-: SJC-13617,
TJR Services, LLC
versus William L. Hutchinson, et al.
-: Good morning, Your Honors.
If it please the court, my name is Rosemary Traini.
And together with Jeffery Johnson,
we represent the appellant, TJR Services.
-: [Chief Justice Budd] Great.
-: We're here this morning seeking a reversal
of the Single Justice's order denying our client
use and occupancy in the Housing Court.
In this case, it's a little bit helpful, I think,
to go back a little bit to see how we ended up
where we were in the Housing Court at the time.
TJR Services had brought a case against the Hutchinsons
in the Land Court.
And after a trial and two summary judgment hearings
obtained a judgment in the Land Court
that it held title to the property
and that the Hutchinsons had no right
to title to the property.
We then took that judgment and-
-: Could you go back one step? -: Sure.
Justice Kafker: The original decision
in the Housing Court,
was that a dismissal without prejudice?
-: Yes, it was.
And just to clarify, that decision from the Housing Court
was raised by the Hutchinsons in the Land Court case
on a motion for summary judgment
based on res judicata principles.
It was denied in the Land Court,
and they reserved their rights on appeal,
which that piece of it is under appeal in the case
that's pending in the Appeals Court between the parties.
So we obtained the judgment in the Land Court.
We then filed a summary process action in the Housing Court,
fully intending that we were going to take
our Land Court judgment
and move for summary judgment in the Housing Court
with the only issue being whether or not notice was proper.
But other than that, title had been adjudicated.
The Hutchinsons filed a motion for stay,
staying the proceedings while the appeal was pending
of the Land Court decision.
We made a determination that that made sense
practically, economically, not to proceed
while the Land Court judgment was on appeal.
Our only requirement was we wanted use and occupancy
while the Housing Court matter was stayed.
The Hutchinsons objected to that.
We had a hearing before the Housing Court judge.
And the Housing Court judge likened it really
to no difference between this being an appeal
that he was staying at the request of the Hutchinsons.
And if there had been a judgment in a Housing Court case
and it was up on appeal and the proceedings were stayed
pending that appeal, an order for use and occupancy
could be entered.
And before we could get that far,
there was an appeal taken to the Single Justice.
We believe that the Single Justice's decision was incorrect
because not only did we have the summary judgment decision,
excuse me, the judgment from the Land Court
that we were relying on,
and that would've entitled us, we believe,
to use and occupancy pending while the stay was in effect
so that they could take their appeal.
-: Counsel, you say the Single Justice was wrong.
And I know that you just said that Judge Michaud
had a different viewpoint than the Single Justice
inasmuch as the Single Justice seemed to be focused
on the fact that you're in different courts
and the fact that you got your title determination
in the Land Court and you made a conscious decision
not to go and have it adjudicated in the Housing Court.
Is that a distinction without a difference,
a legal difference?
-: In my mind, it is.
We went to the court where you would go
if there was a title dispute.
We obtained a judgment from the Land Court.
That judgment's entitled to full faith and credit
in the Housing Court, even if it's on appeal.
And we took it to the place where you go to get possession.
And that's what we did.
So we knew that we couldn't get use and occupancy
during the pendency of the Land Court action,
and nor did we seek it.
We were merely getting the title issues resolved.
-: So under what legal theory?
Because I thought looking at the Single Justice's decision,
he was focused on there doesn't seem to be any authority
for the Housing Court to issue a use and occupancy order
without an underlying decision or judgment of their court.
What's your best authority for why the Housing Court
can do this in another department?
-: Well, the way that I read the cases out of this court,
King and Davis, and most recently Frechette,
is that the general policy of this court is is that
you can dispute title, but while you're doing that,
there has to be some balancing of the equities
between the record title owner of the property
and the foreclosed owner of the property
who's a tenant at sufferance once the foreclosure happens.
And the way that I view it is
even if the Single Justice thought
that the Housing Court judge
didn't have authority to do it,
albeit because he said that the decision
came from the Land court, not the Housing Court,
I believe he would've had that ability to do it
even if there was no judgment at all.
If we had gone in on a straight summary process case,
and for whatever reason there had been a request for a stay,
which in this case the defendants made the request,
the judge could have determined that to enter the stay
and that to order use and occupancy,
under certain circumstances,
at least my reading of both King and Davis
is that under certain circumstances,
a Housing Court judge can order use and occupancy
during the pendency of an eviction proceeding.
Judgment aside, I think all the judgment does
is put us in a position where
we were entitled to the relief we were seeking
because the only response that the defendants would've had
would've been to respond to a summary judgment
in the Housing Court.
So there really wasn't any factual dispute
that would've arisen in that regard.
So he could have done it on that basis,
which Judge Michaud did,
but he also, I think, could have done it strictly on-
-: Was that just on the general equitable power bases?
Or was there some specific statutory language
that Judge Michaud could have done it?
-: He did it on his general equitable powers.
And in a situation where,
and I think he even went even further than that
and said that what he would've done
had he been given the opportunity was
he would've escrowed the lion's share
of the use and occupancy
and ordered only that the real estate taxes
and the insurance be paid in order to preserve the property.
And that that way, neither party
would really be negatively affected by it
because paying the taxes and insuring the property
would benefit both of them.
So I think that his decision
to allow a use and occupancy payment
while the stay was pending, again, made sense.
-: As a practical matter,
what happens if the Land Court decision gets flipped
in terms of, let's say, there's ongoing payments
of use and occupancy per the Housing Court's order,
and then the Appeals Court decides the Land Court was wrong?
-: I think that that's what Judge Michaud was doing
when he said that what he intended to do
was only order that the tax, the real estate taxes,
and the insurance be paid,
and that the rest of the money be held in escrow.
-: But I understand that that's sort of a way
to ensure then the money goes back to the rightful owner.
Counsel Traini: That's correct.
That's what his position was, is it would go back to,
if TJR was successful, the money would go to them.
If the Hutchinsons were successful, the money would go back.
And either way, the taxes and the insurance were being paid.
So that benefited either party.
-: So I have a related question.
What's been going on since the Single Justice's order
that's on appeal now?
Have the use and occupancy payments continued to be made?
-: There are none.
We never got to that.
We never got that far.
What happened was
before Judge Michaud even entered an order-
-: [Justice Wolohojian] Oh, so they never started at all.
Okay.
-: Before he even entered a money order,
the appeals went up and-
-: So there's nothing in escrow.
What's been going on with the taxes?
-: Our client's been paying the taxes
as the record title holder of the property.
And the Appeals Court case is still pending.
And again, we have a situation here where we have-
-: Can I ask one sort of follow-up?
'Cause he's gonna get up and argue that res judicata
should apply to the Housing Court decision.
Did the judge explain
why it was a dismissal without prejudice,
even though the first time around?
In the Housing Court, he dismisses it without prejudice.
Right? -: A different judge, yes.
The Housing Court judge at the time
dismissed the case without prejudice.
-: Does he or she explain why it's without prejudice
even though they find that it's a different title holder?
-: Well, the judge in the Housing Court didn't.
The dismissal was simply,
"I'm dismissing without prejudice
"the claims and the counterclaims."
And that was kind of it. -: Okay.
-: The Land Court judge, in his determination,
he took the position that it wasn't res judicata
was because he took the position that
the Housing Court judge had raised the issue sua sponte
and that neither party had argued the issue,
the title issue.
The judge brought it up on her own
and then dismissed the case.
And again, I think the issue-
-: And then the Land Court judge finds that
the Housing Court judge has done that incorrectly,
I take it, right?
-: No, the Land Court judge found...
Well, yes, the Land Court judge found that the issue
of the name of the party was de minimis
in his decision in the Land Court case.
But he found that the dismissal was-
-: Cut down just for us. -: Sure.
-: There's a one word difference between...
The word trustee is in there.
I can't remember what the difference-
-: What happens is, and I can't...
You'd think I would know the name right now.
Justice Kafker: He's got 20 pages on that.
If you could simplify that, it would help.
-: Right; so what it is is it's one of the,
like a pass through trust.
And in some of the documents that were on record,
it says the ABC Pass Through Securities Trust.
And on some of the documents, it says the ABC Pass Through
and doesn't have the word trust.
The word trust was left off of some of the documents
that were recorded in connection
with the foreclosure process.
And the Land Court judge determined
that the omission of the word trust was de minimis
in the general scheme of the foreclosure.
But again, I think that our position would be
that this argument that my brother's making
with respect to the res judicata
of the first Housing Court action
in this case is not relevant
because he's raised that in the appeal in the Land Court
because that's where he raised the issue.
He shouldn't be entitled to collaterally attack
the judgment of the Land Court now in the Housing Court.
That's what his appeal is for.
And that's why we are arguing that on appeal
when that appeal is heard before the Appeals Court.
And he'll have the opportunity to argue that then.
So I don't think that that's relevant to the discussion
of whether or not we should have been entitled
to seek use and occupancy after the Land Court judgment.
-: So one of the things that we haven't talked about
is the issue, preclusion issue, about that your client
has right title and interest to the property
that was made in the Land Court.
Your brother's gonna argue
that O'Brien doesn't control this.
And is the issue that,
is O'Brien not controlling because it was in arbitration?
-: It's not my reading of O'Brien.
My reading of O'Brien is that,
this court held that a decision of a trial court is binding
even if it's on appeal.
Didn't say only in arbitration cases.
It said it was adopting the federal rule
and the majority rule in most of the states,
that cases that are on appeal
are still considered final judgments
even if they're on appeal.
I understand that that's the argument that my brother makes.
That's the argument that the amicus brief made
that was filed last night.
But it's our position that both O'Brien
and Campos versus Van Houtum that came after O'Brien,
that they both came to the same determination
that it's res judicata.
It's not subject to collateral attack
even if it's on appeal.
Lastly, I would say that
this particular set of circumstances as well,
and following along with the decisions in King and Davis,
is here we have a situation where we have defendants
who have vociferously taken the position
that they are the owners of this property.
They have by their own admission in the Land Court,
did not make a mortgage payment from 2010
until the foreclosure in 2016.
And the bank foreclosed in 2016.
The property was sold in 2017, and then again in 2019.
They have not made any payments to real estate taxes
during any of that period of time.
And at least as far as when the Housing Court action
that we filed was made,
they acknowledged that they did not have insurance
on the property.
And so I think that from a balancing
of the equities perspective,
they should have every right to challenge
whatever they wanna challenge
with respect to whether this foreclosure was proper.
But it's our position that they should pay
while that process is going on
because our rights are being affected
by their exercising their rights.
-: Okay, thank you. -: Thank you.
(one of the Justices coughs)
-: [Chief Justice Budd] Attorney Vawter.
-: Good afternoon, Your Honor.
My name's Tom Vawter, and I represent the defendants
in this matter.
I guess I think it's important to address the question
that Justice Georges raised as to whether
it's a final judgment or not in the Land Court.
And I would suggest that it's not.
And where I come from is I would look
at the reporter's notes to Rule 54,
which says, "Rule 54A crystallizes the meaning
"of a judgment and final judgment,
"and emphasizes the difference between these terms
"and the concepts of judgment
"under preexisting Massachusetts practice.
"Heretofore, judgment was meant the last step,
"a step in the case, which cuts off all appellate review.
"Under the rules, judgment is merely
"the final adjudicating act of the trial court
"and starts the timetable for appellate review.
"Briefly stated, a case which went to judgment
"under the old practice was, except in rare circumstances,
"forensically dead.
"Henceforth, a case in which judgment is entered
"is ready for appeal."
-: But could that trump what we said in O'Brien?
And I guess I go back to,
I know you dispute this,
but O'Brien says what it says.
And since O'Brien, there have been other cases
where that same principle has been reaffirmed.
And so I just don't understand why it is
that the summary judgment adjudication in the Land Court
isn't final for purposes of title.
-: So I would argue that before this court,
the court has ruled in Spiny versus Pre-Vet
or acknowledged this very language in Spiny versus Pre-Vet.
And I would suggest that there's another case,
Appeals Court case, Gonzalez versus Spates,
that Judge Kafker issued back in 2002,
554 Mass. Appeals Court 438.
It was a different set of facts,
but he, again, cites this reporter's note as applicable.
-: [Justice Wendlandt] On the issue of issue preclusion?
-: On the issue of whether the judgment is final or not-
-: [Justice Wendlandt] But not in the context
of issue preclusion.
-: And so I think one of the facts in O'Brien.
(overlapping conversation)
I think the facts are important in O'Brien.
And the reason the facts are important in O'Brien
is that is an arbitration case.
An arbitration case is where two parties contract
to not come to the court but to go to a different process.
-: And if I could just follow up
on that distinction you're making on O'Brien.
O'Brien cites a series of federal cases
and the majority view on the finality required
for issue preclusion.
Are all of those...
I haven't done that work; I'm assuming you did.
Are all of those federal cases
and the restatement of judgment second that it cites also,
are all of those arbitration cases?
-: It is my view... -: It's okay if you don't know.
I will look it up but.
-: I haven't read all of 'em.
But it's clearly, arbitration is a very particular set
of circumstances in which there's very limited opportunity
for review in this court system,
in the Superior Court system.
So there's only three or four reasons
once you agree to arbitration, not to do arbitration.
Or if there was fraud.
There's very limited reasons.
And so the arbitration is if you agree to that
and you agree to that process,
you may have a few opportunities to come to Superior Court.
And if you come to Superior Court,
and one of the notions under the arbitration rules
is that it's a way to get a quick resolution of disputes.
-: So your position would be that there is one rule
for issue preclusion as it regards arbitration cases
and a different rule for everybody else?
-: I think that there is a general rule that's a consistent
with the reporter's report on 54A.
I believe that that's the general rule.
I believe that this court did take up the O'Brien case
and did rule on the O'Brien case, but it is an exception.
It is a carve out about arbitration cases and to apply it-
-: Okay, so yes, you think arbitration cases are different
for purposes of issue preclusion.
-: Absolutely.
To make a general statement of that
on all other cases seems not appropriate.
And I think, given the confusion,
that I agree with Justice Georges.
There are other decisions subsequent to O'Brien
that sort of seems to public policy,
not against public policy.
And it seems to me that this court
would be helped in this particular case...
-: O'Brien cites two federal cases that are not...
O'Brien relies on two federal cases
that are not arbitration cases.
It applies in the arbitration context,
but the federal law is not arbitration law, right?
I mean, I may be misremembering those cases,
but I thought the U.S. Supreme Court case
and the First Circuit case are not arbitration decisions.
-: I will not dispute you because I do not know for a fact.
Okay.
What I'll say is, is that it's clear that this
should not be the rule for the general cases
that go to trial or go to judgment.
-: [Justice Wendlandt] Why not?
-: Because the right to have an appeal,
the right to have an appeal
is what has been basically guaranteed
or basically recommended by the courts over the years.
Now I understand that this reporter's note says
that there's a prior rule and now we have a new rule.
But it's been a long time the rule has been
if you have a judgment, you have a right to appeal that.
-: [Justice Wolohojian] He is appealing; they are appealing.
-: Until a rescript opinion is issued by the Appeals Court,
it does not end the case.
-: What happens to the obligation to pay on a judgment
when it's entered in the trial court?
-: I believe it gets stayed under...
Certainly in summary process cases,
it gets stayed if there's an appeal.
-: [Justice Wolohojian] But not in summary process cases.
-: Excuse me.
-: Under the rules of civil procedure,
not in summary process cases.
-: But certainly under summary process.
So I'm not gonna say,
I'm not going to suggest to the court
that there is one glove that fits all.
I'm not gonna say that.
What I'm gonna say is that arbitration cases
are a separate animal different from,
different from the general run of the mill
based on the nature of arbitration
and based on the nature of where it comes from,
and the rights of a party to come into the court.
-: If that's the carve out,
doesn't it put the trial courts in a strange position
where the Housing Court judge would have to say
that the Land Court judge was wrong as a matter of law.
So basically, you'd make the Housing Court judge
have to rule on the validity of a ruling from another judge.
-: I'm not sure that that's true.
I'm not sure that the Housing Court should get to that issue
other than the fact that it's not a final appeal.
It's not a final appeal.
It's up on appeal.
So it was a motion to dismiss along with a motion-
-: So you could have inconsistent rulings
by two different judges.
You'd have inconsistent rulings by two different judges
if it played out.
-: We're gonna have inconsistent,
we have inconsistent rulings.
We have the 2017 ruling in which
there were factual determinations made
by a Housing Court judge
that the entity that brought the case
was not the correct entity.
So we do have findings of fact on that.
So that's gonna be one piece.
And there's gonna now the Land Court that's going be,
"I'm not bound by that."
-: It was a dismissal without prejudice.
It was a dismissal without prejudice.
Are there fact findings?
Do we have fact findings on this?
Fact findings?
-: There is facts that the judge entered in her order
prior to the entry of the judgment.
I will agree that the judgment says without prejudice.
But that does not mean that it doesn't become final
when the parties fail to appeal.
Nobody appealed the Housing Court's decision.
-: Well, it's final, but it's not binding
because it's without prejudice.
-: I don't think that's true.
-: [Justice Wendlandt] Why?
-: Because the entity
that brought the first summary process case
can't come back in.
If somebody else could... -: Why?
-: Because they're not the right named entity.
It was determined that they're not the right named entity.
-: But that's not before us, right?
I mean, that's in front of the Appeals Court
in that vertical.
-: Correct, and so it's only before you to the degree
that there is a prior judgment in the Housing Court
for which they,
rather than going back into the Housing Court,
as one of you suggested, "Why not go back in,"
they went to Land Court.
They didn't go back in.
They didn't go...
-: What does that matter?
They had a right to go to the Land Court?
-: They absolutely had a right to go.
-: Okay, so what does it matter
that they chose to exercise that right?
-: 'Cause there's a judgment
out of the Housing Court that says...
There's a judgment outta the Housing Court
that's based on facts
that are set out that say that the plaintiff,
the party that brought the case, is not the proper party.
The Housing Court did not have,
there was no standing and there's lack of jurisdiction.
So for them to come in with a new party...
-: The first judgment was a dismissal
out of the Housing Court,
was a dismissal without prejudice, correct?
That's what it was.
It was a dismissal without prejudice.
-: Correct, based on findings of fact.
Justice Kafker: Based on, it looks like a technicality.
-: That may be...
-: That may be why it's without prejudice.
-: Well, I'm not sure that that's true.
So the very same set of facts-
-: So all of these issues, you can and presumably will raise
at the appellate level of the Land Court, right?
The question before us is whether
while you're doing that, the Housing Court is authorized
to order your client to pay use and occupancy.
-: And I would say not.
And the reason they're not is that there is no case law.
Well, so there is no case law that holds
that a adverse tenant such as a foreclosed homeowner...
-: Really?
Don't King, Frechette, and Davis all narrow this
to focus on the fact that somebody's living
without paying use and occupancy
and someone else is not having any access to the house.
Somebody's gotta pay for the insurance
and pay for the taxes.
So we do a balancing there.
It just seems like there's very little left
that hasn't been done in those three cases.
But you tell me why.
-: So King and Frechette were after judgment on appeal.
They were not during the pendency of the case.
The only case is the Davis case.
And the Davis case was a holdover tenancy,
not an adverse tenancy.
It was somebody who had a relationship,
a release kind of relationship with the landlord
who then did not leave.
But in this case where title in...
-: Yes, Mr. King, from what I remember about Mr. King,
and I haven't reread it recently.
But Mr. King gets foreclosed upon.
Isn't he still challenging the foreclosure
when we conclude that use and occupancy is okay there?
I can't remember.
-: So as I understand the facts of King
is that the issue of use and occupancy
was raised after judgment.
I would say that the,
you know, I think it's the Save-Mor case versus...
All the cases talk about in an adverse tenancy,
in a post foreclosure homeowner case
where title is being disputed,
use and occupancy is not an appropriate remedy during the-
-: We've never said that.
Cite something that says that.
-: Of course, it's been said.
It's been said for 174 years from Merriam versus,
Merriam versus...
I have it right here.
Justice Kafker: Use and occupancy statutes...
-: Howard versus Merriam from 59 Mass. 563.
-: 59 Mass.,
when did the use and occupancy statute go into effect?
-: Use and occupancy statute?
There's a summary process statute.
Justice Kafker: That talks about use and occupancy.
-: Sir, in the summary process, the use and occupancy...
I'm not sure which year. -: 59 Mass is 18 something.
-: What's that, I'm not sure. -: 59 Mass. must be 1800s.
-: Yeah, it's 1850.
In Merrill versus Bullock case, they're both good law
to the very present.
They're still good law.
-: How do you distinguish Davis?
-: Davis is a holdover tenancy.
-: It's a tenant at sufferance.
That's what the court says.
The court says, "We conclude that following a motion
"by a landlord, a court has statutory
"and equitable authority under...
"And cites to order a tenant at sufferance
"to make interim use and occupancy payments
"during the pendency of an eviction action."
How is it that that does not control this situation?
-: Because I would argue that tenants at sufferance
is now begun to be misused.
Tenants at sufferance only applies to hold over tenancies.
Do not apply-
-: [Justice Wolohojian] What's your authority for that,
legal authority?
-: I'd go to these old cases again.
I'd go to the old cases to talk about it.
The Merrill versus Bullock in 1870.
-: A tenant at sufferance is not a former homeowner,
a post foreclosure homeowner?
-: Correct.
And I understand, there are recent decisions.
I'm not going to suggest that there aren't recent decisions
that use that term.
I think it's probably in King.
It's probably in Frechette.
It's probably in some recent cases.
But if you were to look at the law that's still good today,
it is a different relationship.
Where title is being disputed,
the question that happens in summary process
is whether the plaintiff is rightfully there
and whether he has rightful possession.
That's the issue, not use and occupancy.
-: You distinguish Davis by saying that
these, I guess it's plaintiffs in this case,
are not tenants at sufferance.
-: My clients, the Hutchinsons,
are currently not tenants at sufferance, correct.
And I understand,
those terms are out there
but I don't think that they're accurately being used.
-: [Chief Justice Budd] Okay, any other questions?
(Attorney Vawter laughs)
-: So much. -: Thank you.