Candace Langevin v. Dawn Theresa Booth-Desmarais. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-86
CANDACE LANGEVIN
vs.
DAWN THERESA BOOTH-DESMARAIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On November 10, 2020, Candace Langevin (landlord) filed in
the Housing Court a summary process complaint against her
daughter, Dawn Booth-Desmarais (tenant). The complaint alleged
that the tenant failed to vacate after receiving a thirty-day
notice to quit. The tenant did not file an answer or raise any
counterclaims. Following a bench trial on February 4, 2021, the
court entered judgment for the landlord for possession and
stayed execution until June 1, 2021. We affirm.
Background. As reflected in the trial transcript and the
judge's findings of fact, the parties did not dispute most of
the material facts. According to that evidence, the landlord
owned a three bedroom, one bath ranch in Millbury, where she
lived alone. She was lonely following the death of her husband
and asked the tenant and her children to live with her.
Converting a garage, the landlord added an additional bedroom
and bathroom. The tenant and her minor children moved into the
subject property in July 2017. Through a verbal agreement, the
tenant paid $625 per month. Due to rising costs associated with
the property, the parties agreed in 2019 to an increased rent of
$775 per month. The tenant always remained current on the rent
payments. The landlord split her time between the subject
property and another property in Florida. By October 2019, the
landlord lived in Florida and did not return to the subject
property. After expenses continued to rise, the landlord could
no longer "afford to keep the house in Millbury." On April 17,
2020, the landlord served on the tenant a notice to quit the
premises by June 1, 2020. The tenant acknowledged receiving the
written notice.
The parties disputed the nature and duration of the
tenancy. The tenant claimed to have exclusive possession of the
premises until 2025 when the tenant's daughter graduated from
high school. According to the landlord, she expected to return
to the premises from Florida in 2019 for Christmas, but claimed
that the tenant told her that she "couldn't return to the
house." The landlord acknowledged promising her grandchildren
that they could live in the house until 2025 "if the money
lasted and it hasn't lasted."
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The judge prepared written findings of fact and conclusions
of law, concluding:
"The Court finds the parties entered into an oral tenancy
at will agreement in July of 2017 for $625.00 in monthly
rent with both parties being able to use the Premises. A
new oral tenancy at will was established in Fall of 2019
for $775.00 in monthly rent. The Plaintiff properly
terminated this oral tenancy at will and is entitled to
possession."
The judge stayed execution until June 1, 2021, to enable the
tenant's children to finish the academic year and to provide the
tenant sufficient time to secure a new residence.
Discussion. On appeal, the tenant raises the following
claims supported by numerous materials that were not presented
at trial: (1) a signed lease allows her to remain on the
property until 2025; (2) she agreed to the rent increase because
the landlord agreed to allow her to remain on the property until
2025; (3) the property has been subject to extensive flooding;
(4) her children deserve to stay in a secure and healthy home
until the date agreed upon; (5) the residence contains extensive
mold, mildew, and other microorganisms; (6) a massive sewer leak
occurred on the premises in May 2021; (7) the landlord has taken
no steps to clean up the sewer leak as required by the town; (8)
the property has a massive rodent and insect problem; (9) the
landlord has people harass the tenant by driving by and making
hang up calls; (10) the landlord has sufficient money to
maintain the property; (11) the tenant and her children have
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suffered great medical and respiratory stress due to the
condition of the property; (12) the tenant cannot afford to live
anywhere but on the streets; and (13) the landlord was dishonest
with the realtor about property defects. In addition to these
claims, the tenant has included a prayer for relief that
includes allowing the tenant to remain on the property until the
summer of 2025, ordering the landlord to remedy all sanitary
code violations, and awarding damages approaching $5 million.
With the exception of the claim about the duration of the
tenancy, all the claims raised by the tenant are being asserted
for the first time on appeal. Despite having opportunities to
do so, the tenant did not file an answer or counterclaim in the
Housing Court and did not introduce any exhibits at trial. See
Rule 3 of the Uniform Summary Process Rules (1993) ("defendant
shall . . . state in the answer any affirmative defenses which
may be asserted"); Rule 5 of the Uniform Summary Process Rules
(1980) ("right to counterclaim shall be deemed to be waived as
to the pending action if such a claim is not filed with the
answer . . . unless the court shall otherwise order on motion
for cause shown"). By raising the claims for the first time on
appeal, the tenant deprived the trial judge of the ability to
review the claims and deprived the landlord of a fair
opportunity to challenge the claims. "An issue not raised or
argued below may not be argued for the first time on appeal."
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Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol
County, N.A., 405 Mass. 420, 421 n.2 (1989). See Adjartey v.
Central Div. of the Hous. Court Dep't, 481 Mass. 830, 855 (2019)
("tenant must generally assert any affirmative defenses and
counterclaims in the answer"). The tenant's pro se status does
not excuse the waiver of these claims because pro se litigants
"are held to the same standards as litigants who are represented
by counsel." Davis v. Tabachnick, 425 Mass. 1010, 1010, cert.
denied, 522 U.S. 982 (1997). A pro se defendant is expected "to
understand and set forth his or her legal rights, or risk
waiving them." Adjartey, 481 Mass. at 855. Therefore, we do
not consider these belated and new claims.
As to the claim about the duration of the tenancy, we
discern no error in the judge's conclusion that the landlord was
entitled to possession of the premises after properly
terminating a tenancy at will. "When reviewing the decision of
a trial judge in a summary process action, 'we accept [the
judge's] findings of fact as true unless they are clearly
erroneous,' but 'we scrutinize without deference the legal
standard which the judge applied to the facts." Cambridge St.
Realty, LLC v. Stewart, 481 Mass. 121, 123 (2018), quoting
Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 306 (2005).
Undisputed testimony at trial showed that the parties agreed to
rent the premises for $625 per month and later agreed to $775
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per month. The parties stipulated that the tenant remained
current on the agreed rent payments and had lawful possession of
the premises before receiving the notice to quit. Based upon
this evidence, the judge could conclude that a tenancy at will
existed. See Mastrullo v. Ryan, 328 Mass. 621, 624 (1952) ("If
there is nothing more than payment and acceptance, a tenancy at
will is created"); Belizaire v. Furr, 88 Mass. App. Ct. 299, 303
(2015) ("There are two essential requirements for the creation
of . . . a tenancy [at will]: first, a contractual agreement
between the landlord and the tenant, and second, that the tenant
exclusively occupy the premises"). Because the tenant
acknowledged that she received the notice to quit, the judge
could further conclude that the landlord provided the proper
notice and was entitled to possession of the premises. See
Williams v. Seder, 306 Mass. 134, 137 (1940) (tenancy at will
"could be terminated by a written notice in accordance with
[G. L. c. 186, § 12]").
Based upon the evidence presented, the judge properly
declined to accept the tenant's claim that the landlord promised
in 2017 to rent the premises to the tenant until 2025. "Any
promise involving real property is enforceable only if that
promise meets the [writing] requirements of the Statue of
Frauds, G. L. c. 259, § 1." Schwanbeck v. Federal-Mogul Corp.,
412 Mass. 703, 709 (1992). "An estate or interest in land
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created without an instrument in writing signed by the grantor
or by his attorney shall have the force and effect of an estate
at will only, and no estate or interest in land shall be
assigned, granted or surrendered unless by such writing or by
operation of law." G. L. c. 183, § 3. The tenant claimed that
the night before the trial she found a "standard residential
lease" form that contained the terms of the parties' rental
agreement. The judge asked the tenant, "what's the term of it?"
Reading from the document, the tenant replied that the lease was
to begin on September 1, 2017, "and shall end on blank." Upon
questioning from the judge, the tenant acknowledged that the
document also required a rental payment of $1,400. The tenant
further acknowledged that the parties never performed according
to the terms of the document. As the tenant put it, "that's
what she wanted, and I was like yeah, we can't do that." Thus,
the record supports the judge's conclusion that the landlord
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properly terminated the tenancy at will and was entitled to
possession of the premises.
Judgment affirmed.
By the Court (Neyman, Sacks &
Hodgens, JJ.1),
Clerk
Entered: May 4, 2023.
1 The panelists are listed in order of seniority.
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