Morse v. Ortiz-Vazquez

• Decision Date: 13 April 2021
• Docket Number: No. 20-P-342,20-P-342
• Citation: 99 Mass.App.Ct. 474,169 N.E.3d 205
• Parties: John MORSE v. Jorge ORTIZ-VAZQUEZ.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 474

169 N.E.3d 205

John MORSE

v.Jorge ORTIZ-VAZQUEZ.

No. 20-P-342

Appeals Court of Massachusetts, Hampden.

Argued January 14, 2021.

Decided April 13, 2021.

Uri Strauss, for the defendant.

Katharine Higgins-Shea, Holyoke, for the plaintiff.

Richard M.W. Bauer, Boston, Deena Zakim, Caitlin Creamer, Julia E. Devanthery, Susan Hegel, Cambridge, & Andrew L. Bardetti, for City Life/Vida Urbana, amicus curiae, submitted a brief.

Present: Blake, Desmond, & Hand, JJ.

BLAKE, J.

The defendant, Jorge Ortiz-Vazquez (tenant), appeals from a judgment entered in favor of the plaintiff, John Morse (landlord), awarding the landlord possession, unpaid rent, and fees and costs.¹ The question presented in this case is whether a Housing Court judge erred in precluding the tenant from filing a late answer to a complaint at a summary process eviction hearing, thereby preventing him from raising affirmative defenses. Concluding that this judge erred, we vacate the judgment.

1. Background. In June 2016, the landlord and the tenant entered into a residential lease agreement for an apartment owned by the landlord (apartment). In October 2018, prior to the eviction at issue here, the landlord commenced a summary process action against the tenant for nonpayment of rent. The landlord was represented by an attorney; the tenant, who proceeded pro se, did not file a timely answer.² His motion to file an answer late was allowed, without opposition.³ Based on the alleged presence of mold and mildew in the apartment, the tenant raised a conditions-based defense to possession and a counterclaim under the rent withholding statute. See G. L. c. 239, § 8A, first par.⁴ After a bench trial, a Housing Court judge (first judge) ruled in favor of the tenant on his affirmative defense and counterclaim under G. L. c. 239, § 8A.⁵ The tenant exercised his right to cure under the statute, preserving his tenancy. See G. L. c. 239, § 8A, fifth par. On December 21, 2018, a final judgment entered against the landlord.

A dispute quickly arose over whether the landlord properly remediated the unsanitary conditions in the apartment. Thus, the tenant began withholding rent again. By notice to quit dated January 28, 2019, the landlord terminated the tenant's tenancy for nonpayment of rent. On March 11, 2019, the landlord, represented by the same attorney as in the prior summary process action, filed another summary process summons and complaint, seeking unpaid rent of $1,100 and future rent or use and occupancy charges for the apartment. The tenant again appeared pro se and again missed the seven-day deadline for filing an answer. See Rule 3 of the Uniform Summary Process Rules (1993). On March 21, 2019, the original trial date set forth in the summons and complaint, the tenant appeared in court and submitted a motion to file an answer late, claiming that he "did not have any help due to [his] langu[a]ge problems."⁶ He requested a two-week extension to prepare for trial. In contrast to the first case, the landlord's attorney opposed the tenant's request to file a late answer, but assented to the two-week continuance. In his proposed answer, which was attached to the motion, the tenant stated, "The apartment continue[s] with mildew and I need to replace my personal belong[ing]s and they have not resolve[d] the hea[l]th issue yet." The trial was postponed for one day because of an issue with the technology in the court room. At that hearing on the motion to file a late answer, the tenant was represented by a limited assistance representation (LAR) attorney.⁷ A second Housing Court judge (second judge) denied the tenant's motion on the ground that a "[l]ate answer was permitted in [the] earlier case between the parties."⁸ The second judge said that the tenant was free to pursue his conditions-based claims in an independent action. With the consent of the landlord's attorney, the second judge continued the trial to April 4, 2019.

Due to a court oversight, the new trial date was not added to the court calendar, and no written notice was given to the parties. Although the case was neither listed on the docket nor called by the clerk, the landlord appeared for trial on April 4, 2019, but the tenant did not. The landlord's attorney requested and received the entry of a default for the tenant's failure to appear. See Rule 10 (a) of the Uniform Summary Process Rules (2004). The following day the tenant appeared at the court house only to learn he had misremembered the trial date. He immediately filed a motion to "remove" the default. On April 11, 2019, the tenant's motion was heard by the first judge, who had presided over the first trial.⁹ The tenant told the first judge that he had evidence to prove that the apartment contained "extreme mold and mildew conditions" and that he intended to defend the eviction under G. L. c. 239, § 8A, based on the continued presence of mold and mildew in the apartment.¹⁰ The first judge noted that "[t]hese exact conditions were in fact found to exist" at the prior trial. After weighing all the factors, including the court's scheduling error, the interests of the court to decide the case on the merits of the claim, and the tenant's pro se status, the first judge allowed the motion to remove the default. See Housing Court Standing Order 1-04(VI) (2004). He also scheduled a case management conference for April 22, 2019.¹¹

Although the LAR attorney filed a withdrawal of his representation, it was not docketed until April 30, 2019. Believing that he had withdrawn from the case, the LAR attorney did not appear at the April 22, 2019 conference. The docket reflected that the conference was "[r]escheduled" and, in fact, it was never held. As a result, the effect of the lack of an answer on the upcoming summary process trial remained unresolved.

On May 31, 2019, the parties appeared for trial. The trial judge was the second judge, the same judge who had denied the tenant's motion to file a late answer. The landlord was present with his attorney and two witnesses who were prepared to rebut the tenant's mold claim. The tenant appeared with the same LAR attorney, who filed his appearance that morning, a mold analysis and inspection report,¹² and photographs of the apartment. The second judge again precluded the tenant from presenting affirmative defenses under G. L. c. 239, § 8A. She also denied the LAR attorney's oral motion for reconsideration and his request to postpone the trial.

At the start of the trial, the tenant's LAR attorney objected to the second judge's refusal to allow the tenant to present his defenses. The second judge overruled the objection and reiterated that the tenant was free to contest the landlord's prima facie case, but that he was precluded from asserting affirmative defenses. With few other options, the tenant stipulated to the landlord's prima facie case.¹³ See Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 850-851, 120 N.E.3d 297 (2019) (Appendix); Cambridge St. Realty, LLC v. Stewart, 481 Mass. 121, 132-133, 113 N.E.3d 303 (2018). Judgment entered for the landlord for possession, and he was awarded $2,750 in back rent, plus court costs.

2. Legal framework. Summary process proceedings, which move faster than most other types of civil actions, "are governed by a distinct set of rules: the Uniform Summary Process Rules." Bank of Am., N.A. v. Rosa, 466 Mass. 613, 624, 999 N.E.2d 1080 (2013). These rules cover the basic procedural steps in summary process actions. See Adjartey, 481 Mass. at 835-836, 120 N.E.3d 297 ; Rule 1 & commentary of the Uniform Summary Process Rules (1980). In the private housing context, our statutes, case law, and the Massachusetts Rules of Civil Procedure may also apply to various aspects of summary process. See Adjartey, supra at 836-837, 120 N.E.3d 297. Eviction procedures in the public housing context are even more complicated. To fill in the gaps and to augment the rules, the Chief Justice of the Housing Court has issued standing orders that govern important points of procedure. Promulgated through the Chief Justice's statutory authority, these standing orders reflect the reality that a significant number of litigants move through the process with no attorney and no familiarity with the rules.¹⁴ See Adjartey, supra at 838-839, 120 N.E.3d 297 ; CMJ Mgt. Co. v. Wilkerson, 91 Mass. App. Ct. 276, 283, 75 N.E.3d 605 (2017).

We recognize that presiding over cases involving pro se litigants can be challenging, not least because "[w]hile judges must apply the law without regard to a litigant's status as a self-represented party, see Mmoe v. Commonwealth, 393 Mass. 617, 620 [473 N.E.2d 169] (1985) ..., our courts have recognized that self-represented litigants must be provided the opportunity to meaningfully present claims and defenses. See Carter v. Lynn Hous. Authy., 450 Mass. 626, 637 n.17 [880 N.E.2d 778] (2008) ; Loebel v. Loebel, 77 Mass. App. Ct. 740, 743 n.4 [933 N.E.2d 1018] (2010)." I.S.H. v. M.D.B., 83 Mass. App. Ct. 553, 560-561, 987 N.E.2d 223 (2013). And a judge presiding over a summary process case must construe and apply the Uniform Summary Process Rules in a manner that will "secure the just, speedy, and inexpensive" resolution of the case. Rule 1 of the Uniform Summary Process Rules. The objectives of "speedy, and inexpensive," id., must be tempered with Housing Court Standing Order 1-04, governing time standards and case management procedures. See Adjartey, 481 Mass. at 838, 120 N.E.3d 297. Housing Court judges are required to "apply the rules in a fair, reasonable and practical manner consistent with the legitimate interests of all parties." Housing Court Standing Order 1-04(VI). See CMJ Mgt. Co., 91 Mass. App. Ct. at 283, 75 N.E.3d 605. This standing order provides that "[e]ach case is unique and [that] each judge ... must, consistent with applicable statutes and the rules of court, exercise sound judgment in a manner that affords the parties a fair...