Opinion
16–P–952
08-25-2017
John GASPARIK & Another v. Pamela GASPARIK.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Pamela Gasparik, appeals from a summary process judgment issued by a judge of the Housing Court awarding possession of the premises to the plaintiffs, John and Arlene Gasparik. She argues that because the plaintiffs failed to establish the existence of a tenancy with her, the judge erred in granting possession to the plaintiffs. We affirm.
Because the parties share the same last name, we use their first names for ease of reference.
Background. The trial evidence supports the following findings. John and Arlene own a residence in Webster. Pamela, their daughter, took possession under an informal understanding that she would maintain the residence and make payments in some unspecified amounts to her parents; at some indefinite future time the parties anticipated that Pamela would purchase the residence. Pamela made a few payments and improvements. Some years later, in 2010, John and Pamela agreed that Pamela would pay her parents $500 each month, payments John characterized as "rent." Pamela never made these payments. John and Arlene eventually, in 2015, served on Pamela a fourteen-day notice to quit. Pamela neither cured nor surrendered possession and John and Arlene commenced this summary process action. After a brief trial, at which both John and Pamela testified, a Housing Court judge issued a judgment awarding possession to John and Arlene. We affirm.
The judgment is without prejudice to the respective parties' right to seek quantum meruit or other monetary relief from the other should they choose to pursue those remedies in separate proceedings.
Discussion. Pamela's arguments on appeal regarding John's credibility are misplaced: we do not "substitute our opinions on credibility of witnesses whom we did not see for that of the trial judge who both saw and heard them." Matsushita Elec. Corp. of America v. Sonus Corp., 362 Mass. 246, 254 (1972). While we acknowledge that some of John's testimony came in response to what Pamela now views as counsel's leading questions, Pamela did not object to counsel's questioning, and the testimony solicited thereby was available to the judge for whatever probative value it might have. See Adoption of Kimberly, 414 Mass. 526, 534–535 (1993). Moreover, it falls within the trial judge's discretion to permit such questioning. See Westland Hous. Corp. v. Scott, 312 Mass. 375, 383–384 (1942). We see no abuse of that discretion here or any other error in the judge's decision to credit John's testimony.
Equally misplaced are Pamela's arguments regarding the alleged understanding under which she originally assumed possession. As noted, John testified to the effect that the parties in fact entered into an oral lease of indefinite duration. Although Pamela disputes John's testimony, it was for the trial judge, as the fact finder, to determine on the conflicting evidence whether and on what terms the parties created a tenancy. See Shwachman v. Meagher, 45 Mass. App. Ct. 428, 434 n.6 (1998). See also Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 420 (2005). We are satisfied the judge's choices are well supported.
The judge having accepted John's testimony, it necessarily follows that Pamela held possession under a tenancy at will subject to termination by either party on appropriate notice. See Baldassare v. Crown Furniture Co., 349 Mass. 183, 193 (1965). See also G.L.c. 183, § 3. Because Pamela "neglected" or "refused" to pay "rent due," John and Arlene's fourteen-day notice to quit terminated the tenancy. G.L.c. 186, § 12. John and Arlene satisfied their prima facie summary process claim. See Pierce v. DeQuattro, 299 Mass. 533, 535 (1938) ; Chase v. Aetna Rubber Co., 321 Mass. 721, 723–724 (1947).
As relevant here, § 12 provides that "in case of neglect or refusal to pay the rent due from a tenant at will, fourteen days' notice to quit, given in writing by the landlord to the tenant, shall be sufficient to determine the tenancy." G.L.c. 186, § 12, as amended through St. 1977, c. 494, § 2.
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Judgment affirmed.