25 CENTER ROAD, LLC v. PATRICK JOHN WESTOVER, Trustee, & Others. ( 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-725
25 CENTER ROAD, LLC
vs.
PATRICK JOHN WESTOVER, trustee,1 & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants appeal from the Housing Court entry of a
summary judgment for possession in favor of the plaintiff, for a
property formerly owned by a trust of the defendant, Patrick
Westover (Westover). We affirm.
Facts. The defendants reside at 25 Center Road, Shirley.
Westover has lived in the home since he was an infant, and then
inherited it from his parents. In 2014, the town of Shirley
recorded a tax taking lien against the property. The
plaintiff's predecessor-in-interest, Tallage Davis (Davis),
commenced an action in the Land Court to foreclose on the tax
lien, and he obtained a judgment against the trust on January
1 Of the Westover Family Trust
2 Patrick John Westover; Doreen J. Williamson, III; Ernest J.
Westover, II; Frank L. Westover.
3, 2020. In April 2021, Davis served the defendants with a
notice to quit, and then commenced an eviction action in the
Housing Court in June 2021. In November 2021, Davis moved for
summary judgment on its claim for possession of the property,
and substituted the plaintiff, 25 Center Road, LLC, as a party
to the case. In March 2022, the defendants filed an opposition
to the motion for summary judgment. The Housing Court granted
25 Center Road, LLC's motion for summary judgment, and the
defendants timely appealed.
Discussion. We review a decision to grant summary judgment
de novo. See Le Fort Enters., Inc. v. Lantern 18, LLC, 491
Mass. 144, 149 (2023). "Summary judgment is appropriate where
there is no material issue of fact in dispute and the moving
party is entitled to judgment as a matter of law. . . . We
review the evidence in the light most favorable to the party
against whom summary judgment entered." Id. at 148-149, quoting
HSBC Bank USA, N.A. v. Morris, 490 Mass. 322, 326-327 (2022).
The defendants claim that the underlying Land Court
judgment that resulted in the transfer of ownership of the
property to Davis is void because they did not receive notice of
the foreclosing entity's petition to foreclose. Even if the
defendants had presented facts to support their argument, which
cannot be found in this record, the Housing Court judge was
correct in determining that would still not be valid grounds to
2
deny the motion for summary judgment. The Land Court "has
exclusive jurisdiction of proceedings to foreclose the right of
redemption from tax titles under c. 60 . . . . Its decisions or
decrees in subject matters within its jurisdiction cannot be
attacked collaterally."3 Bell v. Eames, 310 Mass. 642, 645
(1942). See Tetrault v. Bruscoe, 398 Mass. 454, 460 (1986)
("attack on the integrity of a judgment of registration may only
be asserted in Land Court"; Probate and Family Court lacked
power to encumber registered land by declaring existence of
prescriptive easement). Here, the defendants neither defended
their position in Land Court, nor filed a motion for
reconsideration or appealed the Land Court's decision. As the
Housing Court judge correctly determined, the defendants'
argument was an attempt to collaterally attack the Land Court's
decision.
The defendants also argue that their claims for unjust
enrichment raise issues of material fact precluding entry of
summary judgment. General laws c. 239, § 8A, outlines defenses
available to tenants facing eviction. "Based on the plain
language of the statute, an actionable counterclaim or defense
under this provision must meet two requirements: (1) the defense
3 By statute, the Land Court has exclusive jurisdiction over
petitions for "foreclosure of and for redemption from tax titles
under chapter sixty." G. L. c. 185, § 1 (b).
3
or counterclaim must 'relat[e] to or aris[e] out of' the
tenancy; and (2) the subject matter of the defense or
counterclaim must be based on either 'a breach of warranty,' 'a
breach of any material provision of the rental agreement,' or 'a
violation of any other law.'" Meikle v. Nurse, 474 Mass. 207,
212 (2016), quoting G. L. c. 239, § 8A. The final category,
"violation of any of other law" has been held to encompass, not
"the universe of laws" but instead only "law[s] enacted to
protect a tenant's rights in the landlord-tenant relationship."
Id. at 212-213. These include the security deposit statute and
the covenant of quiet enjoyment. Id. at 213
In their answer in the Housing Court, the defendants
interposed a defense that they should not be evicted because the
foreclosing entity purchased the property for less than fair
market value, and that because they have been paying utilities,
the appellant has been unjustly enriched. Even taking these
facts in a light most favorable to the defendants, because these
arguments do not fall within the ambit of G. L. 239, § 8A, they
4
do not present cognizable defenses to the judgment of
possession.
Judgment affirmed.
By the Court (Meade,
Hershfang & D'Angelo, JJ.4),
Clerk
Entered: October 6, 2023.
4 The panelists are listed in order of seniority.
5