2017 Mass.App.Div. 164, 331 Lafayette Street, LLC v. Fran & Diane's LLC

Citation:2017 Mass.App.Div. 164
Opinion Judge:NESTOR, J.
Attorney:Richard D. Grundy for the plaintiff. Marc E. Chapdelaine for the defendant.
Judge Panel:Present: Coven, P.J., Crane & Nestor, JJ.
Case Date:October 31, 2017
Court:Massachusetts Appellate Division

2017 Mass.App.Div. 164




Massachusetts Appellate Division, District Court Department, Northern District

October 31, 2017

May 26, 2017

Richard D. Grundy for the plaintiff.

Marc E. Chapdelaine for the defendant.

Present: Coven, P.J., Crane & Nestor, JJ.


In this commercial summary process action, the defendant, Fran & Diane's LLC (Fran & Diane's), appeals from a summary judgment for possession granted to the plaintiff, 331 Lafayette Street, LLC ("Lafayette"). The defendant also appeals from an order of the trial judge dismissing its appeal from the judgment.

Fran & Diane's operated a pizza restaurant at 333 Lafayette Street, Salem, MA. Fran & Diane's originally signed a lease on August 19, 2009 and originally rented the premises from the Lee Family Enterprises, LLC ("Lee"). The original lease provided for a term of "two (2) years and 13 days commencing on August 19, 2009 and ending on August 31, 2011." Fran & Diane's had the right to extend the lease for up to four terms of two years each. In order to extend the lease, it was required that, at least six months prior to the end of the current term, it must give Lee written notice by registered or certified mail.

On June 3, 2015, Fran & Diane's sent Lee a letter, stating, in part, "We were recently notified by Bob Burr [agent of Lafayette] that he is in the process of buying our building and that the intent is to tear it down and build an office building. . . . Over the years Extended Lease Terms were granted without notice . . . . [K]indly accept notice to extend to the next extended term; 2015-2017." Lee responded, in part, "You were initially tenants under a Commercial Lease dated August 19, 2009. By its terms, the Lease expired on August 31, 2011. The parties have not entered into a written agreement to extend the lease term and you have failed to properly extend the term of this Lease in accordance with the provisions of the Lease. Accordingly, you have been and continue to be tenants at will on a month to month basis."

On July 9, 2015, Fran & Diane's was served a notice to quit for nonpayment of rent for allegedly not paying rent for July, 2015. Fran & Diane's tendered payment for both June and July, 2015. Lee's attorney responded that Fran & Diane's was a tenant at will and the money was being accepted as payments made on the tenancy at will.

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On May 31, 2016, the purchase by Lafayette was finalized. On that same date, Lafayette served Fran and Diane's with a thirty-day notice to quit. A summary process summons and complaint was served on Fran & Diane's on July 15, 2016.

On August 8, 2016, Lafayette demanded payment for the months of June and July, 2016. Fran & Diane's forwarded a check on August 13, 2016. Fran & Diane's stopped payment on that check after the trial judge allowed a motion for summary judgment on August 26, 2016. It ultimately made good on that payment on October 25, 2016.

On September 16, 2016, the trial judge sanctioned Fran and Diane's in the amount of $1,075.00. It was sanctioned that amount for changing the locks on the unit without the consent of the landlord. On February 17, 2017, Fran & Diane's was found in contempt for failure...

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