WATERMARK II MEMBER LLC v. STELLA KIM & Another.

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.

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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

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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."

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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.

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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.

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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.

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