Steven Cosmos v. Anthony Savarese. ( 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
23-P-172
STEVEN COSMOS
vs.
ANTHONY SAVARESE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Defendant Anthony Savarese, the tenant in this summary
process action, appeals from a judgment in favor of his
landlord, plaintiff Steven Cosmos. Savarese argues that the
summary process complaint erroneously described him as a tenant
at will and, therefore, was fatally defective. Savarese also
argues error in the judge's factual findings and in the amount
of use and occupancy damages awarded. We affirm.
Cosmos is the owner of a three-unit building in Worcester.
On December 15, 2018, Cosmos entered into an agreement renting
one of the apartments to Savarese. The agreement stated that it
was for a term of months ending on June 30, 2020. The agreement
also included the following renewal provision: "Lessee agrees
that his/her occupancy of said premises beyond the term of this
lease shall not be deemed as a renewal of this lease for the
whole term but that acceptance by the Lessor of rent accruing
after the expiration of this lease shall be considered as a
renewal of this lease for one month only and for successive
periods of one month only." Savarese remained in the apartment
after June 30, 2020. On April 9, 2022, at a time when it
appears that Savarese was current on rent, Cosmos served a no-
cause, thirty-day notice to quit on Savarese.
On June 10, 2022, Cosmos filed this summary process action
seeking to recover possession of the premises. The complaint
stated that Savarese was a tenant at will who had been served
with notice to quit. A summary process trial was held on August
11, 2022. At trial, Cosmos testified that he had not received
rent from Savarese for June, July, or August, effectively since
serving the no-cause, thirty-day notice to quit on Savarese.
Savarese acknowledged that he had been "spotty" on paying rent
throughout his tenancy. After trial, the judge issued findings
and rulings awarding Cosmos possession of the apartment and
$4,050 in use and occupancy damages for June, July, and August.
The judge also concluded that Savarese was not entitled to a
stay of execution under G. L. c. 239, §§ 9, 10, and ordered that
execution "shall issue no later than ten . . . days after the
entry of judgment." After the resulting judgment entered,
Savarese appealed.
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On appeal, Savarese's primary argument is that he was a
lessee, not a tenant at will, and that the summary process
complaint, which described Savarese as a tenant at will, was
fatally defective. However, at the time Cosmos filed the
summary process complaint, the original term stated in the lease
had expired. While the lease also stated that "acceptance by
the Lessor of rent accruing after the expiration of this lease
shall be considered as a renewal of this lease for one month
only and for successive periods of one month only," that
language did not establish a new lease term. Consequently, a
tenancy at will resulted when Savarese continued to rent the
unit. See Farris v. Hershfield, 325 Mass. 176, 177 (1950) ("It
is an essential element in a lease for a term that there be a
demise for a period definitely fixed or at least capable of
definite ascertainment. Otherwise only a tenancy at will
results"). 1
Savarese also argues error in the judge's findings that
Savarese (1) did not file an answer and (2) did not provide any
testimony regarding how he would pay future rent if a stay of
execution were to be granted. Even if we assume that these
findings were erroneous, Savarese has shown no harm requiring
1 Savarese also argues that he should have received a notice to
cure any back rent due. This argument is unavailing where the
thirty-day notice to quit was not based on the nonpayment of
rent but was a no-cause notice to quit. See G. L. c. 186, § 12.
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reversal. The judge decided the case on the merits, not due to
Savarese's purported failure to file an answer. Likewise,
regardless of whether the judge should have granted a stay of
execution pursuant to G. L. c. 239, §§ 9, 10, no execution has
issued during the pendency of this appeal pursuant to Mass. R.
Civ. P. 62 (d), 365 Mass. 829 (1974), and Savarese has not shown
that he would have been entitled to any greater relief under
G. L. c. 239, §§ 9, 10. 2
Lastly, Savarese argues error in the amount of use and
occupancy damages awarded. Savarese acknowledges that he did
not pay his rent of $1,350 in June, July, and August of 2022,
but argues that (1) he prepaid $1,300 toward last month's rent
when he signed the lease and (2) the use and occupancy damages
should have been reduced by that amount. However, nothing in
the record shows that Savarese raised this argument below, and
it is therefore waived. See Carey v. New England Organ Bank,
446 Mass. 270, 285 (2006) ("issue not raised or argued below may
not be argued for the first time on appeal" [citation omitted]).
Moreover, it appears that Savarese has remained in the apartment
2 General Laws c. 239, § 9, authorizes a judge to grant a stay of
execution "for a period not exceeding six months or for periods
not exceeding six months in the aggregate, or, for a period not
exceeding twelve months or for periods not exceeding twelve
months in the aggregate in the case of premises occupied by a
handicapped person or an individual sixty years of age or
older." Here, the appeal has already been pending, and the
judgment has been stayed, for over one year.
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during the pendency of this appeal. In light of that fact,
Savarese has not explained why his prepayment of $1,300 toward
last month's rent should apply toward rent owed for June, July,
and August of 2022.
Judgment affirmed.
By the Court (Rubin, Neyman &
Walsh, JJ. 3),
Clerk
Entered: December 6, 2023.
3 The panelists are listed in order of seniority.
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