WATERMARK II MEMBER LLC v. STELLA KIM & Another. ( 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-377
WATERMARK II MEMBER LLC 1
vs.
STELLA KIM & another. 2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants, Stella Kim and Justin Hwang (tenants),
appeal from a judgment in favor of the landlord, Watermark II
Member LLC, for possession of an apartment and damages for
unpaid rent following a bench trial in the Housing Court, as
well as from the denial of motions to vacate that judgment. We
conclude that the "Resident Ledger" (ledger) was erroneously
admitted without foundation establishing it as a business record
and that the error prejudiced the tenants on the amount of
monetary damages but not on the claim for possession. Further
concluding that the motion judge acted within her discretion in
denying Kim's late jury demand, and that the trial judge
properly found that Hwang had actual notice of the proceedings,
1 Doing business as Watermark Kendall East Gables Residential.
2 Justin Hwang.
we affirm the judgment for possession but vacate the monetary
damages and remand for a new trial on those damages.
1. Ledger. "A record falls within the scope of the
business records hearsay exception 'if the judge finds that it
was (1) made in good faith; (2) made in the regular course of
business; (3) made before the action began; and (4) the regular
course of business to make the record at or about the time of
the transaction or occurrences recorded.'" Commonwealth v.
Kozubal, 488 Mass. 575, 588 (2021), cert. denied, 142 S. Ct.
2723 (2022), quoting Commonwealth v. Fulgiam, 477 Mass. 20, 39
(2017). We review a trial judge's evidentiary ruling for an
abuse of discretion, see Kozubal, supra at 589, and, if we find
error, we reverse only if that "error has injuriously affected
the substantial rights of the parties." David v. Kelly, 100
Mass. App. Ct. 443, 451 (2021), quoting Coady v. Wellfleet
Marine Corp., 62 Mass. App. Ct. 237, 244 (2004).
Here, a ledger was admitted over Kim's objection without
any foundational evidence -- either through testimony or
certification -- that it was made or kept in the regular course
of business. In fact, the assistant property manager who
testified on behalf of the landlord admitted to altering it at
the trial attorney's suggestion. Accordingly, it remained
inadmissible hearsay, and its admission was error.
2
The ledger listed, among other charges, the alleged sums of
outstanding rent. Although it was undisputed that Kim was
behind on rent, the amount overdue was contested. Kim had
stopped paying the full rent in April 2020 and had paid only
$6,000 since that time. 3 Under the lease, the tenants owed
$2,388 per month until the lease expired on August 16, 2020,
then "[t]he monthly rental rate [would] be the market rate (at
the time of the applicable extension) for a comparable apartment
in the development plus a month-to-month premium of 1000." Kim
testified that, "because the place was empty," other apartments
in the complex were being rented at that time for $1,388 per
month or $1,665 per month with two months free. The ledger
amount, however, assumed that the "market rate" for the
apartment was $2,388 and listed the amount due for each month
after the lease expired as $3,388. 4 The landlord presented no
other evidence to prove the "market rate" for "a comparable
apartment in the development." Nonetheless, judgment entered
against the defendants for $56,760 plus costs, representing the
amount due in rent according to the ledger. Because the
3 Although both Kim and Hwang were tenants under the lease, Hwang
did not live at the apartment, and there is no evidence that he
made any rent payments.
4 The ledger originally listed the rent due each month after the
lease expired as $2,666, but the assistant property manager
later "corrected" those entries to reflect $3,388 in rent due
each month.
3
inadmissible ledger was the only basis for this calculation of
damages, the judgment for damages must be reversed.
Judgment for possession, however, may stand because there
is no dispute that the defendants owed a considerable amount of
unpaid rent. Kim admitted that she paid only $6,000 between
April 2020 and the trial, which is well below the amount she
owed in overdue rent under any view of the evidence. Even if
the ledger had been excluded, the judgment for possession would
have stood. Accordingly, the error was not prejudicial to the
judgment for possession.
2. Late jury trial request. "The provisions of Mass. R.
Civ. P. 38 shall apply [to summary process actions] insofar as
jury trial is available in the court where the action is
pending, provided that," amongst other conditions not relevant
here, "in cases commenced in a court where jury trial is
available, a demand for jury trial shall be filed with the court
no later than the date on which the defendant's answer is due."
Rule 8 of the Uniform Summary Process Rules (1980). "Generally,
the right to a jury trial may be waived by failure to make a
timely demand." CMJ Mgt. Co. v. Wilkerson, 91 Mass. App. Ct.
276, 282 (2017). See Mass. R. Civ. P. 38 (d), 365 Mass. 800(1974). To the extent that relief from such waiver is
permissible in a summary process action, see Mass. R. Civ. P.
39 (b), 365 Mass. 801 (1974) ("notwithstanding the failure of a
4
party to demand a jury in an action in which such a demand might
have been made of right, the court in its discretion upon motion
may order a trial by jury of any or all issues"), the judge's
discretion "is 'largely unlimited.'" Senior Hous. Props. Trust
v. HealthSouth Corp., 447 Mass. 259, 270 (2006), quoting
Reporters' Notes to Mass. R. Civ. P. 39 (b), Mass. Ann. Laws,
Rules of Civil Procedure at 649 (LexisNexis 2005). Because the
decision "rests with the trial judge," it "is subject to review
only for an abuse of discretion." Calvao v. Raspallo, 92 Mass.
App. Ct. 350, 352 (2017). We discern none.
Here, the tenants' answer was due three days before the
mediation. See Housing Court Standing Order 6-20(2)(a)(v)
(2020). 5 The defendants filed neither an answer nor a jury
demand by that deadline. A motion judge allowed the defendants
to file a late answer but not a late jury demand. That decision
was well within the judge's discretion. See Arthur D. Little,
Inc. v. Commissioner of Health & Hosps. of Cambridge, 395 Mass.
535, 544 (1985) (contention that judge should have granted jury
5 Standing Order 6-20 subsequently was amended; at the relevant
times Standing Order 6-20(2)(a)(v) provided, "Answers in pending
and new summary process cases shall be due no later than three
(3) business days before the date of the first-tier court event.
An Answer that is filed in accordance with this Order shall be
deemed timely, including in a pending case. An Answer that is
not filed in accordance with this Order shall be left to
judicial discretion and determination."
5
trial where it was waived under the applicable rule
"meritless").
Although the tenants argue that the motion judge failed to
exercise discretion at all, we are not persuaded. The landlord
did not oppose the request on the ground that it was outside the
judge's authority but rather that she should exercise her
discretion to deny the request because it "would be a delay
tactic that's unnecessary and prejudicial" in light of the
tenants' nonpayment of rent. Although the judge described the
state of law "back in normal times," she described no legal
impediment to her granting relief, if she so chose, under the
standing order. Accordingly, we discern no abuse of discretion.
See Diamond v. Pappathanasi, 78 Mass. App. Ct. 77, 99 (2010).
3. Notice. "An elementary and fundamental requirement of
due process in any proceeding which is to be accorded finality
is notice reasonably calculated, under all of the circumstances,
to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections."
Andover v. State Fin. Servs., Inc., 432 Mass. 571, 574 (2000),
quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 314 (1950). A tenant receives notice of an eviction action
first through a notice to quit (before the landlord files a
summary process action) and second when the landlord serves a
"summons and complaint." Adjartey v. Central Div. of the Hous.
6
Court Dep't, 481 Mass. 830, 835 (2019). If the landlord does
not properly serve the summons and complaint, and the tenant
does not receive actual notice, the tenant may have a due
process defense against enforcement of a default judgment. See
Cassouto-Noff & Co. v. Diamond, 487 Mass. 833, 836 (2021) ("Due
process is a constitutional baseline; judgments cannot be
enforced unless it is satisfied"). Where, however, the tenant
receives actual notice of the action notwithstanding improper
service, "the defense of 'insufficiency of service of process
. . . is waived . . . if it is neither made by motion . . . nor
included in a responsive pleading.'" Raposo v. Evans, 71 Mass.
App. Ct. 379, 383 (2008), quoting Mass. R. Civ. P. 12 (h) (1),
365 Mass. 757 (1974). Cf. Cambridge St. Realty, LLC v. Stewart,
481 Mass. 121, 127 (2018) (noting that tenant waived challenge
to adequacy of notice to quit by failing to object at trial).
Here, the record reflects that Hwang had actual notice of
the action several months before the November 2021 trial because
he signed a notice of limited appearance for an attorney who
appeared on both tenants' behalf in February 2021. Despite this
actual knowledge, Hwang did not challenge the service of process
or the adequacy of the notice to quit until after the trial.
7
The motion judge properly denied Hwang's late challenge to
service of process as waived. 6
4. Conclusion. So much of the order entered February 11,
2022, as denied the defendants' motions to vacate and dismiss
and for new trial is affirmed. So much of the judgment as
awarded monetary damages to the plaintiff is vacated, and the
matter is remanded for a new trial as to damages only. In all
other respects the judgment, including so much of the judgment
as awarded possession to the plaintiff, is affirmed.
So ordered.
By the Court (Ditkoff,
Englander & Walsh, JJ. 7),
Clerk
Entered: December 18, 2023.
6 To the extent that Hwang's argument on appeal is that the
Housing Court lacked personal jurisdiction over him, that
argument is waived too because Hwang did not timely raise it in
the Housing Court. See Raposo, 71 Mass. App. Ct. at 383 n.15.
In any event, we note that Hwang was a signatory to the lease
for a Massachusetts property, and that this summary process
action arises out of the lease.
7 The panelists are listed in order of seniority.
8