found that Afzaluddin was a tenant at sufferance and

Page 62

dismissed her counterclaims and defenses. What little there is in the record supports our conclusion that Afzaluddin never paid rent (as she was a co-owner for much of her stay at the property) and, after the Probate Court decision, was, at best, a tenant at sufferance. Relying on Hodge v. Klug, 33 Mass. App. Ct. 746 (1992), Afzaluddin argues that as a tenant at sufferance, as occupant, she may assert a conditions defense under G.L. c. 239, § 8A. In a remarkably similar case to the present appeal, the Appeals Court in Deutsche Bank Nat'l Trust Co. v. Gabriel, 81 Mass. App. Ct. 564, 572-573 (2012), further clarified the rights of tenants at sufferance. In that case, the Appeals Court stated:

"[The occupants'] argument, however, ignores the critical distinction that, in Hodge, the premises had previously been rented to the defendant in a tenancy at will, rent payable monthly in advance. After a number of years, the owners decided to sell the property and served notice to quit on the tenant, who thereafter refused to leave. A summary process action ensued, and on appeal the court held that § 8A defenses are not limited to tenants under a lease or tenants at will, i.e., acknowledged tenants, but can be available to 'occupants,' including tenants at sufferance. Id. at 754. Hodge does not stand for the proposition that § 8A defenses are available where the premises have never been leased or rented, as is the case here. Instead, it stands for the proposition that a person who is entitled to assert defenses under G.L. c. 239, § 8A, does not lose that entitlement by later becoming a tenant at sufferance."

Id. at 572-573.

Like the occupant in Gabriel, Afzaluddin has never been a tenant, had a lease, or paid any rent or utilities. Afzaluddin is entitled neither to the protections of G.L. c. 239, § 8A, [Note 7] nor to present such defense to a jury.

The grant of summary judgment to Bhatti and the dismissal of Afzaluddin's counterclaims are affirmed.


[Note 1] There is no reference in the record to Afzaluddin's ownership interest in the property, whether it was exclusively in Bhatti's name, as joint tenants, or as tenants by the entirety. However, as the Probate Court decision orders Afzaluddin to convey to Bhatti all her rights, title, and interest in the property, it is reasonable to infer she had some ownership interest in the subject property.

[Note 2] In the motion for relief from judgment, the Probate Court found, "The Defendant [Afzaluddin] chose not to appear in Court or cooperate in any way. Instead, she and her family members would not vacate the residence that the Plaintiff purchased and paid to maintain. She also refused to cooperate with the Court Clinician who went to her residence to try to perform a mental health evaluation."

[Note 3] There is no mention in the record of Bhatti seeking a finding of contempt in the Probate Court.

[Note 4] The court found that Afzaluddin had sole and exclusive use of the subject property and was a tenant at sufferance.

[Note 5] General Laws c. 215, § 23 states as follows:

"An appeal from a final or interlocutory order or decree in equity of a probate court made in the exercise of any jurisdiction in equity shall not suspend or stay proceedings under such order or decree pending the appeal. But the probate court or a justice of the supreme judicial court, in case of such appeal, may stay all proceedings under such order or decree and make necessary or proper orders to protect the rights of persons interested pending the appeal; and any such order of the probate court for a stay of proceedings or for protection of any such rights may be varied or discharged by a justice of the supreme judicial court upon motion, and shall not be otherwise subject to an appeal."

[Note 6] General Laws c. 239, § 8A states, in part:

"In any action under this chapter to recover possession of any premises rented or leased for dwelling purposes, brought pursuant to a notice to quit for nonpayment of rent, or where the tenancy has been terminated without fault of the tenant or occupant, the tenant or occupant shall be entitled to raise, by defense or counterclaim, any claim against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law."

The statute goes on to state:

"Whenever any counterclaim or claim of defense under this section is based on any allegation concerning the condition of the premises or the services or equipment provided therein, the tenant or occupant shall not be entitled to relief under this section unless: (1) the owner or his agents, servants, or employees, or the person to whom the tenant or occupant customarily paid his rent knew of such conditions before the tenant or occupant was in arrears in his rent . . . ."

[Note 7] Even if we were to decide that Afzaluddin could advance such a counterclaim, there is nothing in the record in the summary judgment motion, other than unattested-to assertions, that there was a disputed issue of fact as to the condition of the property. A party opposing summary judgment "cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment." LaLonde, supra at 209.