Driscoll v. Harrison

• Decision Date: 25 February 1981
• Citation: 11 Mass.App.Ct. 444,417 N.E.2d 26
• Parties: J. Francis DRISCOLL v. Donald W. HARRISON (and a companion case). 1
• Court: Appeals Court of Massachusetts

Page 26

417 N.E.2d 26

11 Mass.App.Ct. 444

J. Francis DRISCOLL v. Donald W. HARRISON (and a companion case). ¹

Appeals Court of Massachusetts, Suffolk.

Argued Dec. 15, 1980.

Decided Feb. 25, 1981.

Ellen S. Cooper, Boston (William H. Murphy, Boston, with her), for J. Francis Driscoll.

H. Crowell Freeman, Jr., Boston, for Donald W. Harrison.

Before PERRETTA, DREBEN and NOLAN, JJ.

PERRETTA, Justice.

After the tenant Harrison struck the landlord Driscoll's son (Frank) with a four-foot long closet pole, Driscoll applied to the rent board of Boston for an eviction certificate, alleging nuisance and just cause under St. 1970, c. 842, § 9(a)(3) and (10), and c. 3, tit. 10, § 108(a)(iii) and (x), of the Ordinances of the city of Boston. ² The board denied the application on the nuisance ground, but it issued a certificate for just cause. Claiming that he had acted in self-defense, Harrison appealed to the Boston division of the Housing Court Department, St. 1970, c. 842, § 10, and G.L. c. 185C, § 3, while Driscoll brought an action in summary process; the two matters were consolidated for trial. ³ See Gentile v. Rent Control Bd. of Somerville, 365 Mass. 343, 350, 312 N.E.2d 210 (1974). The judge found that there was no just cause to evict Harrison. He annulled the Board's decision and entered a judgment in Harrison's favor on the summary process complaint. We reverse the judgments. ⁴

We relate the facts as the judge found them. Harrison had resided in his rent controlled apartment from the time Driscoll first acquired the sixteen unit building in 1965. The tenancy relationship had been uneventful and harmonious the entire time with the exception of the "isolated incident" in question, which occurred on June 6, 1978. That morning Harrison was late for work. As he was going to his car which was in the parking lot of the building, he saw that a truck was blocking the exit from the lot. Frank, who was employed by his father as a maintenance man, had arrived in the truck a short time earlier to collect rubbish. Harrison asked Frank to move his truck, and Frank asked Harrison why he had failed to report a leak in his apartment which had caused water to seep into the unit below his. Harrison denied knowledge of the leak, and a shouting match ensued. It quickly escalated into a physical altercation with "both individuals touch(ing) the other with their finger in a light pushing fashion." The "light pushing," as well as the shouting, ended when Harrison took a four-foot closet pole from the trunk of his car and hit Frank in the shoulder with it.

As to this entire episode, the judge found that neither of the men had been justified in touching the other, irrespective of who may have been the instigator, although the incident would not have occurred had Frank walked away from the argument and moved his truck. Focusing on the battery with the pole, the judge found that he was "not prepared to find with any degree of certainty that Mr. Harrison did not believe that he was in physical danger and was attempting to defend himself." He further found that "(i)n retrospect, it appears likely that Mr. Harrison used excessive force" in striking Frank with the pole. ⁵ On the basis of these findings, the judge concluded that there was no just cause to evict Harrison because the parties had had a long and harmonious relationship but for this "isolated incident" which was partly Frank's fault and because a recurrence was improbable.

The sole question presented on these facts is whether Harrison's use of excessive force in defending himself against Frank constitutes just cause for his eviction under § 9(a)(10). Driscoll contends that just cause must be construed broadly to include any reason advanced by a landlord in good faith to protect an economic or property interest, so long as it does not conflict with the purposes of the rent control legislation. ⁶ Compare Gentile v. Rent Control Bd. of Somerville, 365 Mass. at 343, 312 N.E.2d 210 , and Zussman v. Rent Control Bd. of Brookline, 367 Mass. 561, 326 N.E.2d 876 (1975), with Mayo v. Boston Rent Control Admr., 365 Mass. 575, 314 N.E.2d 118 (1974). Harrison argues that the legislative purposes of rent control will be frustrated unless the reasons for which a landlord can evict a tenant are strictly limited, and, thus, just cause cannot be interpreted to permit an eviction for the conduct which was found not to rise to the level of a nuisance under § 9(a)(3).

Even if we accept the tenant's argument that an isolated incident of misconduct cannot be a basis for an eviction under § 9(a)(3), we nevertheless can scrutinize the tenant's conduct under § 9(a)(10). A contention to the contrary was rejected in Gentile v. Rent Control Bd. of Somerville, 365 Mass. at 347, 312 N.E.2d 210: "Accepting the plaintiff's contention that the late payment of rent is not included within the language of subsection (1), a point which we need not decide, we see no conflict in including within the 'other just cause(s)' of subsection (10) chronic late payment of rent, a situation which could be substantially more adverse to the landlord's interest than nonpayment of a single rental obligation." Further, those cases which the tenant cites in support of his contention that a tenant cannot be evicted under § 9(a)(10) for a single episode of misconduct are inapposite. Evictions in those cases were sought on the grounds of nuisance pursuant to statutes and regulations making no provisions for just cause or a comparable basis. See Sam Priceman Constr. Co. v. Goldstein, 183 Misc. 171, 51 N.Y.S.2d 161 (N.Y.Sup.Ct.1944); ⁷ DiLella v. O'Brien, 187 Misc. 922, 68 N.Y.S.2d 374 (City Court of Albany, N.Y.1946). See also 65 McKinney's Unconsol. Laws § 8585(1)(a) through (f) inclusive; New York City Rent and Rehabilitation Law, 451-6.0(a).

While the words "just cause," "good cause" or "due cause" take on different colorations when viewed in the context of the nature of the proceeding in which they are invoked as a basis for terminating a legal relationship, they have long been understood to mean "any ground which is put forward ... in good faith, and which is not arbitrary, irrational, unreasonable, or irrelevant." Davis v. School Comm. of Somerville, 307 Mass. 354, 362, 30 N.E.2d 401 (1940). See also Amoco Oil Co. v. Dickson, --- Mass. ---, --- - ---, ^a 389 N.E.2d 406 (1979) for a collection of cases defining "just cause," "due cause," and "good cause." This standard is employed also in public housing eviction proceedings. ⁸ As used in § 9(a)(10), "just cause" has its usual and plain common sense meaning. Thus, while recurrent misconduct may constitute just cause, so too may an isolated incident.

The facts that the episode was an isolated one, that it was caused in part by Frank, and that it is unlikely to recur, do not diminish the tenant's misconduct: he used excessive force and committed a serious act of violence. ⁹ A landlord's wish to remove a tenant who acted in such a manner against his son and employee while in the performance of his duties related to the property is neither arbitrary and capricious not irrelevant. Additionally, there is no evidence to suggest that Driscoll acted in bad faith or for a reason in conflict with the purpose of the Rent Control Act in seeking Harrison's eviction. While the eviction will result in the decontrol of Harrison's unit, Driscoll's uncontradicted testimony shows that he was not motivated by this fact to commence eviction proceedings. Driscoll receives two hundred twenty dollars a month for each of the four controlled units; the rentals on the remaining twelve apartments range from two hundred thirty-five dollars to two hundred seventy-five dollars a month. In his twenty-three years as a landlord, Driscoll has initiated only three eviction actions, including the present case, which is his first eviction resulting in decontrol of the unit vacated.

Although Harrison has been beyond reproach as a tenant for many years with...