Glendale Assocs., LP v. Harris
| Decision Date | 15 May 2020 |
| Docket Number | No. 19-P-404,19-P-404 |
| Citation | 97 Mass.App.Ct. 454,148 N.E.3d 1226 |
| Parties | GLENDALE ASSOCIATES, LP v. Kevin K. HARRIS. |
| Court | Appeals Court of Massachusetts |
Joshua J. Bone (Andrew S. McDonough, Boston, also present) for the tenant.
Jeffrey C. Turk, Braintree, for the landlord.
H. Esme Caramello, for Harvard Legal Aid Bureau, amicus curiae, submitted a brief.
Present: Hanlon, Blake, & Hand, JJ.
The defendant, Kevin Harris (tenant or Harris), appeals from a judgment entered in the Housing Court voiding his lease pursuant to G. L. c. 139, § 19 ( § 19 ),1 and awarding possession to the plaintiff, Glendale Associates, LP (landlord). Harris's principal claim on appeal is that the judge failed to conduct a trial and make any findings of fact or conclusions of law to support liability under § 19. He also claims that the judge imposed an unreasonable treatment plan as a reasonable accommodation for his disability, and that it was error to issue an execution before Harris could seek a stay. We conclude that the judgment was not consonant with principles of due process, and accordingly we vacate the judgment and remand the case for further proceedings.2
1. Background. Harris was the beneficiary of the Section 8 Housing Choice Voucher Program (Section 8) of the United States Department of Housing and Urban Development, as administered locally through the Boston Housing Authority (BHA). See 42 U.S.C. § 1437f (2012) and related regulations. Harris had a "tenant-based" voucher.3 He is a disabled individual who suffers from mental illness, and he also receives services from the Department of Mental Health (DMH).4
Harris entered into a Section 8 lease with the landlord that gave him the right to occupy apartment thirty-three at 422 Columbia Road (apartment or property) in the Dorchester section of Boston. On May 18, 2016, Harris allegedly threw glass bottles from his apartment window intending to injure the landlord's employees standing in the common area below. The police were summoned and entered the apartment accompanied by the property manager.5 On the same day, the landlord served Harris with a notice voiding his tenancy pursuant to § 19, and ordering him to vacate the property and to remove all his belongings within two days.6 On May 20, 2016, the landlord, represented by counsel, filed this § 19 action in the Housing Court, seeking injunctive and declaratory relief. A judge issued an ex parte temporary restraining order prohibiting Harris from entering or trespassing on the property and authorizing the landlord to change the locks. After a hearing, the order was continued "until further order of the court."7 The same judge, who retained jurisdiction over the case, referred Harris to the tenancy preservation program (TPP) for assessment.8 Although Harris declined to participate in TPP, he agreed to develop a treatment plan in conjunction with his DMH case worker that "would allow him to reside in the subject premises and comply fully with the terms of his lease." Thereafter, the matter was continued on several occasions due to Harris's inpatient hospitalizations.
On August 9, 2016, a status hearing was held to discuss a treatment plan that would serve as a reasonable accommodation for Harris's disability and allow him to stay in the apartment. See 42 U.S.C. § 3604(f)(3)(B). At the hearing, Harris's DMH case worker described the proposed plan, which involved inpatient stabilization programs and treatment, daily receipt of medication from visiting nurses, treatment with a new psychiatrist at Boston Medical Center, and participation in a drop-in day program. The judge did not, however, believe that the DMH plan went far enough; she wanted Harris to either work or attend a day program for eight hours per day.
On August 11, 2016, the judge entered an order allowing Harris to return to the apartment as of September 1, 2016, if he was in compliance with the treatment plan that she drafted and incorporated into her order (August order).9 As part of that order, the judge also prohibited Harris from filing any more pleadings or documents in the case (or commencing any further actions against the landlord) without prior authorization of the court (gatekeeper order). Following a status conference on November 9, 2016, the judge found that Harris had not complied with her August order. She listed the deficiencies and ordered him to provide all the missing information and documents no later than the end of the month (November order). Although Harris subsequently submitted additional materials, the judge remained unsatisfied.10
While Harris continued his efforts to comply with the judge's August and November orders and to gain lawful reentry to the apartment, on December 4, 2016, the landlord moved for a default, pursuant to Mass. R. Civ. P. 55 (a), 365 Mass. 822 (1974), on the basis that Harris had "failed to serve or file an answer or otherwise defend as to the Complaint." The clerk entered a default on December 20, 2016. On January 19, 2017, the landlord moved, pursuant to Mass. R. Civ. P. 55 (b) (2), as amended, 463 Mass. 1401 (2012), for the entry of a final judgment and the issuance of execution for possession on the same basis.11 In response, Harris filed an "update" written by his rehabilitation specialist at the South End Community Health Center, explaining the efforts to bring Harris into full compliance with the treatment plan ordered by the judge. The specialist maintained that Harris's recent switch to a new community-based flexible support system, which offered "more regular" services and personalized monitoring, would allow Harris to meet the court-ordered plan requirements. He requested that Harris's engagement with these services "act in place of some of the time structuring elements" of the judge's treatment plan. The specialist confirmed that Harris was "appropriately and regularly" engaged with services, and actively seeking to meet the requirements and objectives of the treatment plan. Harris also filed a motion to reenter the apartment. The judge took no action because Harris "failed to obtain written permission of the court for filing [the] document" and Harris "was defaulted on 12/20/16." Harris's written request to file a motion, docketed on February 14, 2017, was not acted upon.
At a review hearing on February 15, 2017, the judge appointed a guardian ad litem (GAL) to assist Harris in achieving compliance with the treatment plan and stayed a decision on the landlord's motion for the entry of a default judgment. The GAL initially was unable to get the file from the Housing Court clerk's office and did not receive the order of appointment until February 23, 2017, notwithstanding that his report was due three days later. The GAL's mandate did not include assisting Harris with his defense. The GAL diligently undertook his assignment and filed two reports along with the documents and information he was able to secure on short notice.12
On April 18, 2017, the landlord filed a renewed motion for the entry of a final judgment and the issuance of the execution for possession, again citing Harris's default for "failure to plead or otherwise defend."13
Harris sought permission to file a response in accordance with the gatekeeper order.14 The judge denied Harris's motion, stating that he could respond at the oral argument. At a hearing on May 3, 2017, the judge determined that the information provided by the GAL was insufficient, ordered the GAL to prepare a proposal for a new treatment plan, and scheduled a hearing for May 10, 2017. The GAL submitted a proposed treatment plan as ordered.
On the same day that the judge took the GAL's proposed plan under advisement, she allowed the landlord's renewed motion for judgment. No hearing or argument on the landlord's renewed motion was ever held, thus denying Harris the ability to respond to the motion, either orally or in writing. Following the entry of judgment on May 16, 2017, Harris filed a timely "motion to reconsider judgment," which was denied after a hearing. An execution for possession to the landlord issued on June 28, 2017.15 Two days later, the landlord levied on it, dispossessing Harris of all rights in the apartment. On July 7, 2017, the judge allowed Harris's motion to stay the levy of execution pending appeal. However, she subsequently reversed herself because the levy had already occurred. On July 11, 2017, Harris filed a notice of appeal.
2. Discussion. a. Timeliness of appeal. Relying on Rule 12 of the Uniform Summary Process Rules (2004) ( rule 12 ), the landlord contends that Harris's notice of appeal was untimely because it was filed more than ten days after the judgment entered.16 We disagree. First, Harris's timely postjudgment motion stayed the commencement of the appeal period until June 26, 2017, the date that the judge's order denying Harris's motion was entered on the docket. See Youghal, LLC v. Entwistle, 484 Mass. 1019, 1020-1021, 141 N.E.3d 444 (2020) ; Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 857-858 & n.20, 120 N.E.3d 297 (2019) ; Manzaro v. McCann, 401 Mass. 880, 881-882, 519 N.E.2d 1337 (1988) ; Mass. R. A. P. 4 (a) (2), as appearing in 481 Mass. 1606 (2019). Second, the only specific timeframe provided in rule 12 relates to an appeal bond hearing. The ten-day period is instead fixed by the summary process statute, G. L. c. 239, § 5, a statute that is not the basis for the landlord's action. See Youghal, LLC, supra at 1020 n.5, 141 N.E.3d 444 ().
Section 19, in contrast, does not contain a timeframe for filing a notice of appeal. We conclude that for the plaintiff, who elected to proceed under § 19, and not § 5, the longer, thirty-day appeal period of the Massachusetts Rules of Appellate Procedure applies. See Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 ...
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