ROCCO VIGORITO v. FMCI, LLC

CRANE, J. The commercial tenant appeals from the denial of its motion to dismiss because of a prior pending action between the same parties in the Superior Court as well as from an award of attorney's fees. We affirm.

A commercial tenant may not make counterclaims in a summary process action. Fafard v. Lincoln Pharmacy of Milford, Inc., 439 Mass. 512, 517 (2003). However, a commercial tenant may bring an action preemptively against a landlord before a landlord brings an action for summary process in the District or Superior Court. Lawless-Mawhinney Motors, Inc. v. Mawhinney, 21 Mass. App. Ct. 738, 741- 742 (1986). The landlord could then counterclaim for possession in the court where the tenant commenced the preemptive action or bring a summary process action in the District Court as the landlord did here. This appeal addresses the issue of whether the District Court should dismiss or adjudicate a summary process action between a commercial landlord and tenant when an earlier action commenced by the tenant is pending in the Superior Court.

The tenant conducted an automobile detailing business at 39 Mystic Street in Everett. It held a written lease that provided for termination of the lease by either party upon thirty days written notice.

On December 8, 2017, the landlord delivered a notice to quit to the tenant purporting to terminate the lease. On January 3, 2018, the tenant commenced an action against the landlord in the Superior Court seeking a declaration that the lease was not terminated, and damages for breach of contract and violation of G.L. c. 93A. The landlord responded by commencing a summary process action seeking possession and damages in the Malden Division of the District Court on January 29, 2018. After hearing on February 1, 2018, the District Court denied tenant's motion to dismiss the summary process action pursuant to Mass. R. Civ. P. 12(b)(9) on February 13. The motion sought dismissal because of the prior pending action between the same parties in the Superior Court. At the hearing on the motion, the parties informed the court that the tenant remained in possession and that the right to possession was in dispute.

The parties also agreed that a hearing on the landlord's motion to dismiss the Superior Court action was filed and not yet scheduled for hearing. The tenant did not move to stay, consolidate, or transfer the District Court action. There is nothing further in the record about the status or result of the Superior Court action.

The tenant then answered and demanded a jury trial in the summary process action. On April 27, 2018, the landlord was awarded summary judgment for possession

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of the premises in the District Court summary process action. On July 5, 2018, the landlord's motion for separate judgment for possession was denied. Thereafter, a jury awarded the landlord damages against the tenant for rent and other charges due under the lease on February 21, 2019. Following a hearing, a judge ordered attorney's fees against the tenant. On March 27, 2019, the court entered a final judgment on all claims for possession and awarded damages to the landlord.

The tenant does not contest the award of possession. However, it appeals from the awards of damages and attorney's fees. It contends that at least the claims for damages in the summary process action should have been dismissed, and that all claims for damages should have been heard in the action pending in the Superior Court between the same parties. It asserts that the motion judge committed error in not dismissing the summary process action in its entirety because of the action pending between the same parties in the Superior Court.

Rule 12(b)(9) of the Mass. R. Civ. P. provides for dismissal when there is a prior action pending in another court involving the same parties and issues. The purpose of the rule is to avoid claim-splitting.

Fafard, supra at 517 n.6; Yentile v. Howland, 26 Mass. App. Ct. 214, 216 (1988). The District and Superior Courts both have jurisdiction over summary process actions. G.L. c. 239, § 2. The landlord could have counterclaimed for summary process relief in the action pending in the Superior Court. There is nothing in the record concerning whether the landlord filed any counterclaim in the Superior Court action seeking possession or any other relief by the date of hearing on the motion to dismiss or later.

The tenant contends that failing to dismiss the summary process action resulted in claim splitting and prevented a single adjudication of all of the current claims arising from the tenancy. Specifically, the tenant's claims for breach of contract and violation of G.L. c. 93A arising from the circumstances of the alleged termination of the lease could not be adjudicated in the summary process action because of the prohibition upon counterclaims. The tenant asserts that the summary process action brought in this court should have been dismissed to permit a single adjudication of all claims in the pending Superior Court action. It argues that this prevents claim splitting and having more than one court adjudicating the same dispute between the same parties.

By contrast, the landlord argues that it is important that its claim for possession be adjudicated expeditiously. It asserts that the District Court is likely to adjudicate its claim for possession sooner than the action pending in the Superior Court. A prompt adjudication of the issue of possession will reduce losses of income that the landlord may incur during the time that the tenant remains in possession awaiting a final adjudication of all of the claims asserted in the Superior Court action.

The tenant seeks de novo review relying upon Town of Boxford v. Massachusetts Highway Dep't, 458 Mass. 596, 598 (2010), citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 625 n.7 (2008).

Although those decisions involve rulings on a motion to dismiss under provisions of Mass. R. Civ. P. 12 other than 12(b)(9), we review the denial of the motion to dismiss de novo. There was no error.

There is no dispute that the parties are the same. However, the issue of possession was not in dispute in the Superior Court action when the District Court judge decided

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the motion to dismiss. The landlord was entitled to have the issue of possession decided promptly in the District Court. It was not required to resort to counterclaim in the Superior Court action. [Note 1] The landlord is entitled to summary process, and no anticipatory action by the tenant can "be permitted to derail the cause from the express track which summary process is supposed to afford." Lawless-Mawhinney Motors, Inc., supra at 742.

See Davis Inv. Corp. v. Thayer Assocs., 1999 Mass. App. Div. 202, 204. "This is based on the notion that real estate constitutes unique property and that because it generates income, time lost in regaining. . . possession can represent an irreplaceable loss to the owner." Commentary to Uniform Summary Process Rule 1.

This is consistent with the following guidance in Fafard v. Lincoln Pharmacy of Milford, Inc. to avoid claim splitting:

"We agree with the tenant that in situations such as this, when the dispute over possession has been resolved and the only remaining issue is how much rent is owed, it is in the interest of judicial economy to address related issues in a single proceeding The proper procedure for a defendant in such a situation is to file a separate claim, and move to consolidate the actions. If appropriate, the judge may then allow consolidation of the claims. See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass. App. Ct. 272, 279 (1988) (ordering consolidation of landlord's summary process action and tenant's breach of contract action when the actions were 'intertwined' and landlord would not be prejudiced by any resulting delays). There is not a right to file a counterclaim, but rather a party may file a motion to consolidate addressed to the judge's discretion."

Id. at 516-517.

During the hearing on the motion to dismiss, the court inquired of landlord's counsel about whether it wished to pursue any claims for damages in the District Court or would leave them for adjudication in the Superior Court action after the issue of possession was decided in the District Court. The court did not enter any order concerning these claims in its denial of the motion to dismiss. The tenant did not follow up with any motion to stay them to seek transfer or consolidation [Note 2] with the Superior Court action during the intervening year between denial of the motion to dismiss and the jury trial in March, 2019.

Last, the tenant appeals from the award of attorney's fees that the judge made

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following a posttrial motion. The tenant contends that the landlord was required to submit any request for an award of attorney's fees to the jury because the authority for awarding attorney's fees arises from the lease, and the jury verdict involved the complete interpretation of the lease. Consequently, it was error to award attorney's fees pursuant to a postverdict motion. The tenant also contends that the court's award of $12,837.24 must be vacated because it is unreasonable and was made without any explanation of the factors the court considered in making the award.

The landlord responds that trials are conducted on the merits of the case and awards of attorney's fees are decided afterwards. The landlord also asserts that there is no requirement that a trial judge must provide the basis for awarding fees and that the tenant cannot raise this issue because it did not submit a transcript of the hearing on the award of fees or any affidavit from the landlord's counsel as part of the record appendix.

We reject the tenant's argument that it was entitled to have a jury make any award of fees authorized by the lease. The tenant has not offered any citation to support this position. Further, it has not directed us to any reference from the record to demonstrate that it urged the trial judge that it was entitled to have the jury determine whether to award any attorney's fees and, if so, how much. "An issue not raised or argued below may not be argued for the first time on appeal." Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989). It would be premature to interject evidence of the amount and nature of work that an attorney performed on behalf of his client and for which reimbursement is sought as authorized under a contractual provision between the parties until the jury determines which party prevails on the merits. The prevailing party is then given an opportunity to apply for attorney's fees after notice and an opportunity for the opponent to be heard.

"Generally, a judge -- and particularly the trial judge -- can, from the judge's own experience, determine an award of legal fees; there is no requirement for an evidentiary hearing." Borne v. Haverhill Golf & Country Club, Inc., 58 Mass. App. Ct. 306, 325 (2003).

We affirm the award of attorney's fees despite the absence of any statement of the reasons for the award because the tenant did not request findings or seek reconsideration by the trial judge of the award of attorney's fees. No rule requires written findings to support a fee determination when none are requested. Jones v. Gangi Printing, Inc., 2016 Mass. App. Div. 38, 40. Absent a request for findings, it can be inferred that a judge is correctly applying the factors dictated by the Supreme Judicial Court in assessing attorney's fees. See Fontaine v. Ebtec Corp., 415 Mass. 309 (1993). The award of attorney's fees here was based upon the provisions of the lease, not a statute that required findings such as G.L. c. 231, § 6F. See Strand v. Herrick & Smith, 396 Mass. 783, 792 (1986).

The landlord has requested and shall be awarded appellate attorney's fees. He has fourteen days from the issuance of this decision to submit any application and supporting documentation. Yorke Mgt. v. Castro, 406 Mass. 17, 20 (1989). Tenant shall have fourteen days thereafter to respond.

Judgment affirmed.