L&S REALTY LLC v. KAREN R. MERRITT & 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-355

L&S REALTY LLC

vs.

KAREN R. MERRITT & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this summary process action, defendants Karen R. Merritt

and her son Charles Cronan (the defendants) appeal from a

February 8, 2022 order of the Housing Court striking their

notice of appeal from a judgment for possession for the

plaintiff L&S Realty LLC, and dismissing their appeal from that

judgment. As of that date, the defendants' timely request for

review of an appeal bond order, G. L. c. 239, § 5 (f)-(g), was

pending before a single justice of the Appeals Court. The

Housing Court's dismissal of the defendants' appeal from the

judgment effectively deprived them of the opportunity to

exercise their statutory right to review of the appeal bond

1Charles Cronan. James M. Cronan, Molly R. Cronan, and
Joseph Cronan are also listed as defendants on the docket of the
Housing Court summary process action, but are not parties to
this appeal.
order. In those circumstances, we vacate the order of the

Housing Court striking the defendants' notice of appeal from the

judgment and dismissing that appeal. In addition, we affirm two

orders of the single justice.

Background. In a foreclosure sale in 2019, the plaintiff

bought the property at issue, which includes a single-family

home in Rehoboth. The plaintiff brought an action for

declaratory relief to determine who was occupying the property,

and then a summary process action for possession of the property

against the defendants, as well as James, Molly, and Joseph

Cronan. In March 2021, the Housing Court judge ordered the

defendants to pay use and occupancy in an amount originally set

at $4,200 per month, later reduced retroactively to $2,500

monthly.

On September 20, 2021, summary judgment issued for the

plaintiff for possession of the property. The plaintiff moved

to amend the judgment to correct an error in the calculation of

the amount. The defendants timely moved for relief from the

judgment, pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828

(1974), which the judge denied on November 3, 2021. On Monday,

November 15, 2021, the defendants filed a notice of appeal from

the judgment. After a hearing, the judge allowed the

plaintiff's motion to correct the amount of the judgment, and an

amended judgment issued November 17, 2021.

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The defendants moved under the indigent court costs law,

G. L. c. 261, §§ 27A-27G, to waive an appeal bond. The

plaintiff opposed waiver of the appeal bond, moved to strike the

defendants' notice of appeal from the judgment, and moved for

issuance of execution. After a hearing, on December 31, 2021,

the judge ordered that the defendants post an appeal bond of

$12,000 and pay $2,500 monthly use and occupancy, concluding

that the defendants and James, Molly, and Joseph Cronan were

"not collectively indigent" and had not presented a nonfrivolous

issue for appeal.2

On January 7, 2022, the defendants filed a timely notice of

appeal from the appeal bond order in the Housing Court, and then

petitioned a single justice of this court for relief from that

order and for a stay of execution of the eviction. While that

petition was pending, on February 8, 2022, on the plaintiff's

motion, the Housing Court judge struck the defendants' notice of

appeal from the judgment as untimely and dismissed that appeal

on the grounds that the defendants had failed to post the appeal

bond or pay use and occupancy. The defendants filed a timely

notice of appeal from that order dismissing their appeal from

2 The propriety of the judge's application of a "collective
indigency" standard is not before us, and so we do not reach
that issue. We note that the appeal bond order contains little
or no information as to the indigency of the two defendants who
are parties to this appeal. See U.S. Bank Trust, N.A. v.
Johnson, 96 Mass. App. Ct. 291, 298 (2019).

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the judgment. An execution issued, and the judge denied the

defendants' motion for stay of execution.

On the defendants' petition for relief from the appeal bond

order, on March 8, 2022, the single justice concluded that, by

dismissing their appeal from the judgment, the Housing Court

judge had deprived the defendants of the opportunity for review

by the single justice of the appeal bond order. The single

justice therefore concluded that the defendants had a likelihood

of success on their appeal from the dismissal of their appeal

from the judgment. The single justice stayed execution on the

judgment for possession.3

The plaintiff moved for the single justice to reconsider

her order, arguing that the Housing Court judge properly

dismissed the defendants' appeal from the judgment because their

notice of appeal from the judgment was not timely and they had

failed to post the appeal bond or pay use and occupancy. The

single justice denied the motion to reconsider, concluding that

the notice of appeal was timely and that "[u]se and occupancy

payments may not be required . . . as a result of the

deprivation of a statutory right to review" of the appeal bond

3 The single justice noted that either party could remedy
the situation by requesting that the Housing Court vacate the
dismissal of the judgment, after which the defendants' petition
for relief from the appeal bond order could promptly be heard by
the single justice. Neither party did so.

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order. The plaintiff appealed from the single justice's orders.

That appeal was consolidated with the defendants' appeal from

the order dismissing their appeal from the judgment. We now

consider both appeals.

Discussion. 1. The defendants' appeal. The defendants

appeal from the February 8, 2022 order of the Housing Court

dismissing their appeal from the judgment. They argue that the

dismissal of that appeal effectively prevented them from

exercising their statutory right to seek review from a single

justice of the Housing Court's December 31, 2021 appeal bond

order.4 We agree.

a. The defendants' right to review of appeal bond order.

Under G. L. c. 239, § 5 (f), the defendants have a statutory

right to review by a single justice of this court of the Housing

Court's December 31, 2021 appeal bond order. A single justice's

review of an appeal bond order is de novo. See Bank of N.Y.

Mellon v. King, 485 Mass. 37, 41 (2020). In considering an

appeal bond order, the single justice "shall review" the Housing

Court judge's findings and the amounts of both the bond and the

use and occupancy payments "as if [the single justice] were

initially deciding the matter," and the single justice may

4 As mentioned above, James, Molly, and Joseph Cronan did
not petition the single justice for review of the appeal bond
order and are not parties to this appeal. We do not consider
any issues pertaining to them.

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revise or rescind the amounts ordered in the appeal bond order,

§ 5 (f). That statute specifically provides for prompt review

of an appeal bond order, requiring the single justice to conduct

the review "at the next sitting," § 5 (f), and the clerk of this

court to "schedule a speedy hearing" on the matter, G. L. c.

239, § 5 (g). Once the single justice has reviewed the appeal

bond order, the single justice's order is "the effective final

order," after which the appeal may be dismissed as a

"ministerial consequence" of that order (citation omitted).

21st Mtge. Corp. v. DeMustchine, 100 Mass. App. Ct. 792, 798

(2022).

The defendants sought to exercise their G. L. c. 239,

§ 5 (f), rights when on January 7, 2022, they timely filed a

notice of appeal from the appeal bond order, on February 3,

2022, moved to compel the Housing Court to comply with G. L. c.

239, § 5 (g), by forwarding to the single justice the papers

relevant to the appeal bond order, and on February 4, 2022,

petitioned the single justice for review of the appeal bond

order. However, as the single justice pointed out, once the

Housing Court on February 8, 2022, dismissed the defendants'

appeal from the judgment, the single justice no longer had

authority to review the appeal bond order. Thus the premature

dismissal of the defendants' appeal from the judgment

effectively prevented the defendants from exercising their

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rights under § 5 (f). In those circumstances, the dismissal of

the defendants' appeal from the judgment must be vacated so that

they may exercise their statutory rights to review of the appeal

bond order. In that review, the defendants will be required to

demonstrate to the single justice both that they are indigent

and that they have "any defense which is not frivolous." G. L.

c. 239, § 5 (e). See Adjartey v. Central Div. of Housing Court

Dep't, 481 Mass. 830, 859 (2019). We take no position on the

merits of the parties' arguments on that review.

b. Timeliness of the defendants' notice of appeal from

judgment. The plaintiff argues that notwithstanding the

defendants' statutory rights to review of the appeal bond order,

the Housing Court judge properly dismissed the defendants'

appeal from the judgment on the basis that their notice of

appeal was untimely. That argument is unavailing. The judgment

entered on September 20, 2021. Within ten days, on September

27, 2021, the defendants moved for relief from judgment pursuant

to Mass. R. Civ. P. 60 (b), which tolled the appeal period. See

Mass. R. A. P. 4 (a) (2) (C), as appearing in 481 Mass. 1606

(2019). See also Youghal, LLC v. Entwistle, 484 Mass. 1019,

1020-1021 (2020); Wells Fargo Bank, N.A. v. Sutton, 103 Mass.

App. Ct. 148, 154 (2023). On November 3, 2021, the judge denied

the defendants' motion. On November 15, 2021, the defendants

filed a notice of appeal from the judgment. Because that notice

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of appeal was filed within the appeal period running from entry

of the order on the defendants' motion, see Mass. R. A. P. 4 (a)

(2) (C), it was timely. See Youghal, LLC, supra. And because

the judge based the dismissal of the defendants' appeal from the

judgment in part on a mistaken belief that their notice of

appeal was not timely, the dismissal of the appeal must be

vacated. See McNeff v. Cerretani, 489 Mass. 1024, 1026 (2022)

(vacating dismissal of appeal based on Housing Court judge's

mistaken belief that he lacked authority to allow motion to file

appeal bond late).

To the extent that the plaintiff argues that the

defendants' November 15, 2021 notice of appeal was two days

premature because the judge did not rule on the plaintiff's

motion to amend the judgment and issue a corrected judgment

until November 17, 2021, we are not persuaded. The plaintiff's

pending motion sought to correct a clerical error pursuant to

Mass. R. Civ. P. 60 (a), 365 Mass. 828 (1974), and was not one

of the types of motions listed in Mass. R. A. P. 4 (a) (2), as

appearing in 481 Mass. 1606 (2019), that would toll the

defendants' appeal period from the judgment. See Mass. R. A. P.

4 (a) (3), as appearing in 481 Mass. 1606 (2019) ("A notice of

appeal filed before the disposition of any timely motion listed

in Rule 4[a][2] shall have no effect"). Cf. Youghal, LLC, 484

Mass. at 1020-1021 (tenants' notice of appeal not untimely when

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filed within ten days after denial of Mass. R. Civ. P. 59 motion

but before entry of judgment). See also Wells Fargo Bank, N.A.,

103 Mass. App. Ct. at 154 (even if deadline for filing of notice

of appeal had been tolled by pandemic eviction moratorium, that

"simply meant that a notice of appeal could be filed until [at

least] the end of the tolling period; it did not mean that a

notice of appeal could not be filed until after the tolling

period ended").

c. The defendants' failure to pay use and occupancy. The

plaintiff argues in the alternative that the Housing Court judge

properly dismissed the appeal from the judgment because the

defendants failed to pay use and occupancy as required by the

prejudgment order that entered in March 2021.5 See Davis v.

Comerford, 483 Mass. 164, 177 (2019) (Housing Court may order

interim use and occupancy payments during pendency of summary

process case). Before the Housing Court judge, the plaintiff

argued strenuously that the defendants timely making all use and

occupancy payments was a "condition precedent" to their appeal

from the judgment.6 The judge dismissed the appeal from the

5 In April 2021, the defendants petitioned the single
justice pursuant to G. L. c. 231, § 118, for review of the
amount of the use and occupancy payments, which was denied.

6 The plaintiff acknowledged that the defendants had made
some use and occupancy payments, though not on time. The
parties stipulated that as of November 2021 the defendants had
paid $11,500 in use and occupancy.

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judgment in part because the defendants had not paid use and

occupancy under either the prejudgment order or the appeal bond

order.

To the extent that the judge based the dismissal of the

defendants' appeal from the judgment on their failure to pay

interim use and occupancy under the prejudgment order, dismissal

of the appeal was not an appropriate remedy. That prejudgment

order warned that failure to make interim use and occupancy

payments "may result in the [d]efendants['] request for a jury

trial being struck." Nowhere did it state that the defendants'

failure to pay interim use and occupancy could result in waiver

of their right to appeal from any judgment. Cf. CMJ Mgt. Co. v.

Wilkerson, 91 Mass. App. Ct. 276, 284 (2017) (striking jury

demand for failure to comply with pretrial order "must be

approached with caution"). Moreover, once judgment entered, the

outstanding amounts the defendants owed for use and occupancy

were incorporated into the final judgment and the appeal bond

order. Conditioning the defendants' right to appeal from the

judgment on their compliance with the prejudgment order to pay

interim use and occupancy would render G. L. c. 239, § 5, a

nullity. Thus the plaintiff misplaces its reliance on cases

where appeals were dismissed because defendants failed to pay

use and occupancy ordered in a final judgment or appeal bond

order. See, e.g., McNeff, 489 Mass. at 1026; Bank of N.Y.

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Mellon, 485 Mass. at 52-53; Cambridge St. Realty, LLC v.

Stewart, 481 Mass. 121, 137 n.19 (2018).

To the extent that the judge based the dismissal of the

appeal on the defendants' failure to pay use and occupancy under

the appeal bond order, as discussed above, that dismissal was

premature because the defendants had not yet had the opportunity

to seek G. L. c. 239, § 5 (f), review of the appeal bond order.

2. The plaintiff's appeal. Because we have concluded that

the defendants must be permitted to exercise their G. L. c. 239,

§ 5 (f), rights to petition a single justice of this court for

review of the Housing Court's December 31, 2021 appeal bond

order, we also conclude that the single justice properly stayed

execution of the defendants' eviction and vacated the Housing

Court judge's order requiring the defendants to pay use and

occupancy until the defendants have had the opportunity to

exercise those § 5 (f) rights.

The orders of the single justice dated March 8 and April 5,

2022, are affirmed. The order of the Housing Court dated

February 8, 2022, dismissing the appeal is vacated. We remand

the matter to the Housing Court for assembly of the record on

the defendants' petition to the single justice from the December

31, 2021 appeal bond order in accordance with G. L. c. 239,

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§ 5 (g), after which that petition shall be considered by a

single justice of this court.7

So ordered.

By the Court (Rubin,
Ditkoff & Grant, JJ.8),

Assistant Clerk

Entered: April 8, 2024.

7 We note, as the single justice did, that although the two
Housing Court matters in this case (Nos. 21H83SP00443TA and
20H83CV00167TA) were consolidated on March 23, 2021, various
documents and orders that were intended to be entered on the
dockets of both matters were inadvertently entered only on one
of the dockets, leading to apparent confusion by the Housing
Court and the parties.

8 The panelists are listed in order of seniority.

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