Opinion
14-P-851
04-02-2015
JUGAL SHARMA v. JERLINE JOHNSON.
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
After a jury trial in this summary process action, the landlord plaintiff was awarded unpaid rent and the tenant defendant was awarded sums on her counterclaims for breach of the warranty of habitability, breach of the covenant of quiet enjoyment, and retaliation. The verdict was reached on September 18, 2013. The amount of rent owed to the landlord exceeded by $3,490 the amount awarded on the plaintiff's counterclaims. Accordingly, judgment entered in that amount in favor of the landlord on December 12, 2013. The tenant did not appeal. On that same date, judgment was entered in the tenant's favor in the amount of $5,000 for her attorney's fees. The judgment states that, "[a] separate judgment is hereby entered for the tenant's attorney." The landlord did not pay, and the tenant moved for an order compelling payment. In response, the landlord argued that the award of fees should be offset against the judgment in his favor. The judge agreed, and entered an order to that effect on March 13, 2014. The tenant appeals from this postjudgment order, arguing that (1) the offset was improper under PGR Mgmt. Co., Heath Properties v. Credle, 427 Mass. 636 (1998) (PGR Mgmt.), (2) she is entitled to attorney's fees and costs associated with this appeal under Yorke Mgmt. v. Castro, 406 Mass. 17 (1989), and (3) she is entitled to postjudgment interest on the $5,000 fee award. We reverse so much of the order as allowed the offset and decline to award fees on appeal or postjudgment interest.
The verdict was reached on September 18, 2013. However, judgment did not enter until December 12, 2013. It appears that the delay was due to various posttrial motions, and because of G. L. c. 239, § 8A, which provides, among other things, that judgement shall not enter until after the expiration of the time allowed the tenant to make payment.
The landlord subsequently paid the balance of $910.
At the outset, we note that we have received no briefing from the landlord. But we have carefully reviewed the record, including (to the extent they were included) the landlord's submissions below.
In PGR Mgmt., supra at 640-641, the Supreme Judicial Court held that, "[b]ecause [an] attorney's lien under c. 221, § 50, takes effect on commencement of the suit and has priority over any later accruing right of setoff under c. 186, § 14, any attorney's fees awarded a tenant may not be set off against a judgment for the landlord." Based on the reasoning of PGR Mgmt., as well as the similarity of its facts to those presented in this case, we conclude that the judge erred in setting off the attorney's fee award below against the amount owed the landlord.
PGR Mgmt. also controls the tenant's request for attorney's fees on appeal. See id. at 641. Yorke Mgmt., supra at 20, upon which the tenant relies, does not apply because the tenant has not appealed from, let alone successfully done so, the summary process judgment. See PGR Mgmt., supra. As the tenant has forcefully argued, the award of fees was separate from the judgment entered against her. And moreover, this appeal is only from the postjudgment order allowing offset of the attorney's fees against the amount owed the landlord. General Laws c. 186, § 14, accordingly does not apply, and "there is no basis to depart from the traditional American Rule that the prevailing party is not entitled to attorney's fees." PGR Mgmt., supra.
Finally, the issue of postjudgment interest is not properly before us. The record does not show that the tenant requested postjudgment interest below. Nor is there any action by the trial court judge with respect to postjudgment interest. The notice of appeal identifies only the offset order. In short, there is no action of the trial court for us to review.
So much of the order entered March 13, 2014, as allowed the attorney's fees award to be offset against the award in favor of the landlord is reversed. The remainder of the order for payment is affirmed.
So ordered.
By the Court (Kafker, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: April 2, 2015.