2017 Mass.App.Div. 176, Melo v. Hampe
|Citation:||2017 Mass.App.Div. 176|
|Opinion Judge:||HAND, P.J.|
|Party Name:||LISETA MELO v. KURT HAMPE|
|Attorney:||Timothy J. Perry and Russell J. Fleming for the plaintiff. Benjamin H. Dowling for the defendant.|
|Judge Panel:||Present: Hand, P.J., Finnerty & Kirkman, JJ.|
|Case Date:||November 08, 2017|
|Court:||Massachusetts Appellate Division|
July 21, 2017
Timothy J. Perry and Russell J. Fleming for the plaintiff.
Benjamin H. Dowling for the defendant.
Present: Hand, P.J., Finnerty & Kirkman, JJ.
This case arises out of a residential summary process action. The parties had a written lease running from December 13, 2012 until September 1, 2019. On May 26, 2016, landlord-appellee Liseta Melo ("Melo") served a notice to quit on her tenant, appellant Kurt Hampe ("Hampe"). That notice stated that "[t]he reason for this notice is due to your breach of quiet and [sic] enjoyment." Some two months later, in August, 2016, and without amending her notice to quit, Melo filed a complaint claiming her entitlement to rent based on both Hampe's breach of quiet enjoyment and Hampe's failure to pay $20,900.00 in rent for the period from February, 2015 until August, 2016. It is undisputed that the complaint was served on Hampe, and that he did not file an answer or other response to that complaint.
The case was tried jury waived on September 8, 2016. In her direct testimony at trial, Melo testified to her concerns about Hampe's making noise at the property. She also testified that Hampe had not paid his rent for fifteen months. Hampe did not object to Melo's testimony about his rent arrearage. Through counsel, Hampe cross-examined Melo about her claims on both issues and, with respect to Melo's claim that he had not paid rent, about whether Melo had refused Hampe's tender of rent during his tenancy.
After Melo rested, the court ruled that she had failed to carry her burden of proof on her claims that Hampe's breaches of her quiet enjoyment entitled her to possession of the property, but noted that it "[was] concerned about the rent. [The landlord] says she hasn't gotten a cent since February of 2015." Again, Hampe was silent about any objection to the court's consideration of the failure to pay rent as a basis for the summary process action, and went on to testify at some length about his unsuccessful attempts to tender rent payments to Melo. It was not until closing arguments that Hampe raised, for the first time in the life...
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