O'Brien v. Lynch

2013 Mass. App. Div. 71, 2013 WL 1729196, 2013 Mass. App. Div. LEXIS 12

This text of 2013 Mass. App. Div. 71 (O'Brien v. Lynch) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Brien v. Lynch, 2013 Mass. App. Div. 71, 2013 WL 1729196, 2013 Mass. App. Div. LEXIS 12 (Mass. Ct. App. 2013).

Opinion

Ostrach, J.

Plaintiff Darla O’Brien (“O’Brien”) has appealed the trial judge’s decision in this summary process case awarding her possession and $5,550.00 in damages. Unsatisfied with her success in the trial court, O’Brien contends that we should find that the evidence before the trial judge compelled an award of $23,200.00 in damages and enter judgment in that amount ourselves. We conclude that the evidence on damages before the trial judge was not as clear as O’Brien asserts, that the judge’s decision fell within the area of discretion committed to the trier of fact in a case like this, and, consequently, that the trial court’s judgment must be affirmed.

The factual background of this appeal is simple and largely undisputed. Beginning in 2008, O’Brien leased property in Edgartown to defendants Chris and Sarah Lynch (“Lynches”). The lease expired on May 31 and was annually extended through May, 2011. The last lease, for 2010-2011, specified a monthly rent of $1,800.00. While O’Brien and the Lynches discussed a further extension, and O’Brien proposed an increase to $1,850.00 per month, no agreement was reached. On April 25, 2011, O’Brien notified the Lynches that she no longer wanted to renew their tenancy and that the last day of the tenancy would be May 31,2011.

On May 25,2011, the Lynches sent O’Brien an e-mail informing her that they had been unable to find replacement housing and that they “will not be able to vacate the property.” They said that they were sending a check for the June “rent” and suggest[72]*72ed O’Brien should retain the previously paid “last month” to cover May’s rent, which had not been paid.2 This was followed by an e-mail on May 29 from them agreeing to remain as “a tenant at sufferance,” but seeking clarification of the “absolute day to be out.” O’Brien’s husband, who was acting as her agent, responded eleven minutes later, saying O’Brien “need[ed] ... the property not later than June 30, as it would take us 3-4 weeks to get the house ready for use it [sic] in August.” That way, “we could have at least a month during the season.” O’Brien’s husband noted that June 30, 2011 was an “absolute date,” because “otherwise we ourselves can’t make plans ... air/ferry reservations, getting workers to come in for painting etc.”

With no meeting of the minds, O’Brien proceeded to initiate a summary process action, seeking possession and $1,800.00 use and occupancy for June. The case was tried without a jury on July 8 and August 12,2011. The only testimony preserved for us is that of O’Brien and Ralph Dostal (“Dostal”), a real estate agent who testified as her expert. Posttrial briefs were received on August 18 and judgment was entered on August 19, 2011. The judgment awarded O’Brien possession, but stayed execution until October 1,2011. It also awarded “rent” at $1,850.00 per month for all months of the Lynches’ holdover, including August and September, unless they vacated earlier. The Lynches’ counterclaim was dismissed.3 The sole issue raised in O’Brien’s appeal is her claim that the trial judge erred by awarding her damages at the monthly rate she had proposed in her draft extension, rather than a total of $23,200.00.4

Given the trial court’s finding, not challenged on appeal, that the Lynches “had no right to remain in the premises” after May 31, 2011, O’Brien is certainly entitled to money damages from that date to when they actually vacated. The parties correctly agreed that the Lynches were tenants at sufferance after May 31. See, e.g., Kaseta v. Brockton Lithuanian Citizens Assoc., 16 Mass. App. Dec. 16, 20 (1958). General Laws c. 186, §3 provides that tenants at sufferance are liable for “rent” for such periods as they occupy the property. “Rent” under that statute has been construed as what the property is “reasonably worth” or its fair market value, a calculation that permits consideration of a variety of factors. See, e.g., Lowell Hous. Auth. v. Save-Mor Furniture, 346 Mass. 426, 431 (1963); Kobayashi v. Orion Ventures, Inc., 42 Mass. App. Ct. 492, 502 (1997). But see Kaseta v. Brockton Lithuanian Citizens Assoc., supra at 23 (parties can agree by contract on different holdover “rent”). An important, though not dispositive, factor in that calculation is the rent that the parties had agreed upon in the expired tenancy. Gordon v. Sales, 337 Mass. 35, 37 (1958); Emmons v. Scudder, 115 Mass. 367, 371 (1874).

[73]*73The trial court’s decision notes there was “no evidence of the exact amount of lost rental income nor of the market value of [the property for] the aforementioned rental period.” But rather than awarding O’Brien zero or nominal damages, the judge ordered the Lynches to pay O’Brien $1,850.00 per month, $50.00 more than the monthly rental under the expired lease and the same amount O’Brien proposed in the draft extension she sent the Lynches in April. O’Brien appeals that decision.

1. The focus of this appeal is the above-quoted language in the judge’s findings that there was “no evidence of the exact amount of lost rental income.” That statement is literally true; Dostal’s estimate of lost profits was, as discussed below, far from exact. O’Brien asks us, however, to recast the judge’s evaluation of the state of the evidence into a conclusion of law that the plaintiff had the burden of establishing her lost profits “exactly.” That, of course, would not be a correct statement of law. The well-established rule is that a plaintiff is not required to prove damages with mathematical exactness. See, e.g., Snelling & Snelling of Mass., Inc. v. Wall, 345 Mass. 634, 636 (1963); Lowrie v. Castle, 225 Mass. 37, 51 (1916). What is required for recovery is for the plaintiff to establish her lost profits, or any damages, with reasonable certainty so the trier of fact is not required to resort to speculation or hypotheses. See Augat, Inc. v. Aegis, Inc., 417 Mass. 484, 488 (1994).

In this case, we conclude that the words in question were not intended as an (incorrect) statement of law. They are not phrased as conclusions of law; indeed, the record does not disclose that any conclusions or findings were requested at trial. In effect, O’Brien asks us to adopt the approach urged by the appellant in Advanced Spine Ctrs. v. Enterprise Rent-A-Car Co. of Boston, Inc., 2012 Mass. App. Div. 117, that is, to treat the judge’s “phrasing” as if it were a ruling of law and, thus, as “appeal-able and reversible.” Id. at 119. Like the Appellate Division in Advanced Spine Ctrs., we read the trial judge’s wording differently. If he had intended to rule, as a matter of law, that O’Brien had to prove her “exact” lost profits with mathematical exactness, contrary to many published decisions, he would have said so. Instead, his words were “couched not as a ruling of law but as a finding of fact, and we treat it as such.” Id.

Although the use of “exact” may have been less than precise, we conclude that the judge’s findings reflect a clear intent to award O’Brien full compensation for her loss of rental income during June, July, and August, the time the judge recognized as “the peak of the rental season and the time of the year commanding the highest rents.” That is just what O’Brien sought. The judge concluded, however, that Dostal’s testimony did not prove the specific amount of damages O’Brien sought with enough clarity to avoid him having to resort to speculation.

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Related

Augat, Inc. v. Aegis, Inc.
631 N.E.2d 995 (Massachusetts Supreme Judicial Court, 1994)
Gordon v. Sales
147 N.E.2d 803 (Massachusetts Supreme Judicial Court, 1958)
Snelling & Snelling of Massachusetts, Inc. v. Wall
189 N.E.2d 231 (Massachusetts Supreme Judicial Court, 1963)
Jet Spray Cooler, Inc. v. Crampton
385 N.E.2d 1349 (Massachusetts Supreme Judicial Court, 1979)
Lowell Housing Authority v. Save-Mor Furniture Stores, Inc.
193 N.E.2d 585 (Massachusetts Supreme Judicial Court, 1963)
Millennium Equity Holdings, LLC v. Mahlowitz
925 N.E.2d 513 (Massachusetts Supreme Judicial Court, 2010)
Emmons v. Scudder
115 Mass. 367 (Massachusetts Supreme Judicial Court, 1874)
Lowrie v. Castle
225 Mass. 37 (Massachusetts Supreme Judicial Court, 1916)
Demoulas v. Demoulas Super Markets, Inc.
677 N.E.2d 159 (Massachusetts Supreme Judicial Court, 1997)
O'Brien v. Pearson
868 N.E.2d 118 (Massachusetts Supreme Judicial Court, 2007)
Kobayashi v. Orion Ventures, Inc.
678 N.E.2d 180 (Massachusetts Appeals Court, 1997)
Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc.
864 N.E.2d 518 (Massachusetts Appeals Court, 2007)
Kaseta v. Brockton Lithuanian Citizens Ass'n
16 Mass. App. Dec. 16 (Mass. Dist. Ct., App. Div., 1958)
JonJame Realty Trust v. Ryan
2011 Mass. App. Div. 16 (Mass. Dist. Ct., App. Div., 2011)
Advanced Spine Centers, Inc. v. Enterprise Rent-A-Car Co. of Boston, Inc.
2012 Mass. App. Div. 117 (Mass. Dist. Ct., App. Div., 2012)

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2013 Mass. App. Div. 71, 2013 WL 1729196, 2013 Mass. App. Div. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obrien-v-lynch-massdistctapp-2013.