Opinion
21-P-676
06-02-2022
EMG REALTY, LLC v. MARC READ; KEVIN GASIOROWSKI, third-party defendant.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, Marc Read, appeals from the judgment of the Northeast Division of the Housing Court Department dismissing his counterclaims and third-party complaint related to his eviction. We vacate the judgment.
The judgment on the issue of possession is not before us.
Read was a tenant of the plaintiff, EMG Realty, LLC (EMG Realty), when he received an eviction notice in July of 2020. Read's two units then became the subject of two summary process actions filed in the Newburyport Division of the District Court Department in September of 2020. At Read's request, the two District Court cases were transferred to the Northeast Division of the Housing Court. In November of 2020, in each of the two cases, Read brought three counterclaims against EMG Realty and, in what he denominated a third-party complaint, asserted the same causes of action against Kevin Gasiorowski, alleged to be the principal of EMG Realty. Those causes of action were: (1) a violation of the eviction moratorium law, (2) a violation of G. L. c. 93A, and (3) intentional infliction of emotional distress. All of the facts alleged in the counterclaims and third-party complaints stem from the eviction. EMG Realty filed motions to dismiss the counterclaims.
See Rule 4 of the Uniform Summary Process Rules (1982) . See also G. L. c. 185C, § 20.
St. 2020, c. 65.
On December 9, 2020, the parties stipulated as to the possession of the units at issue and agreed that Read's defenses, counterclaims, and third-party complaints against Gasiorowski would be severed from the now-moot summary process cases and consolidated with each other, to proceed on the Housing Court's civil docket. This agreement was memorialized in an order of the Housing Court on December 14, 2020. The cases were then consolidated, deemed civil, and dismissed from the court's summary process docket on January 29, 2021.
Despite the dismissal of the cases and transfer of the consolidated case to the civil docket, the Housing Court judge who had ordered the transfer then held a hearing on March 31, 2021, to review EMG Realty's motion to dismiss the already- transferred counterclaims. The judge concluded that EMG Realty terminated the underlying tenancy for cause and dismissed Read's counterclaims without prejudice on the ground that G. L. c. 239, § 8A, does not allow counterclaims when the eviction was for cause. On May 26, 2021, the judge held a hearing to review Gasiorowski's motion to dismiss Read's third-party complaint. Following this hearing, the judge entered an order dismissing the third-party complaint on the ground that Gasiorowski was not alleged to be directly or derivatively liable to Read for Read's liability (if any) to EMG Realty, and Read was, instead, asserting independent causes of action.
In the order allowing the dismissal of the counterclaims, the motion judge stated that EMG Realty terminated the underlying tenancy for cause, but that had not been adjudicated. Whether the termination was for cause has no bearing on our decision.
Because the counterclaims had been transferred from the summary process docket to the civil docket, any limitations that G. L. c. 239, § 8A, imposes on counterclaims in summary process actions no longer applied. Thus, dismissal of the counterclaims on § 8A grounds was error.
Read's counterclaims should be restored to the civil docket, putting them in the position they would have occupied absent the dismissal by the Housing Court.
As to Read's third-party complaints, his claims against Gasiorowski, although asserted in what Read mistakenly labeled third-party complaints, in substance joined Gasiorowski as an additional defendant to Read's claims against EMG Realty, as permitted by Mass. R. Civ. P. 13 (h), 365 Mass. 758 (1974). See also Mass. R. Civ. P. 20 (a), 365 Mass. 766 (1974). The claims against Gasiorowski were essentially identical to those asserted against EMG Realty and should not have been dismissed based on Read's mistaken characterization of Gasiorowski as a third-party defendant rather than as an additional defendant in counterclaim. This is particularly the case where Gasiorowski neither sought dismissal based on the mistaken characterization nor has asserted any prejudice flowing from it. On remand, the judge may require Read to amend his third-party complaints so as to properly characterize Gasiorowski as a defendant in counterclaim.
Read's claims do not allege that Gasiorowski is or may be liable to him for all or part of EMG Realty's claim against him. Rule 14 (a) of the Massachusetts Rules of Civil Procedure, as amended, 385 Mass. 1216 (1982), which allows a defendant to bring in a third party, "is intended to be used in situations of indemnity or possible contribution." Gabbidon v. King, 414 Mass. 685, 686 (1993).
Rule 13 (h) states: "Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20."
Rule 20 (a) states:
"All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action."
Cf. Manfrates v. Lawrence Plaza Ltd. Partnership, 41 Mass.App.Ct. 409, 414 (1996) (no prejudice to third-party defendant where it was on notice, long before plaintiffs amended their complaint, that plaintiffs considered third party to be directly liable to them); Henderson v. D'Annolfo, 15 Mass.App.Ct. 413, 419 n.10 (1983) (applying substance-over-form doctrine in third party action, where "procedural irregularity was harmless").
EMG Realty and Gasiorowski ask us to affirm the Housing Court's orders with prejudice on multiple alternative grounds. Because they did not cross-appeal, we cannot provide them with the relief they request. "[F]ailure to take a cross appeal precludes a party from obtaining a judgment more favorable to it than the judgment entered below." Boston Edison Co. v. Boston Redev. Auth., 374 Mass. 37, 43 n.5 (1977). We vacate the Housing Court's judgment dismissing Read's counterclaims and third-party complaint and remand for further proceedings consistent with this memorandum and order.
So ordered.
By the Court
The panelists are listed in order of seniority.