2020 Mass. App. Div. 160

January 31, 2020 - September 30, 2020

Appellate Division Northern District

Court Below: District Court, Cambridge Division

Present: Coven, P.J., Nestor & Karstetter, JJ.

Vladimir Nechev, Stephen M. Scolnick and Mark R. Laverty for the plaintiff.

Ralph Scott, pro se.

NESTOR, J. The plaintiff-landlord brought this summary process action against the defendant-tenant for possession and unpaid rent under a lease. The court held for the plaintiff after a bench trial, and the defendant has appealed under Rule 8A of the District/Municipal Courts Rules for Appellate Division Appeal. The defendant's principal argument is that the plaintiff filed the complaint late in violation of Rule 2 of the Uniform Summary Process Rules. We agree and conclude the complaint must be dismissed.

1. We first comment on the record. The defendant selected as his method of appeal to this Appellate Division an expedited appeal under Dist./Mun. Cts. R. A. D. A. 8A. The expedited appeal serves as the trial court record in a Rule 8A appeal. In this case, the defendant's fifteen-page expedited appeal contains six pages devoted to argument. "It is the appellant's responsibility in the first instance to prepare an Expedited Appeal that is not only an accurate and complete, but also an objective, trial court record." Rossi v. Oceanview Country Club, 1997 Mass. App. Div. 197, 198. The trial court record is not a brief. Id.

Further, Rule 8A(a) mandates as essential parts of an expedited appeal "a summary of the undisputed facts and so much of the evidence, including copies of pleadings and other documents, as may be necessary to decide the questions of law presented." Rule 8A does not permit a transcript of the evidence, a record appendix, or appendices to the parties' brief. Therefore, all relevant documents must be attached to the expedited appeal. Rossi, supra; Scalia v. Liberty Mut. Ins. Co., 1995 Mass. App. Div. 69, 70-71. In this case, although the defendant refers to the lease in his argument within the expedited appeal, and the plaintiff refers to the lease within its appellee's brief, the lease was not included in the defendant's expedited appeal but rather improperly and subsequently attached to the defendant's reply brief. Both parties also refer in their briefs to the testimony at trial without citation to the record.

As this Appellate Division stated over twenty years ago in Rossi v. Oceanview Country Club, "[I]t is incumbent upon both parties, appellant and appellee, to insure that the Expedited Appeal presented to this Division is a concise summary of trial court evidence and proceedings containing all matters necessary for the review and determination of the issues raised on appeal." Id. at 198. The plaintiff here should have filed written objections to the defendant's expedited appeal in the trial court

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under Rule 8A(b). As the plaintiff did not do so, and as the limited number of relevant documents required for review are before us, we have elected to address this appeal. See Rossi, supra.

2. The defendant's principal argument is that the plaintiff failed to file the complaint timely in violation of the Uniform Summary Process Rules.

Rule 2 of the Uniform Summary Process Rules provides a three-step procedure for the plaintiff to commence a summary process action: (1) complete the summons and complaint and select an entry date; (2) serve the defendant; and (3) enter the action by filing with the court the summons and complaint. See Commentary to Rule 2. In terms of deadlines, Rule 2(b) requires the plaintiff to serve a copy of the summons and complaint on the defendant "no later than the seventh day nor earlier than the thirtieth day before the entry day." Rule 2(b). Rule 2(c) states that "[e]ntry dates for summary process actions shall be each Monday and cases shall be placed on the list for hearing on the second Thursday following the entry date without any further notice to the parties." Rule 2(c). Rule 3 requires the defendant's answer, including any defense and counterclaims, to be filed and served "no later than the first Monday after the Monday entry day."

Importantly for purposes of this appeal, Rule 2(e) of the Uniform Summary Process Rules provides:

"Filing of the Summary Process Summons and Complaint and necessary accompanying documents, if any, shall be by delivery in hand or by first-class mail to the clerk. Filing by mail is complete upon receipt by the clerk. Papers and documents required in accordance with the preceding paragraph [in Rule 2(d)] shall be filed together no later than the close of business on the scheduled Monday entry day. Late filing of the summons and complaint shall not be permitted without the written assent of the defendant or the defendant's attorney" (emphasis added).

The Commentary to Rule 2 further explains:

"This Filing [of the summons and complaint] constitutes entry of the action. Filing must be made no later than the close of business on the Monday entry day. Note that if filing is by mail, the documents must arrive in court by the Monday entry day. The hearing will be on the second Thursday . . . following the Monday entry day.

"This three-step procedure is required to allow flexibility in the time for commencing these actions yet at the same time to provide an automatic hearing date that can be predetermined and communicated to the defendant with the summons and complaint. Commencement of the summary process action under these rules occurs when proper service of the Summary Process Summons and Complaint is completed, subject, however, to the proper entry of the action."

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In this case, the plaintiff served the defendant with a fourteen-day notice to quit dated April 9, 2018. The plaintiff then served the defendant with a complaint, which listed the entry date as June 18, 2018, the defendant's answer date as June 25, 2018, and the trial date as June 28, 2018. The docket entries disclose, however, that the plaintiff failed to file the summons and complaint by the June 18, 2018 entry date that it had selected. Instead, the plaintiff filed the complaint four days later on June 22, 2018, together with an ex parte motion to file the complaint late. The court allowed the motion that same day, and the trial proceeded as scheduled on June 28, 2018. The self-represented defendant appeared, but did not file an answer. The court awarded possession and $16,458 in damages to the plaintiff.

By the express terms of Rule 2(e) of the Uniform Summary Process Rules, the court has no authority to allow the late filing of the complaint without the defendant's written assent. It is undisputed that the plaintiff missed the entry date and that the self-represented defendant did not provide written assent to the complaint's late filing. The court therefore erred in allowing the motion. See M.G. Perlin & J.M. Connors, Civil Procedure in the Massachusetts District Court ยง 14.20, at 545 n.79 (5th ed. 2018) ("Apparently, the court may not allow a motion for late filing. The written assent of the defendant clearly is a prerequisite to late filing, and the court has no authority to permit late filing absent such assent."); Residential Landlord-Tenant Benchbook 14 (W.E. Hartwell ed., 3d ed. 2013) ("The summary process summons and complaint cannot be entered late without the defendant's written assent."). The plaintiff's complaint must be dismissed. See Youghal, LLC v. Entwistle, 484 Mass. 1019, 1022 (2020) (holding that summary process complaint must be dismissed where complaint served before fourteen-day period provided in notice to quit had elapsed).

The judgment is vacated. This case is returned to the trial court for entry of judgment dismissing the complaint.


[Note 1] Doing business as Watermark Kendall West c/o Gables Residential.