Opinion
18-P-1012
04-17-2019
KATIA ZULEICA DE LA ROSA RAMIREZ v. NELLIE B. VICK.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant landlord appeals from a judgment entered in the Housing Court in favor of the plaintiff, a former tenant. We affirm.
The plaintiff was evicted from an apartment owned by the defendant. A judgment for possession entered on October 30, 2017. On August 22, 2017, the plaintiff filed in Housing Court a verified complaint and affidavit seeking money damages, which included the return of her security deposit. The defendant filed both a "response" to the complaint and a counterclaim, which were both docketed on September 1, 2017. The plaintiff filed a motion to schedule trial, which was docketed on December 12, 2017. The defendant's "RESPONSE" to that motion, requesting that the case be dismissed, was docketed on December 15, 2017. The defendant failed to appear for trial on February 6, 2018, and as a result, a default judgment in the amount of $4,357.40 entered against her on February 7, 2018. On February 14, 2018, the defendant filed a motion for relief from judgment, contending, in pertinent part, that she did not receive notice of the trial. The judge held a hearing on the motion on March 6, 2018. An order entered on March 21, 2018, denying the defendant's requested relief with one major exception: the judgment in favor of the plaintiff was reduced by $650.95, the amount awarded to the defendant in the eviction action.
In addition, the plaintiff was ordered to pay $650.95 to the defendant.
The majority of the plaintiff's damages stem from a rodent infestation resulting in the destruction or damage of personal property.
This included $1,700 of an unreturned security deposit and $2,300 in damaged or destroyed personal property.
The defendant's arguments on appeal appear to be that the judgment should be vacated because she did not receive notice of the trial date, the plaintiff's claims are not supported, and the plaintiff was never a tenant.
The defendant's brief sets forth arguments that do not rise to the level of appellate argument as required by Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). To the extent we have not specifically commented on the remaining arguments, we have considered them to be without merit. See Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
As to notice, the plaintiff's complaint was docketed on August 22, 2017. Proof of notice was docketed on August 29, 2017. The defendant participated in the case by filing pleadings and attending hearings. Indeed, at the hearing on her motion for relief from judgment, the judge asked the defendant to confirm that her address was the same as the address on the notice. She did so, and the judge reported that the notice that was sent was not returned as undeliverable. We can infer that the judge found that the defendant did receive notice. Moreover, the judge asked the defendant, "[H]ad you been here, what would you have told me?" The defendant responded and submitted documentation. The judge did not credit the defendant's claim concerning damage to the apartment. However, he amended the judgment to provide an offset for the money awarded to the defendant in the eviction proceedings, showing that he paid close attention to the defendant's evidence.
Whether the plaintiff was a tenant of the defendant requires little discussion. The plaintiff was residing in one of the defendant's apartments, was essentially paying rent to the defendant at regular intervals, and was listed as a "[h]ousehold member[] authorized to live in the [apartment]" on the lease agreement the defendant entered into with the Boston Housing Authority.
We review the judge's denial of the motion for relief from judgment for abuse of discretion. See Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 805 (2002). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). The judge considered the defendant's testimony, notwithstanding her failure to appear at the trial, and amended the original money damages calculation to account for the money owed to the defendant. On this record, there was no abuse of discretion.
Judgment affirmed.
By the Court (Milkey, Blake & Shin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 17, 2019.