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SJC-13617,
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TJR Services, LLC
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versus William L. Hutchinson, et al.
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Good morning, Your Honors.
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If it please the court, my name is Rosemary Traini.
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And together with Jeffery Johnson,
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we represent the appellant, TJR Services.
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[Chief Justice Budd] Great.
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We're here this morning seeking a reversal
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of the Single Justice's order denying our client
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use and occupancy in the Housing Court.
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In this case, it's a little bit helpful, I think,
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to go back a little bit to see how we ended up
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where we were in the Housing Court at the time.
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TJR Services had brought a case against the Hutchinsons
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in the Land Court.
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And after a trial and two summary judgment hearings
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obtained a judgment in the Land Court
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that it held title to the property
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and that the Hutchinsons had no right
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to title to the property.
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We then took that judgment and-
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Could you go back one step?
Sure.
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The original decision
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in the Housing Court,
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was that a dismissal without prejudice?
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Yes, it was.
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And just to clarify, that decision from the Housing Court
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was raised by the Hutchinsons in the Land Court case
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on a motion for summary judgment
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based on res judicata principles.
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It was denied in the Land Court,
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and they reserved their rights on appeal,
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which that piece of it is under appeal in the case
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that's pending in the Appeals Court between the parties.
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So we obtained the judgment in the Land Court.
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We then filed a summary process action in the Housing Court,
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fully intending that we were going to take
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our Land Court judgment
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and move for summary judgment in the Housing Court
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with the only issue being whether or not notice was proper.
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But other than that, title had been adjudicated.
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The Hutchinsons filed a motion for stay,
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staying the proceedings while the appeal was pending
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of the Land Court decision.
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We made a determination that that made sense
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practically, economically, not to proceed
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while the Land Court judgment was on appeal.
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Our only requirement was we wanted use and occupancy
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while the Housing Court matter was stayed.
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The Hutchinsons objected to that.
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We had a hearing before the Housing Court judge.
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And the Housing Court judge likened it really
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to no difference between this being an appeal
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that he was staying at the request of the Hutchinsons.
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And if there had been a judgment in a Housing Court case
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and it was up on appeal and the proceedings were stayed
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pending that appeal, an order for use and occupancy
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could be entered.
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And before we could get that far,
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there was an appeal taken to the Single Justice.
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We believe that the Single Justice's decision was incorrect
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because not only did we have the summary judgment decision,
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excuse me, the judgment from the Land Court
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that we were relying on,
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and that would've entitled us, we believe,
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to use and occupancy pending while the stay was in effect
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so that they could take their appeal.
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Counsel, you say the Single Justice was wrong.
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And I know that you just said that Judge Michaud
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had a different viewpoint than the Single Justice
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inasmuch as the Single Justice seemed to be focused
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on the fact that you're in different courts
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and the fact that you got your title determination
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in the Land Court and you made a conscious decision
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not to go and have it adjudicated in the Housing Court.
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Is that a distinction without a difference,
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a legal difference?
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In my mind, it is.
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We went to the court where you would go
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if there was a title dispute.
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We obtained a judgment from the Land Court.
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That judgment's entitled to full faith and credit
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in the Housing Court, even if it's on appeal.
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And we took it to the place where you go to get possession.
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And that's what we did.
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So we knew that we couldn't get use and occupancy
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during the pendency of the Land Court action,
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and nor did we seek it.
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We were merely getting the title issues resolved.
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So under what legal theory?
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Because I thought looking at the Single Justice's decision,
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he was focused on there doesn't seem to be any authority
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for the Housing Court to issue a use and occupancy order
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without an underlying decision or judgment of their court.
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What's your best authority for why the Housing Court
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can do this in another department?
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Well, the way that I read the cases out of this court,
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King and Davis, and most recently Frechette,
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is that the general policy of this court is is that
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you can dispute title, but while you're doing that,
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there has to be some balancing of the equities
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between the record title owner of the property
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and the foreclosed owner of the property
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who's a tenant at sufferance once the foreclosure happens.
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And the way that I view it is
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even if the Single Justice thought
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that the Housing Court judge
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didn't have authority to do it,
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albeit because he said that the decision
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came from the Land court, not the Housing Court,
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I believe he would've had that ability to do it
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even if there was no judgment at all.
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If we had gone in on a straight summary process case,
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and for whatever reason there had been a request for a stay,
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which in this case the defendants made the request,
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the judge could have determined that to enter the stay
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and that to order use and occupancy,
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under certain circumstances,
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at least my reading of both King and Davis
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is that under certain circumstances,
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a Housing Court judge can order use and occupancy
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during the pendency of an eviction proceeding.
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Judgment aside, I think all the judgment does
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is put us in a position where
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we were entitled to the relief we were seeking
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because the only response that the defendants would've had
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would've been to respond to a summary judgment
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in the Housing Court.
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So there really wasn't any factual dispute
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that would've arisen in that regard.
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So he could have done it on that basis,
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which Judge Michaud did,
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but he also, I think, could have done it strictly on-
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Was that just on the general equitable power bases?
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Or was there some specific statutory language
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that Judge Michaud could have done it?
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He did it on his general equitable powers.
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And in a situation where,
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and I think he even went even further than that
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and said that what he would've done
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had he been given the opportunity was
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he would've escrowed the lion's share
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of the use and occupancy
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and ordered only that the real estate taxes
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and the insurance be paid in order to preserve the property.
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And that that way, neither party
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would really be negatively affected by it
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because paying the taxes and insuring the property
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would benefit both of them.
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So I think that his decision
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to allow a use and occupancy payment
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while the stay was pending, again, made sense.
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As a practical matter,
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what happens if the Land Court decision gets flipped
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in terms of, let's say, there's ongoing payments
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of use and occupancy per the Housing Court's order,
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and then the Appeals Court decides the Land Court was wrong?
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I think that that's what Judge Michaud was doing
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when he said that what he intended to do
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was only order that the tax, the real estate taxes,
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and the insurance be paid,
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and that the rest of the money be held in escrow.
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But I understand that that's sort of a way
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to ensure then the money goes back to the rightful owner.
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That's correct.
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That's what his position was, is it would go back to,
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if TJR was successful, the money would go to them.
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If the Hutchinsons were successful, the money would go back.
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And either way, the taxes and the insurance were being paid.
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So that benefited either party.
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So I have a related question.
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What's been going on since the Single Justice's order
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that's on appeal now?
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Have the use and occupancy payments continued to be made?
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There are none.
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We never got to that.
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We never got that far.
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What happened was
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before Judge Michaud even entered an order-
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[Justice Wolohojian] Oh, so they never started at all.
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Okay.
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Before he even entered a money order,
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the appeals went up and-
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So there's nothing in escrow.
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What's been going on with the taxes?
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Our client's been paying the taxes
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as the record title holder of the property.
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And the Appeals Court case is still pending.
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And again, we have a situation here where we have-
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Can I ask one sort of follow-up?
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'Cause he's gonna get up and argue that res judicata
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should apply to the Housing Court decision.
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Did the judge explain
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why it was a dismissal without prejudice,
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even though the first time around?
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In the Housing Court, he dismisses it without prejudice.
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Right?
A different judge, yes.
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The Housing Court judge at the time
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dismissed the case without prejudice.
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Does he or she explain why it's without prejudice
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even though they find that it's a different title holder?
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Well, the judge in the Housing Court didn't.
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The dismissal was simply,
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"I'm dismissing without prejudice
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"the claims and the counterclaims."
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And that was kind of it.
Okay.
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The Land Court judge, in his determination,
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he took the position that it wasn't res judicata
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was because he took the position that
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the Housing Court judge had raised the issue sua sponte
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and that neither party had argued the issue,
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the title issue.
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The judge brought it up on her own
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and then dismissed the case.
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And again, I think the issue-
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And then the Land Court judge finds that
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the Housing Court judge has done that incorrectly,
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I take it, right?
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No, the Land Court judge found...
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Well, yes, the Land Court judge found that the issue
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of the name of the party was de minimis
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in his decision in the Land Court case.
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But he found that the dismissal was-
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Cut down just for us.
Sure.
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There's a one word difference between...
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The word trustee is in there.
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I can't remember what the difference-
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What happens is, and I can't...
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You'd think I would know the name right now.
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He's got 20 pages on that.
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If you could simplify that, it would help.
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Right; so what it is is it's one of the,
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like a pass through trust.
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And in some of the documents that were on record,
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it says the ABC Pass Through Securities Trust.
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And on some of the documents, it says the ABC Pass Through
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and doesn't have the word trust.
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The word trust was left off of some of the documents
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that were recorded in connection
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with the foreclosure process.
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And the Land Court judge determined
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that the omission of the word trust was de minimis
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in the general scheme of the foreclosure.
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But again, I think that our position would be
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that this argument that my brother's making
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with respect to the res judicata
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of the first Housing Court action
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in this case is not relevant
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because he's raised that in the appeal in the Land Court
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because that's where he raised the issue.
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He shouldn't be entitled to collaterally attack
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the judgment of the Land Court now in the Housing Court.
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That's what his appeal is for.
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And that's why we are arguing that on appeal
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when that appeal is heard before the Appeals Court.
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And he'll have the opportunity to argue that then.
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So I don't think that that's relevant to the discussion
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of whether or not we should have been entitled
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to seek use and occupancy after the Land Court judgment.
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So one of the things that we haven't talked about
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is the issue, preclusion issue, about that your client
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has right title and interest to the property
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that was made in the Land Court.
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00:12:48.720 --> 00:12:50.010
Your brother's gonna argue
266
00:12:50.010 --> 00:12:52.380
that O'Brien doesn't control this.
267
00:12:52.380 --> 00:12:55.860
And is the issue that,
268
00:12:55.860 --> 00:12:59.673
is O'Brien not controlling because it was in arbitration?
269
00:13:01.650 --> 00:13:03.030
It's not my reading of O'Brien.
270
00:13:03.030 --> 00:13:04.890
My reading of O'Brien is that,
271
00:13:04.890 --> 00:13:09.777
this court held that a decision of a trial court is binding
272
00:13:11.880 --> 00:13:13.050
even if it's on appeal.
273
00:13:13.050 --> 00:13:15.480
Didn't say only in arbitration cases.
274
00:13:15.480 --> 00:13:17.700
It said it was adopting the federal rule
275
00:13:17.700 --> 00:13:20.370
and the majority rule in most of the states,
276
00:13:20.370 --> 00:13:22.770
that cases that are on appeal
277
00:13:22.770 --> 00:13:25.140
are still considered final judgments
278
00:13:25.140 --> 00:13:27.090
even if they're on appeal.
279
00:13:27.090 --> 00:13:29.430
I understand that that's the argument that my brother makes.
280
00:13:29.430 --> 00:13:31.110
That's the argument that the amicus brief made
281
00:13:31.110 --> 00:13:33.270
that was filed last night.
282
00:13:33.270 --> 00:13:37.050
But it's our position that both O'Brien
283
00:13:37.050 --> 00:13:40.440
and Campos versus Van Houtum that came after O'Brien,
284
00:13:40.440 --> 00:13:43.380
that they both came to the same determination
285
00:13:43.380 --> 00:13:45.630
that it's res judicata.
286
00:13:45.630 --> 00:13:48.000
It's not subject to collateral attack
287
00:13:48.000 --> 00:13:49.150
even if it's on appeal.
288
00:13:51.030 --> 00:13:52.530
Lastly, I would say that
289
00:13:52.530 --> 00:13:54.840
this particular set of circumstances as well,
290
00:13:54.840 --> 00:13:59.840
and following along with the decisions in King and Davis,
291
00:14:00.630 --> 00:14:04.230
is here we have a situation where we have defendants
292
00:14:04.230 --> 00:14:06.930
who have vociferously taken the position
293
00:14:06.930 --> 00:14:09.030
that they are the owners of this property.
294
00:14:10.230 --> 00:14:13.470
They have by their own admission in the Land Court,
295
00:14:13.470 --> 00:14:16.350
did not make a mortgage payment from 2010
296
00:14:16.350 --> 00:14:19.230
until the foreclosure in 2016.
297
00:14:19.230 --> 00:14:22.950
And the bank foreclosed in 2016.
298
00:14:22.950 --> 00:14:27.240
The property was sold in 2017, and then again in 2019.
299
00:14:27.240 --> 00:14:30.180
They have not made any payments to real estate taxes
300
00:14:30.180 --> 00:14:32.640
during any of that period of time.
301
00:14:32.640 --> 00:14:37.350
And at least as far as when the Housing Court action
302
00:14:37.350 --> 00:14:38.280
that we filed was made,
303
00:14:38.280 --> 00:14:40.140
they acknowledged that they did not have insurance
304
00:14:40.140 --> 00:14:41.250
on the property.
305
00:14:41.250 --> 00:14:43.440
And so I think that from a balancing
306
00:14:43.440 --> 00:14:45.150
of the equities perspective,
307
00:14:45.150 --> 00:14:47.670
they should have every right to challenge
308
00:14:47.670 --> 00:14:48.930
whatever they wanna challenge
309
00:14:48.930 --> 00:14:51.570
with respect to whether this foreclosure was proper.
310
00:14:51.570 --> 00:14:54.150
But it's our position that they should pay
311
00:14:54.150 --> 00:14:56.400
while that process is going on
312
00:14:56.400 --> 00:14:58.860
because our rights are being affected
313
00:14:58.860 --> 00:15:01.353
by their exercising their rights.
314
00:15:02.660 --> 00:15:04.722
Okay, thank you.
Thank you.
315
00:15:04.722 --> 00:15:08.749
(one of the Justices coughs)
316
00:15:08.749 --> 00:15:10.710
[Chief Justice Budd] Attorney Vawter.
317
00:15:10.710 --> 00:15:11.640
Good afternoon, Your Honor.
318
00:15:11.640 --> 00:15:13.920
My name's Tom Vawter, and I represent the defendants
319
00:15:13.920 --> 00:15:14.763
in this matter.
320
00:15:18.330 --> 00:15:23.330
I guess I think it's important to address the question
321
00:15:23.700 --> 00:15:25.770
that Justice Georges raised as to whether
322
00:15:25.770 --> 00:15:27.960
it's a final judgment or not in the Land Court.
323
00:15:27.960 --> 00:15:29.580
And I would suggest that it's not.
324
00:15:29.580 --> 00:15:33.510
And where I come from is I would look
325
00:15:33.510 --> 00:15:38.510
at the reporter's notes to Rule 54,
326
00:15:40.740 --> 00:15:43.807
which says, "Rule 54A crystallizes the meaning
327
00:15:43.807 --> 00:15:45.997
"of a judgment and final judgment,
328
00:15:45.997 --> 00:15:48.817
"and emphasizes the difference between these terms
329
00:15:48.817 --> 00:15:50.317
"and the concepts of judgment
330
00:15:50.317 --> 00:15:53.047
"under preexisting Massachusetts practice.
331
00:15:53.047 --> 00:15:56.047
"Heretofore, judgment was meant the last step,
332
00:15:56.047 --> 00:16:00.067
"a step in the case, which cuts off all appellate review.
333
00:16:00.067 --> 00:16:01.927
"Under the rules, judgment is merely
334
00:16:01.927 --> 00:16:05.317
"the final adjudicating act of the trial court
335
00:16:05.317 --> 00:16:08.887
"and starts the timetable for appellate review.
336
00:16:08.887 --> 00:16:10.987
"Briefly stated, a case which went to judgment
337
00:16:10.987 --> 00:16:13.747
"under the old practice was, except in rare circumstances,
338
00:16:13.747 --> 00:16:14.887
"forensically dead.
339
00:16:14.887 --> 00:16:17.047
"Henceforth, a case in which judgment is entered
340
00:16:17.047 --> 00:16:18.690
"is ready for appeal."
341
00:16:18.690 --> 00:16:22.200
But could that trump what we said in O'Brien?
342
00:16:22.200 --> 00:16:23.760
And I guess I go back to,
343
00:16:23.760 --> 00:16:25.590
I know you dispute this,
344
00:16:25.590 --> 00:16:27.540
but O'Brien says what it says.
345
00:16:27.540 --> 00:16:30.660
And since O'Brien, there have been other cases
346
00:16:30.660 --> 00:16:34.620
where that same principle has been reaffirmed.
347
00:16:34.620 --> 00:16:37.800
And so I just don't understand why it is
348
00:16:37.800 --> 00:16:41.760
that the summary judgment adjudication in the Land Court
349
00:16:41.760 --> 00:16:45.240
isn't final for purposes of title.
350
00:16:45.240 --> 00:16:47.970
So I would argue that before this court,
351
00:16:47.970 --> 00:16:51.045
the court has ruled in Spiny versus Pre-Vet
352
00:16:51.045 --> 00:16:56.045
or acknowledged this very language in Spiny versus Pre-Vet.
353
00:16:57.300 --> 00:16:59.973
And I would suggest that there's another case,
354
00:17:00.960 --> 00:17:03.990
Appeals Court case, Gonzalez versus Spates,
355
00:17:03.990 --> 00:17:08.990
that Judge Kafker issued back in 2002,
356
00:17:09.480 --> 00:17:12.210
554 Mass. Appeals Court 438.
357
00:17:12.210 --> 00:17:13.680
It was a different set of facts,
358
00:17:13.680 --> 00:17:18.680
but he, again, cites this reporter's note as applicable.
359
00:17:19.357 --> 00:17:21.480
[Justice Wendlandt] On the issue of issue preclusion?
360
00:17:21.480 --> 00:17:25.389
On the issue of whether the judgment is final or not-
361
00:17:25.389 --> 00:17:26.730
[Justice Wendlandt] But not in the context
362
00:17:26.730 --> 00:17:28.080
of issue preclusion.
363
00:17:28.080 --> 00:17:31.628
And so I think one of the facts in O'Brien.
364
00:17:31.628 --> 00:17:35.580
(overlapping conversation)
365
00:17:35.580 --> 00:17:38.220
I think the facts are important in O'Brien.
366
00:17:38.220 --> 00:17:40.230
And the reason the facts are important in O'Brien
367
00:17:40.230 --> 00:17:42.380
is that is an arbitration case.
368
00:17:42.380 --> 00:17:46.170
An arbitration case is where two parties contract
369
00:17:46.170 --> 00:17:49.890
to not come to the court but to go to a different process.
370
00:17:49.890 --> 00:17:51.360
And if I could just follow up
371
00:17:51.360 --> 00:17:53.730
on that distinction you're making on O'Brien.
372
00:17:53.730 --> 00:17:57.750
O'Brien cites a series of federal cases
373
00:17:57.750 --> 00:18:02.580
and the majority view on the finality required
374
00:18:02.580 --> 00:18:04.650
for issue preclusion.
375
00:18:04.650 --> 00:18:05.880
Are all of those...
376
00:18:05.880 --> 00:18:07.890
I haven't done that work; I'm assuming you did.
377
00:18:07.890 --> 00:18:10.020
Are all of those federal cases
378
00:18:10.020 --> 00:18:13.350
and the restatement of judgment second that it cites also,
379
00:18:13.350 --> 00:18:15.453
are all of those arbitration cases?
380
00:18:19.530 --> 00:18:21.145
It is my view...
It's okay if you don't know.
381
00:18:21.145 --> 00:18:22.020
I will look it up but.
382
00:18:22.020 --> 00:18:23.310
I haven't read all of 'em.
383
00:18:23.310 --> 00:18:26.970
But it's clearly, arbitration is a very particular set
384
00:18:26.970 --> 00:18:31.970
of circumstances in which there's very limited opportunity
385
00:18:32.220 --> 00:18:34.920
for review in this court system,
386
00:18:34.920 --> 00:18:36.540
in the Superior Court system.
387
00:18:36.540 --> 00:18:39.730
So there's only three or four reasons
388
00:18:41.340 --> 00:18:43.890
once you agree to arbitration, not to do arbitration.
389
00:18:43.890 --> 00:18:45.720
Or if there was fraud.
390
00:18:45.720 --> 00:18:47.790
There's very limited reasons.
391
00:18:47.790 --> 00:18:51.120
And so the arbitration is if you agree to that
392
00:18:51.120 --> 00:18:53.550
and you agree to that process,
393
00:18:53.550 --> 00:18:57.390
you may have a few opportunities to come to Superior Court.
394
00:18:57.390 --> 00:18:59.010
And if you come to Superior Court,
395
00:18:59.010 --> 00:19:02.130
and one of the notions under the arbitration rules
396
00:19:02.130 --> 00:19:06.930
is that it's a way to get a quick resolution of disputes.
397
00:19:06.930 --> 00:19:11.520
So your position would be that there is one rule
398
00:19:11.520 --> 00:19:16.520
for issue preclusion as it regards arbitration cases
399
00:19:17.310 --> 00:19:20.220
and a different rule for everybody else?
400
00:19:20.220 --> 00:19:23.160
I think that there is a general rule that's a consistent
401
00:19:23.160 --> 00:19:28.020
with the reporter's report on 54A.
402
00:19:28.020 --> 00:19:30.570
I believe that that's the general rule.
403
00:19:30.570 --> 00:19:34.230
I believe that this court did take up the O'Brien case
404
00:19:34.230 --> 00:19:37.590
and did rule on the O'Brien case, but it is an exception.
405
00:19:37.590 --> 00:19:40.530
It is a carve out about arbitration cases and to apply it-
406
00:19:40.530 --> 00:19:43.980
Okay, so yes, you think arbitration cases are different
407
00:19:43.980 --> 00:19:45.900
for purposes of issue preclusion.
408
00:19:45.900 --> 00:19:46.950
Absolutely.
409
00:19:46.950 --> 00:19:49.500
To make a general statement of that
410
00:19:49.500 --> 00:19:52.200
on all other cases seems not appropriate.
411
00:19:52.200 --> 00:19:54.330
And I think, given the confusion,
412
00:19:54.330 --> 00:19:56.190
that I agree with Justice Georges.
413
00:19:56.190 --> 00:19:58.800
There are other decisions subsequent to O'Brien
414
00:19:58.800 --> 00:20:00.720
that sort of seems to public policy,
415
00:20:00.720 --> 00:20:02.010
not against public policy.
416
00:20:02.010 --> 00:20:04.350
And it seems to me that this court
417
00:20:04.350 --> 00:20:06.210
would be helped in this particular case...
418
00:20:06.210 --> 00:20:09.060
O'Brien cites two federal cases that are not...
419
00:20:09.060 --> 00:20:11.700
O'Brien relies on two federal cases
420
00:20:11.700 --> 00:20:13.563
that are not arbitration cases.
421
00:20:15.960 --> 00:20:17.760
It applies in the arbitration context,
422
00:20:17.760 --> 00:20:20.963
but the federal law is not arbitration law, right?
423
00:20:20.963 --> 00:20:23.610
I mean, I may be misremembering those cases,
424
00:20:23.610 --> 00:20:25.710
but I thought the U.S. Supreme Court case
425
00:20:25.710 --> 00:20:28.380
and the First Circuit case are not arbitration decisions.
426
00:20:28.380 --> 00:20:32.220
I will not dispute you because I do not know for a fact.
427
00:20:32.220 --> 00:20:33.053
Okay.
428
00:20:33.053 --> 00:20:36.330
What I'll say is, is that it's clear that this
429
00:20:36.330 --> 00:20:41.330
should not be the rule for the general cases
430
00:20:41.700 --> 00:20:45.221
that go to trial or go to judgment.
431
00:20:45.221 --> 00:20:46.433
[Justice Wendlandt] Why not?
432
00:20:49.920 --> 00:20:53.670
Because the right to have an appeal,
433
00:20:53.670 --> 00:20:55.080
the right to have an appeal
434
00:20:55.080 --> 00:20:57.570
is what has been basically guaranteed
435
00:20:57.570 --> 00:21:01.860
or basically recommended by the courts over the years.
436
00:21:01.860 --> 00:21:06.110
Now I understand that this reporter's note says
437
00:21:08.370 --> 00:21:10.380
that there's a prior rule and now we have a new rule.
438
00:21:10.380 --> 00:21:13.500
But it's been a long time the rule has been
439
00:21:13.500 --> 00:21:16.633
if you have a judgment, you have a right to appeal that.
440
00:21:16.633 --> 00:21:18.046
[Justice Wolohojian] He is appealing; they are appealing.
441
00:21:18.046 --> 00:21:21.120
Until a rescript opinion is issued by the Appeals Court,
442
00:21:21.120 --> 00:21:22.293
it does not end the case.
443
00:21:22.293 --> 00:21:25.860
What happens to the obligation to pay on a judgment
444
00:21:25.860 --> 00:21:28.290
when it's entered in the trial court?
445
00:21:28.290 --> 00:21:30.740
I believe it gets stayed under...
446
00:21:32.220 --> 00:21:34.290
Certainly in summary process cases,
447
00:21:34.290 --> 00:21:36.082
it gets stayed if there's an appeal.
448
00:21:36.082 --> 00:21:38.250
[Justice Wolohojian] But not in summary process cases.
449
00:21:38.250 --> 00:21:39.900
Excuse me.
450
00:21:39.900 --> 00:21:42.000
Under the rules of civil procedure,
451
00:21:42.000 --> 00:21:43.863
not in summary process cases.
452
00:21:45.600 --> 00:21:47.500
But certainly under summary process.
453
00:21:48.900 --> 00:21:50.700
So I'm not gonna say,
454
00:21:50.700 --> 00:21:52.680
I'm not going to suggest to the court
455
00:21:52.680 --> 00:21:56.700
that there is one glove that fits all.
456
00:21:56.700 --> 00:21:58.080
I'm not gonna say that.
457
00:21:58.080 --> 00:22:00.930
What I'm gonna say is that arbitration cases
458
00:22:00.930 --> 00:22:05.280
are a separate animal different from,
459
00:22:05.280 --> 00:22:08.160
different from the general run of the mill
460
00:22:08.160 --> 00:22:10.260
based on the nature of arbitration
461
00:22:10.260 --> 00:22:12.960
and based on the nature of where it comes from,
462
00:22:12.960 --> 00:22:15.797
and the rights of a party to come into the court.
463
00:22:15.797 --> 00:22:17.940
If that's the carve out,
464
00:22:17.940 --> 00:22:21.330
doesn't it put the trial courts in a strange position
465
00:22:21.330 --> 00:22:26.330
where the Housing Court judge would have to say
466
00:22:26.790 --> 00:22:30.600
that the Land Court judge was wrong as a matter of law.
467
00:22:30.600 --> 00:22:33.270
So basically, you'd make the Housing Court judge
468
00:22:33.270 --> 00:22:38.270
have to rule on the validity of a ruling from another judge.
469
00:22:38.974 --> 00:22:40.770
I'm not sure that that's true.
470
00:22:40.770 --> 00:22:44.490
I'm not sure that the Housing Court should get to that issue
471
00:22:44.490 --> 00:22:46.650
other than the fact that it's not a final appeal.
472
00:22:46.650 --> 00:22:47.670
It's not a final appeal.
473
00:22:47.670 --> 00:22:48.903
It's up on appeal.
474
00:22:50.631 --> 00:22:53.490
So it was a motion to dismiss along with a motion-
475
00:22:53.490 --> 00:22:55.020
So you could have inconsistent rulings
476
00:22:55.020 --> 00:22:56.250
by two different judges.
477
00:22:56.250 --> 00:22:59.310
You'd have inconsistent rulings by two different judges
478
00:22:59.310 --> 00:23:00.600
if it played out.
479
00:23:00.600 --> 00:23:01.620
We're gonna have inconsistent,
480
00:23:01.620 --> 00:23:03.360
we have inconsistent rulings.
481
00:23:03.360 --> 00:23:06.180
We have the 2017 ruling in which
482
00:23:06.180 --> 00:23:08.490
there were factual determinations made
483
00:23:08.490 --> 00:23:10.170
by a Housing Court judge
484
00:23:10.170 --> 00:23:13.590
that the entity that brought the case
485
00:23:13.590 --> 00:23:15.540
was not the correct entity.
486
00:23:15.540 --> 00:23:18.360
So we do have findings of fact on that.
487
00:23:18.360 --> 00:23:19.920
So that's gonna be one piece.
488
00:23:19.920 --> 00:23:21.997
And there's gonna now the Land Court that's going be,
489
00:23:21.997 --> 00:23:24.660
"I'm not bound by that."
490
00:23:24.660 --> 00:23:27.390
It was a dismissal without prejudice.
491
00:23:27.390 --> 00:23:29.040
It was a dismissal without prejudice.
492
00:23:29.040 --> 00:23:30.610
Are there fact findings?
493
00:23:30.610 --> 00:23:32.973
Do we have fact findings on this?
494
00:23:34.230 --> 00:23:35.063
Fact findings?
495
00:23:35.063 --> 00:23:39.360
There is facts that the judge entered in her order
496
00:23:39.360 --> 00:23:41.400
prior to the entry of the judgment.
497
00:23:41.400 --> 00:23:45.150
I will agree that the judgment says without prejudice.
498
00:23:45.150 --> 00:23:48.210
But that does not mean that it doesn't become final
499
00:23:48.210 --> 00:23:51.330
when the parties fail to appeal.
500
00:23:51.330 --> 00:23:53.120
Nobody appealed the Housing Court's decision.
501
00:23:53.120 --> 00:23:56.010
Well, it's final, but it's not binding
502
00:23:56.010 --> 00:23:58.530
because it's without prejudice.
503
00:23:58.530 --> 00:24:01.687
I don't think that's true.
504
00:24:01.687 --> 00:24:02.520
[Justice Wendlandt] Why?
505
00:24:02.520 --> 00:24:05.370
Because the entity
506
00:24:05.370 --> 00:24:08.040
that brought the first summary process case
507
00:24:08.040 --> 00:24:09.720
can't come back in.
508
00:24:09.720 --> 00:24:11.250
If somebody else could...
Why?
509
00:24:11.250 --> 00:24:14.163
Because they're not the right named entity.
510
00:24:15.090 --> 00:24:17.490
It was determined that they're not the right named entity.
511
00:24:17.490 --> 00:24:19.290
But that's not before us, right?
512
00:24:19.290 --> 00:24:22.899
I mean, that's in front of the Appeals Court
513
00:24:22.899 --> 00:24:24.450
in that vertical.
514
00:24:24.450 --> 00:24:27.090
Correct, and so it's only before you to the degree
515
00:24:27.090 --> 00:24:31.080
that there is a prior judgment in the Housing Court
516
00:24:31.080 --> 00:24:31.950
for which they,
517
00:24:31.950 --> 00:24:34.350
rather than going back into the Housing Court,
518
00:24:34.350 --> 00:24:37.380
as one of you suggested, "Why not go back in,"
519
00:24:37.380 --> 00:24:38.673
they went to Land Court.
520
00:24:39.600 --> 00:24:40.680
They didn't go back in.
521
00:24:40.680 --> 00:24:41.700
They didn't go...
522
00:24:41.700 --> 00:24:42.720
What does that matter?
523
00:24:42.720 --> 00:24:45.300
They had a right to go to the Land Court?
524
00:24:45.300 --> 00:24:46.750
They absolutely had a right to go.
525
00:24:46.750 --> 00:24:49.050
Okay, so what does it matter
526
00:24:49.050 --> 00:24:51.540
that they chose to exercise that right?
527
00:24:51.540 --> 00:24:52.457
'Cause there's a judgment
528
00:24:52.457 --> 00:24:54.870
out of the Housing Court that says...
529
00:24:54.870 --> 00:24:56.490
There's a judgment outta the Housing Court
530
00:24:56.490 --> 00:24:58.710
that's based on facts
531
00:24:58.710 --> 00:25:03.330
that are set out that say that the plaintiff,
532
00:25:03.330 --> 00:25:06.810
the party that brought the case, is not the proper party.
533
00:25:06.810 --> 00:25:09.030
The Housing Court did not have,
534
00:25:09.030 --> 00:25:12.900
there was no standing and there's lack of jurisdiction.
535
00:25:12.900 --> 00:25:17.900
So for them to come in with a new party...
536
00:25:18.180 --> 00:25:20.580
The first judgment was a dismissal
537
00:25:20.580 --> 00:25:21.690
out of the Housing Court,
538
00:25:21.690 --> 00:25:24.273
was a dismissal without prejudice, correct?
539
00:25:25.260 --> 00:25:26.093
That's what it was.
540
00:25:26.093 --> 00:25:28.514
It was a dismissal without prejudice.
541
00:25:28.514 --> 00:25:30.690
Correct, based on findings of fact.
542
00:25:30.690 --> 00:25:33.590
Based on, it looks like a technicality.
543
00:25:34.830 --> 00:25:36.000
That may be...
544
00:25:37.618 --> 00:25:39.157
That may be why it's without prejudice.
545
00:25:39.157 --> 00:25:41.343
Well, I'm not sure that that's true.
546
00:25:43.260 --> 00:25:45.257
So the very same set of facts-
547
00:25:45.257 --> 00:25:49.710
So all of these issues, you can and presumably will raise
548
00:25:49.710 --> 00:25:52.320
at the appellate level of the Land Court, right?
549
00:25:52.320 --> 00:25:54.990
The question before us is whether
550
00:25:54.990 --> 00:25:59.970
while you're doing that, the Housing Court is authorized
551
00:25:59.970 --> 00:26:02.130
to order your client to pay use and occupancy.
552
00:26:02.130 --> 00:26:03.270
And I would say not.
553
00:26:03.270 --> 00:26:06.480
And the reason they're not is that there is no case law.
554
00:26:06.480 --> 00:26:11.070
Well, so there is no case law that holds
555
00:26:11.070 --> 00:26:16.070
that a adverse tenant such as a foreclosed homeowner...
556
00:26:21.270 --> 00:26:22.140
Really?
557
00:26:22.140 --> 00:26:27.140
Don't King, Frechette, and Davis all narrow this
558
00:26:27.510 --> 00:26:32.510
to focus on the fact that somebody's living
559
00:26:33.030 --> 00:26:35.010
without paying use and occupancy
560
00:26:35.010 --> 00:26:40.010
and someone else is not having any access to the house.
561
00:26:43.440 --> 00:26:45.810
Somebody's gotta pay for the insurance
562
00:26:45.810 --> 00:26:47.280
and pay for the taxes.
563
00:26:47.280 --> 00:26:50.850
So we do a balancing there.
564
00:26:50.850 --> 00:26:53.670
It just seems like there's very little left
565
00:26:53.670 --> 00:26:55.560
that hasn't been done in those three cases.
566
00:26:55.560 --> 00:26:56.640
But you tell me why.
567
00:26:56.640 --> 00:27:01.640
So King and Frechette were after judgment on appeal.
568
00:27:02.580 --> 00:27:05.100
They were not during the pendency of the case.
569
00:27:05.100 --> 00:27:07.860
The only case is the Davis case.
570
00:27:07.860 --> 00:27:11.160
And the Davis case was a holdover tenancy,
571
00:27:11.160 --> 00:27:13.884
not an adverse tenancy.
572
00:27:13.884 --> 00:27:17.310
It was somebody who had a relationship,
573
00:27:17.310 --> 00:27:21.240
a release kind of relationship with the landlord
574
00:27:21.240 --> 00:27:24.090
who then did not leave.
575
00:27:24.090 --> 00:27:26.220
But in this case where title in...
576
00:27:26.220 --> 00:27:29.790
Yes, Mr. King, from what I remember about Mr. King,
577
00:27:29.790 --> 00:27:31.830
and I haven't reread it recently.
578
00:27:31.830 --> 00:27:35.070
But Mr. King gets foreclosed upon.
579
00:27:35.070 --> 00:27:38.190
Isn't he still challenging the foreclosure
580
00:27:38.190 --> 00:27:41.430
when we conclude that use and occupancy is okay there?
581
00:27:41.430 --> 00:27:42.660
I can't remember.
582
00:27:42.660 --> 00:27:46.290
So as I understand the facts of King
583
00:27:46.290 --> 00:27:49.170
is that the issue of use and occupancy
584
00:27:49.170 --> 00:27:52.740
was raised after judgment.
585
00:27:52.740 --> 00:27:54.030
I would say that the,
586
00:27:54.030 --> 00:27:57.060
you know, I think it's the Save-Mor case versus...
587
00:27:57.060 --> 00:28:02.060
All the cases talk about in an adverse tenancy,
588
00:28:02.280 --> 00:28:06.030
in a post foreclosure homeowner case
589
00:28:06.030 --> 00:28:08.520
where title is being disputed,
590
00:28:08.520 --> 00:28:13.360
use and occupancy is not an appropriate remedy during the-
591
00:28:13.360 --> 00:28:15.900
We've never said that.
592
00:28:15.900 --> 00:28:17.640
Cite something that says that.
593
00:28:17.640 --> 00:28:18.750
Of course, it's been said.
594
00:28:18.750 --> 00:28:22.203
It's been said for 174 years from Merriam versus,
595
00:28:23.790 --> 00:28:25.320
Merriam versus...
596
00:28:25.320 --> 00:28:26.370
I have it right here.
597
00:28:27.960 --> 00:28:29.190
Use and occupancy statutes...
598
00:28:29.190 --> 00:28:34.190
Howard versus Merriam from 59 Mass. 563.
599
00:28:36.800 --> 00:28:37.633
59 Mass.,
600
00:28:37.633 --> 00:28:40.503
when did the use and occupancy statute go into effect?
601
00:28:43.410 --> 00:28:45.390
Use and occupancy statute?
602
00:28:45.390 --> 00:28:48.810
There's a summary process statute.
603
00:28:48.810 --> 00:28:50.840
That talks about use and occupancy.
604
00:28:50.840 --> 00:28:55.550
Sir, in the summary process, the use and occupancy...
605
00:28:57.743 --> 00:29:00.180
I'm not sure which year.
59 Mass is 18 something.
606
00:29:00.180 --> 00:29:03.460
What's that, I'm not sure.
59 Mass. must be 1800s.
607
00:29:03.460 --> 00:29:06.126
Yeah, it's 1850.
608
00:29:06.126 --> 00:29:09.960
In Merrill versus Bullock case, they're both good law
609
00:29:09.960 --> 00:29:11.730
to the very present.
610
00:29:11.730 --> 00:29:13.290
They're still good law.
611
00:29:13.290 --> 00:29:16.530
How do you distinguish Davis?
612
00:29:16.530 --> 00:29:20.310
Davis is a holdover tenancy.
613
00:29:20.310 --> 00:29:22.713
It's a tenant at sufferance.
614
00:29:24.210 --> 00:29:25.530
That's what the court says.
615
00:29:25.530 --> 00:29:27.817
The court says, "We conclude that following a motion
616
00:29:27.817 --> 00:29:29.857
"by a landlord, a court has statutory
617
00:29:29.857 --> 00:29:31.627
"and equitable authority under...
618
00:29:31.627 --> 00:29:34.027
"And cites to order a tenant at sufferance
619
00:29:34.027 --> 00:29:35.917
"to make interim use and occupancy payments
620
00:29:35.917 --> 00:29:38.700
"during the pendency of an eviction action."
621
00:29:38.700 --> 00:29:42.150
How is it that that does not control this situation?
622
00:29:42.150 --> 00:29:47.150
Because I would argue that tenants at sufferance
623
00:29:48.000 --> 00:29:51.270
is now begun to be misused.
624
00:29:51.270 --> 00:29:55.770
Tenants at sufferance only applies to hold over tenancies.
625
00:29:55.770 --> 00:29:57.341
Do not apply-
626
00:29:57.341 --> 00:29:58.590
[Justice Wolohojian] What's your authority for that,
627
00:29:58.590 --> 00:29:59.880
legal authority?
628
00:29:59.880 --> 00:30:01.800
I'd go to these old cases again.
629
00:30:01.800 --> 00:30:04.560
I'd go to the old cases to talk about it.
630
00:30:04.560 --> 00:30:06.483
The Merrill versus Bullock in 1870.
631
00:30:08.550 --> 00:30:12.897
A tenant at sufferance is not a former homeowner,
632
00:30:13.740 --> 00:30:15.540
a post foreclosure homeowner?
633
00:30:15.540 --> 00:30:17.010
Correct.
634
00:30:17.010 --> 00:30:19.170
And I understand, there are recent decisions.
635
00:30:19.170 --> 00:30:21.270
I'm not going to suggest that there aren't recent decisions
636
00:30:21.270 --> 00:30:23.400
that use that term.
637
00:30:23.400 --> 00:30:25.620
I think it's probably in King.
638
00:30:25.620 --> 00:30:27.030
It's probably in Frechette.
639
00:30:27.030 --> 00:30:28.770
It's probably in some recent cases.
640
00:30:28.770 --> 00:30:33.300
But if you were to look at the law that's still good today,
641
00:30:33.300 --> 00:30:35.430
it is a different relationship.
642
00:30:35.430 --> 00:30:37.290
Where title is being disputed,
643
00:30:37.290 --> 00:30:39.420
the question that happens in summary process
644
00:30:39.420 --> 00:30:43.920
is whether the plaintiff is rightfully there
645
00:30:43.920 --> 00:30:45.690
and whether he has rightful possession.
646
00:30:45.690 --> 00:30:48.390
That's the issue, not use and occupancy.
647
00:30:48.390 --> 00:30:50.830
You distinguish Davis by saying that
648
00:30:51.720 --> 00:30:56.720
these, I guess it's plaintiffs in this case,
649
00:30:56.850 --> 00:30:59.490
are not tenants at sufferance.
650
00:30:59.490 --> 00:31:01.050
My clients, the Hutchinsons,
651
00:31:01.050 --> 00:31:03.500
are currently not tenants at sufferance, correct.
652
00:31:05.340 --> 00:31:06.903
And I understand,
653
00:31:11.250 --> 00:31:12.810
those terms are out there
654
00:31:12.810 --> 00:31:15.543
but I don't think that they're accurately being used.
655
00:31:19.378 --> 00:31:21.441
[Chief Justice Budd] Okay, any other questions?
656
00:31:21.441 --> 00:31:22.920
(Attorney Vawter laughs)
657
00:31:22.920 --> 00:31:24.363
So much.
Thank you.