MIDAMERICA PROPERTIES, LLC v. DIAGNOSIS TREATMENT CENTER, INC. [Note 1]

MURPHY, J. This appeal arises from a commercial summary process action filed in the Palmer District Court. The appellant, Dual Diagnosis Treatment Center, Inc. ("tenant"), appeals from the trial court's denial of its motion to dismiss a summary process complaint and from the subsequent entry of judgment awarding rent and possession to the appellee, MidAmerica Properties, LLC ("landlord"). The sole issue on appeal is whether the tenant possessed the property at the time the summary process eviction was initiated. The tenant claims there was insufficient evidence to find possession, thereby invalidating the trial court's subject matter jurisdiction to hear summary process actions set forth in G.L. c. 239.

Background. We recount the undisputed facts from the record, reserving some for later discussion. The landlord and tenant entered into a written multiyear lease agreement on June 2, 2015 for a three-story commercial space located at 14 Chestnut Place, Ludlow, MA ("property"). Keys to the property were provided by the landlord to the tenant's general contractor, Raymond Houle Construction, Inc. ("Houle"), as an agent of the tenant. They were kept in a lock box affixed to the building's front door in November, 2016. This allowed Houle to begin major renovations. The lock box and keys remained available to the tenant and Houle until at least May 3, 2018. The tenant had awnings installed on the front and back of the building displaying its trade name, Sovereign Health. Other improvements made by the tenant included installation of telecom equipment and security cameras on the property. An entity affiliated with the tenant listed the address as its principal place of business in corporate filings with the Secretary of the Commonwealth.

The tenant made rent payments in accordance with its lease from October, 2015 through November, 2017. It failed to make rent payments from December, 2017 through March, 2018. By letter dated March 20, 2018, the landlord notified the tenant of its default under the lease for failure to pay rent. It demanded payment of the past-due rent balance and reserved its right to pursue remedies at law if full payment was not received within five business days. The tenant responded by letter dated March 22, 2018, claiming that it had never taken possession of the property. In the alternative, it purported to abandon any and all rights to possession of the property. The landlord replied by letter dated April 2, 2018, disputing the tenant's claim

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that it did not currently possess the property and unequivocally rejecting the tenant's attempt to abandon or surrender its interest in it. The tenant made no payments to the landlord for rent or use and occupancy after March 20, 2018.

The landlord served and filed a summary process complaint alleging ownership, and seeking possession and back rent. The complaint was served on April 12, 2018 with an entry date of April 23, 2018. The tenant responded by filing a "motion to dismiss" on April 30, 2018, alleging that it had never possessed the property or, in the alternative, had surrendered possession of the property via its letter dated March 22, 2018. The landlord claims the letter had no legal effect.

The tenant moved to dismiss the summary process complaint pursuant to "Uniform Summary Process Rule 6 and Rule 56, Mass.R.Civ.P." The trial judge held an evidentiary hearing on the motion to dismiss on May 3, 2018 and denied the motion, finding that there was "sufficient evidence to suggest the defendant is in possession of the premises." A bench trial was held on the issues of liability and damages on August 23, 2018. The court awarded judgment to the landlord for possession and back rent in the amount of $1,078,003.99. The tenant filed a timely notice of appeal on September 25, 2018, challenging the sufficiency of the evidence to support a finding of possession.

Discussion. As an initial matter, the tenant entitled its pleading as a "motion to dismiss." It referred to Mass. R. Civ. P. 56 and the standard of law for summary judgment, however, in the body of the motion. The motion essentially claimed the trial court lacked subject matter jurisdiction because the landlord lacked standing to bring the action. Standing is treated as an issue of subject matter jurisdiction. Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998). The motion was supported by an affidavit, and the trial court convened an evidentiary hearing on the issue of possession. We treat the motion as seeking dismissal due to lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1). A judge ruling on such a motion may consider affidavits and other matters outside the face of the complaint. Ginther, supra 322 n.6. Appellate review of a motion to dismiss for lack of subject matter jurisdiction is conducted de novo. 311 W. Broadway LLC v. Board of Appeal of Boston, 90 Mass. App. Ct. 68, 73 (2016). The burden is on the plaintiff to prove jurisdiction-related facts entitling it to bring an action under G.L. c. 239. Pishev v. City of Somerville, 95 Mass. App. Ct. 678, 681 (2019).

The tenant bases its claim that the trial court erred in finding possession at the time the landlord commenced this action on two grounds: first, that the tenant never took possession of the property, and second, that if it did take possession, it relinquished possession under the lease by virtue of its letter of March 22, 2018. Possession of the property by the tenant at the time of commencement of the action is an essential element of a summary process action because "[t]he purpose of summary process is to enable the holder of the legal title to gain possession of premises wrongfully withheld." Wayne Inv. Corp. v. Abbott, 350 Mass. 775, 775 (1966). "[A] claim for possession remains [the] sine qua non" of G.L. c. 239, § 1. Cummings Props., LLC v. Cepoint Networks, LLC, 78 Mass. App. Ct. 287, 289 n.2 (2010). As possession is undefined in G.L. c. 239 and the lease, we turn to other sources to inform our analysis. Possession is defined as: "The fact of having or holding property in one's power; the exercise of dominion over property." Black's Law Dictionary (11th ed. 2019).

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The tenant's first contention on appeal is that it never possessed the property. We disagree. The lease, the validity of which is uncontested, provides that the tenant accepted "possession" as of the "commencement date." The commencement date of the lease was June 2, 2015. Moreover, there is abundant uncontested evidence of possession. The tenant hired Houle as its general contractor to perform a major renovation of the property. Houle had unfettered access to the property from November, 2016 until May 3, 2018 to perform work pursuant to an $890,000.00 construction contract. It obtained keys to the property from the landlord, continued to have access up through May 3, 2018, and had performed major renovations. Keys to the property were not returned to the landlord. Such access and improvements to the property are abundant proof of the tenant's ability to exercise power and dominion over it. The terms of the lease, Houle's access to the property, and performance of substantial improvements to it are undisputed facts from which we conclude the tenant possessed the property at the time the landlord commenced the summary process action.

The tenant's second challenge to possession is that it clearly and unequivocally surrendered and abandoned its leasehold, tenancy, and the property, thereby extinguishing its possession, prior to commencement of the action. We disagree. Under Massachusetts law, a party to a lease may not unilaterally surrender or abandon a leasehold, tenancy, or property. Stavert v. Alden, 2000 Mass. App. Div. 181. Termination requires an affirmative showing that the landlord accepted the tenant's surrender. Id. See Bandera v. Donohue, 326 Mass. 563 (1950) (concluding that tenant's surrender of keys to leased property, written notice of tenant's intent to terminate lease, and landlord's janitor's subsequent use of property as sleeping quarter were insufficient to constitute surrender by operation of law). "Whether there has been a consensual surrender of leased premises upon an implied agreement between a landlord and tenant, or whether there has instead been a simple abandonment of the premises by the tenant, are customarily questions of fact for the trial court." SFP, Inc. v. Hunneman & Co., 1992 Mass. App. Div. 141, 142. In determining what constitutes a surrender, we must decide "whether as matter of law upon the findings made by the judge there were 'any acts which are equivalent to an agreement on the part of a tenant to abandon and on the part of the landlord to resume possession of [the] demised premises [and which] amount to a surrender of a term by operation of law.'" Bandera, supra at 565, quoting Talbot v. Whipple, 14 Allen 177, 180 (1867).

In this case, the landlord did not accept the tenant's unilateral surrender of its rights under the lease as set forth in its letter of April 2, 2018. The keys to the premises were never surrendered by the tenant or its agent, Houle. There is no evidence the landlord reentered the property prior to service of the summary process complaint. There is nothing in the record that circumstantially supports a finding of acceptance by the landlord of the tenant's surrender. Finally, even if the landlord had reentered and taken possession, that would not constitute surrender or termination under the terms of the lease. See art. 18.2(b) of the lease.

We find that the judge's denial of the motion to dismiss was supported by the evidence and his ruling on the issue of the trial court's subject matter jurisdiction was free from any error of law. Judgment for possession and damages is affirmed.