Opinion
21-P-1163
06-16-2022
SUMNER SLAVIN, individually and as trustee, [1] v. NANNETTE LEWIS.
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
Plaintiff Sumner Slavin appeals from a Superior Court order denying his motion for a preliminary injunction that would require defendant Nannette Lewis to vacate a home he owns in Brookline (property), where Lewis has lived for the past eight and one-half years. Slavin argues that Lewis was merely his guest at the property during their romantic relationship, and since that relationship has ended, he may seek her removal by a trespass action rather than a summary process action. We conclude that Slavin has not demonstrated that the judge abused her discretion in denying the preliminary injunction.
Background.
The following facts are drawn from the allegations in Slavin's verified complaint filed in Superior Court, and relevant documents from the record. In about 2011, Slavin and Lewis began a romantic relationship. In 2012, Slavin purchased the property, later transferring its title to a trust of which he is sole beneficiary. Beginning in late December 2013, Slavin and Lewis lived together at the property as their principal residence. During their relationship, Lewis substantially contributed to the property, including by using her professional expertise as an interior designer to renovate the property and select its decor and furnishings.
In September 2021, the parties' romantic relationship ended. Slavin asked Lewis to move out of the property, but she refused to do so. Because Lewis refused to vacate the property, in order to avoid conflict with her, on September 19, 2021, Slavin moved out of the property and since then has been living in hotels or at the homes of friends.
In late September 2021, Slavin sought a preliminary injunction in Housing Court. In mid-October 2021, Lewis changed the locks at the property, thereby preventing Slavin from accessing it unless he arranges with her to do so. On October 19, 2021, Slavin filed an amended complaint in Housing Court, seeking injunctive relief, including that Lewis be required to vacate the property.
On October 25, 2021, Lewis filed in Superior Court a complaint against Slavin for partnership by estoppel, breach of contract, a declaratory judgment that the parties were equal partners in owning the property, unjust enrichment, fraud, quantum meruit, and constructive trust.
On November 8, 2021, Slavin filed in Superior Court the verified complaint at issue here, seeking relief against Lewis in three counts: for trespass on the property; for a declaratory judgment that Lewis has no financial or ownership interest in the property and a permanent injunction ordering Lewis to vacate the property; and for conversion of Slavin's personal property. Slavin also filed a motion for a preliminary injunction requiring Lewis to immediately vacate the property, asserting that during their romantic relationship, Lewis was "a licensee -- a mere guest" at the property, and because that relationship has ended "she is now a trespasser, or in layperson's terms, a squatter." Lewis opposed the issuance of a preliminary injunction, arguing that she is an "occupant" of the property with equitable rights "that can only be terminated through a [s]ummary [p]rocess proceeding" pursuant to G. L. c. 239, § 1 et seq.
On November 22, 2021, on Slavin's motion, his Housing Court complaint seeking a preliminary injunction was dismissed without prejudice to allow the parties to pursue their claims in Superior Court.
On November 26, 2021, after a hearing in Superior Court, the judge denied Slavin's motion for a preliminary injunction.
Of the Sumner A. Slavin 1999 Revocable Trust.
Slavin petitioned for interlocutory relief pursuant to G. L. c. 231, § 118, which Lewis opposed, again arguing that Slavin's avenue of relief was through summary process proceedings. A single justice of this court reported the question of the propriety of the order denying the preliminary injunction. The single justice noted that resolution of the question whether an action in trespass, rather than a summary process case, may be used to evict a longtime tenant whose name is not on the deed or lease is necessary because case law on the issue is not determinative. This appeal ensued.
The parties have not provided us with a transcript of that hearing. As appellant, it was Slavin's responsibility to do so. See Mass. R. A. P. 8 (b) (1) (A), as appearing in 481 Mass. 1611 (2019).
Discussion.
"We review the grant or denial of a preliminary injunction to determine whether the [motion] judge abused [her] discretion, that is, whether the judge applied proper legal standards and whether there was reasonable support for [her] evaluation of factual questions." Doe v. Worcester Pub. Sen., 484 Mass. 598, 601 (2020), quoting Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 741 (2008). To be entitled to a preliminary injunction, Slavin bore the burden of showing that (1) his success on the merits of his claim is likely; (2) irreparable harm will result to him if the injunction is denied; and (3) the risk of irreparable harm to him outweighs any similar risk of harm to Lewis. Doe v. Superintendent of Sch. of Weston, 461 Mass. 159, 164 (2011). "In an appropriate case, the risk of harm to the public interest also may be considered." GTE Prods. Corp. v. Stewart, 414 Mass. 721, 723 (1993), quoting Brookline v. Goldstein, 388 Mass. 443, 447 (1983). "[A] preliminary injunction 'ordinarily is issued to preserve the status quo pending the outcome of litigation.'" Garcia v. Department of Hous. & Community Dev., 480 Mass. 736, 752 n.16 (2018), quoting Doe v. Superintendent of Sch. of Weston, supra.
As to the likelihood of success on the merits of his trespass claim, Slavin argues that Lewis is a mere licensee who does not have legal possession of the property, and so summary process is not the appropriate means to remove her. We disagree. The summary process statute provides that "if a peaceable entry [into land or tenements] has been made and the possession is unlawfully held by force, . . . the person entitled to the land or tenements may recover possession thereof under this chapter." G. L. c. 239, § 1. That describes the situation here: Lewis peaceably lived at the property for nearly eight years until Slavin asked her to move out, after which Lewis changed the locks to forcibly hold possession of the premises. See Adjartey v. Central Div. of the Hous. Court Pep't, 481 Mass. 830, 834 n.7 (2019) (summary process plaintiffs include not only landlords, but also "persons forcibly and unlawfully kept out of their premises by one who entered the premises peaceably"). Contrast United Co. v. Meehan, 47 Mass.App.Ct. 315, 318-319 (1999) (tenant's guest who "was never a tenant, a cotenant, an approved occupant, or a permanent resident" of premises not subject to summary process).
We acknowledge the amicus briefs submitted by City Life/Vida Urbana; MassLandlords, Inc.; and the one submitted jointly by Casa Myrna, DOVE, Inc., Independence House, Inc., Massachusetts Law Reform Institute, New Hope, Inc., Rosie's Place, and Women's Lunch Place.
The question remains whether summary process is the exclusive remedy available, or whether Slavin may alternatively seek to remove Lewis by means of a trespass action and an injunction. For purposes of evaluating whether the Superior Court judge abused her discretion in denying the motion for a preliminary injunction, we need not conclusively answer this question, because even if summary process is only an alternate remedy to trespass, it was a well-established, fully adequate, and easily available legal remedy available to Slavin. Indeed, Slavin has not argued -- let alone shown -- otherwise.
Moreover, there is a strong argument that summary process is indeed the exclusive remedy available. General Laws c. 184, § 18, provides that "[n]o person shall attempt to recover possession of land or tenements in any manner other than through an action brought pursuant to [the summary process statute] or such other proceedings authorized by law." Slavin argues that "such other proceedings authorized by law" include a civil trespass action.
In Attorney Gen, v. Dime Sav. Bank of N.Y., FSB, 413 Mass. 284, 288-291 (1992) (Dime), the foreclosing mortgagee bank sought to evict holdover mortgagors and tenants by means of actions in trespass, rather than by summary process. The court rejected the bank's argument that an action in trespass, supplemented by an injunction that the holdover mortgagors or their tenants vacate the premises, constituted "such other proceedings authorized by law" within the meaning of G. L. c. 184, § 18. Id. at 288. See Federal Nat' l Mtge. Ass'n v. Gordon, 91 Mass.App.Ct. 527, 532-533 (2017). The Dime court noted that the criminal trespass statute, G. L. c. 266, § 120, expressly precludes its application to "occupants of residential premises who, having rightfully entered said premises at the commencement of the . . . occupancy remain therein after such . . . occupancy has been or is alleged to have been terminated," and that limitation was "consistent with the common law of trespass." Dime, supra at 288 n.7. The court went on to explain that at common law, a bill in equity brought by an owner to recover possession of land would have been dismissed because "summary process offers 'a plain, adequate, and complete remedy at law.'" Id. at 290 n.10, quoting Weiss v. Levy, 166 Mass. 290, 293 (1896).
Dime, although not dispositive, supports Lewis's argument that summary process is the exclusive avenue for Slavin to remove Lewis from the property. But, for our purposes, we need not definitively determine whether a trespass action was available to Slavin as an alternative avenue of relief; it suffices to say that Slavin did not meet his burden to show that avenue of relief was sufficiently clear such that it was likely to be successful. In any event, because Slavin is now in fact seeking relief through summary process, see note 4, supra, the question whether that is his exclusive remedy may well be moot.
During the pendency of this appeal, Slavin did file a summary process complaint in the District Court, which on Lewis's motion was transferred to the Housing Court. Lewis then moved to dismiss the Housing Court summary process action, arguing that it should be referred to the Superior Court; as of this writing, that motion is pending. In certain circumstances the Superior Court may have jurisdiction over summary process claims. See G. L. c. 239, § 2 (Superior Court jurisdiction for summary process where plaintiff seeks money damages, and there is no reasonable likelihood that plaintiff's recovery will be $25,000 or less). If the Superior Court does not have jurisdiction, the summary process action may proceed in Housing Court. See Gold Star Homes, LLC v. Darbouze, 89 Mass.App.Ct. 374, 377-378 (2016) (summary process counterclaim properly proceeded in Housing Court although related claims remained in Land Court, which did not have jurisdiction over summary process). We take no position on the merits of the summary process action, nor as to the court in which it should proceed.
As to the relative risks of irreparable harm to the parties and the risk of harm to the public if we were to rule that Slavin could seek to remove Lewis by means of a trespass action, we note the following. Slavin allegedly has been locked out of the property for eight months, as of this writing, and during that time has been deprived of free access to his home and his possessions, including his medical library. However, that deprivation would likely be remedied more swiftly by a summary process action than by an action in trespass. See Adjartey, 481 Mass. at 850, quoting Rule 1 of the Uniform Summary Process Rules (1980) ("summary process is designed 'to secure the just, speedy, and inexpensive determination' of eviction actions"). A summary process action also would afford protections to Lewis to minimize the risk of irreparable harm to her. As the amici remind us, in Housing Court, many resources are available to parties in a summary process action to assist them through the proceedings and, if necessary, in finding other housing. See Adjartey, supra at 847 n.23 (tenancy preservation program for disabled tenants); id. at 856 (mediation with housing specialist). See also Housing Court Standing Order 1-01 (providing referrals on limited basis to pro bono attorneys). In these circumstances, Slavin has not demonstrated that a preliminary injunction issued in the trespass action to remove Lewis from the property would pose a lesser risk of irreparable harm to either party than would proceeding by summary process.
On this record, Slavin has not met his burden to show that the judge abused her discretion in denying his motion for a preliminary injunction in order to maintain the status quo.
Order denying motion for preliminary injunction affirmed.
As noted above, in opposing the preliminary injunction and before the single justice, Lewis conceded that a summary process action is an appropriate means for Slavin to seek to remove her from the property. At oral argument, Lewis made the same concession and characterized her pending motion to dismiss in the Housing Court as challenging only venue.