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-383
PINE TREE VILLAGE RESIDENTS ASSOCIATION, INC.
vs.
SANDRA ALMEIDA & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal arises from a residential summary process
action in the Housing Court. For the reasons we explain, we
reverse the order granting the tenants' preliminary injunction
and dissolve the injunction itself.
Background. On January 6, 2020, the parties resolved the
case through an agreement for judgment (agreement), with
execution to issue on April 1, 2020. In salient part, the
tenants agreed to "clean up and maintain the exterior of the
property" "on or before April 30, 2020" (conditions) in exchange
for the landlord's agreement not to levy on its execution. The
parties agreed that "[i]f the tenant complies with these
1 Lorenzo Almeida and Robert Almeida. The landlord voluntarily dismissed Lorenzo Almeida before judgment entered in this matter. None of the tenants filed a brief or participated in the appeal. conditions, the case will be dismissed on May 3, 2021 and the
tenancy will be reinstated on that date."2 They further agreed
that "[i]f either party alleges that the other party has failed
to comply with the terms and conditions of this [a]greement,
she/he may mark a hearing for enforcement" (enforcement
provision).
On June 21, 2021, the landlord filed a motion to enforce
the judgment and to issue the execution, representing that the
tenants had failed to undertake the agreed-upon cleanup of the
property. The docket indicates that a judge allowed the motion
as a motion for an alias execution3 and ordered that the
execution issue forthwith. The execution issued that same day,
July 12, 2021. The following day, the tenants filed a motion
seeking to stay levy on the execution. A second judge (judge)
denied the tenant's motion for reasons including his conclusion
2 The agreement also required the tenants to successfully complete "[a] probationary period for [twelve] months" ending April 30, 2021. We understand the tenants' entitlement to the probationary period to have been conditioned on their completing the required cleanup by the April 30, 2020, deadline. 3 An alias execution issues when more than one year has passed
since the original execution issued. See G. L. c. 235, § 17. The agreement provided for the execution to issue on April 1, 2020. The docket reflects the issuance of the original execution on that day; at oral argument, however, counsel for the landlord represented that no execution actually issued, based on the emergency moratorium on evictions imposed by the Legislature in response to the COVID-19 pandemic. Nothing turns on whether the execution issued, and so we do not resolve the question.
2 that the tenants had "failed to comply [with the terms of the
agreement for judgment.]"
Several weeks later, on September 8, 2021, the tenants
filed another motion for an order to stay levy on the execution.4
This time, however, the judge granted a "PI"5 enjoining the
landlord from levying on its execution.6 The judge's endorsement
reflected his determination that "the tenancy was reinstated on
[May 3, 2021]." The landlord filed a timely appeal from the
order granting the injunction and, within a week of the judge's
decision, moved for reconsideration and dissolution of the
injunction. At a hearing on the landlord's motion for
reconsideration, the judge considered the enforcement provision
of the agreement and concluded that under the agreement, the
landlord "[had] an obligation to bring [the matter forward for]
enforcement" by May 3, 2021. He concluded that because the
4 The motion explicitly sought a stay of the landlord's ability to levy on the monetary portion of the judgment -- $395.95 in court costs. It was silent as to the issue of possession, but the landlord's argument does not rely on that fact. 5 We interpret "PI" to mean "preliminary injunction." 6 The landlord represents that no hearing was held on the motion
(the docket reflects that the motion was "allowed in lobby") and that it was not given notice that the judge was considering issuing a preliminary injunction, rather than the temporary restraining order requested in the tenants' written motion. See Mass. R. Civ. P. 65 (b) (1), 365 Mass. 832 (1974) ("No preliminary injunction shall be issued without notice to the adverse party"). Given our conclusion, infra, that the tenants failed to show a likelihood of success on the merits, and so were not entitled to injunctive relief on that basis, we need not reach the landlord's notice-based argument.
3 landlord had failed to seek enforcement by that date, the
tenancy had been reinstated on May 3.7 The judge denied the
landlord's motion to dissolve the preliminary injunction and
this appeal followed.
Discussion. "Typically, to obtain preliminary injunctive
relief, the moving party must show that '(1) success is likely
on the merits; (2) irreparable harm will result from the denial
of the injunction; and (3) the risk of irreparable harm to the
moving party outweighs any similar risk of harm to the opposing
party.'" Massachusetts Port Auth. v. Turo Inc., 487 Mass. 235,
247 (2021) (Turo), quoting Cote-Whitacre v. Department of Pub.
Health, 446 Mass. 350, 357 (2006). On appeal, the landlord
focuses exclusively on the first of these considerations -- the
tenants' likelihood of success on the merits of their claim.
"We review a decision on a motion for a preliminary injunction
to determine whether there was an error of law or whether the
judge abused his or her discretion. . . ." Turo, supra at 239.
We conclude that the judge erred in his interpretation of
the parties' agreement. The agreement provided that in the
event of one party's failure to comply with the agreed-upon
terms, the other party "may mark a hearing" seeking enforcement.
7 In the hearing, the judge also seemed to suggest that as of May 3, 2021, the case was dismissed. No such dismissal has entered on the trial court docket. The original judgment, incorporating the agreement for judgment, remains in effect.
4 It is well-settled that "may" is permissive, not mandatory. See
Shea v. Selectmen of Ware, 34 Mass. App. Ct. 333, 335 (1993),
quoting Brennan v. Election Comm'rs of Boston, 310 Mass. 784,
786 (1942) ("[T]he word 'may' is not an apt word to express a
positive mandate. It is a word of permission and not of
command."). It follows, then, that the tenants' failure to
clean the property as agreed triggered the landlord's ability to
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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-383
PINE TREE VILLAGE RESIDENTS ASSOCIATION, INC.
vs.
SANDRA ALMEIDA & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal arises from a residential summary process
action in the Housing Court. For the reasons we explain, we
reverse the order granting the tenants' preliminary injunction
and dissolve the injunction itself.
Background. On January 6, 2020, the parties resolved the
case through an agreement for judgment (agreement), with
execution to issue on April 1, 2020. In salient part, the
tenants agreed to "clean up and maintain the exterior of the
property" "on or before April 30, 2020" (conditions) in exchange
for the landlord's agreement not to levy on its execution. The
parties agreed that "[i]f the tenant complies with these
1 Lorenzo Almeida and Robert Almeida. The landlord voluntarily dismissed Lorenzo Almeida before judgment entered in this matter. None of the tenants filed a brief or participated in the appeal. conditions, the case will be dismissed on May 3, 2021 and the
tenancy will be reinstated on that date."2 They further agreed
that "[i]f either party alleges that the other party has failed
to comply with the terms and conditions of this [a]greement,
she/he may mark a hearing for enforcement" (enforcement
provision).
On June 21, 2021, the landlord filed a motion to enforce
the judgment and to issue the execution, representing that the
tenants had failed to undertake the agreed-upon cleanup of the
property. The docket indicates that a judge allowed the motion
as a motion for an alias execution3 and ordered that the
execution issue forthwith. The execution issued that same day,
July 12, 2021. The following day, the tenants filed a motion
seeking to stay levy on the execution. A second judge (judge)
denied the tenant's motion for reasons including his conclusion
2 The agreement also required the tenants to successfully complete "[a] probationary period for [twelve] months" ending April 30, 2021. We understand the tenants' entitlement to the probationary period to have been conditioned on their completing the required cleanup by the April 30, 2020, deadline. 3 An alias execution issues when more than one year has passed
since the original execution issued. See G. L. c. 235, § 17. The agreement provided for the execution to issue on April 1, 2020. The docket reflects the issuance of the original execution on that day; at oral argument, however, counsel for the landlord represented that no execution actually issued, based on the emergency moratorium on evictions imposed by the Legislature in response to the COVID-19 pandemic. Nothing turns on whether the execution issued, and so we do not resolve the question.
2 that the tenants had "failed to comply [with the terms of the
agreement for judgment.]"
Several weeks later, on September 8, 2021, the tenants
filed another motion for an order to stay levy on the execution.4
This time, however, the judge granted a "PI"5 enjoining the
landlord from levying on its execution.6 The judge's endorsement
reflected his determination that "the tenancy was reinstated on
[May 3, 2021]." The landlord filed a timely appeal from the
order granting the injunction and, within a week of the judge's
decision, moved for reconsideration and dissolution of the
injunction. At a hearing on the landlord's motion for
reconsideration, the judge considered the enforcement provision
of the agreement and concluded that under the agreement, the
landlord "[had] an obligation to bring [the matter forward for]
enforcement" by May 3, 2021. He concluded that because the
4 The motion explicitly sought a stay of the landlord's ability to levy on the monetary portion of the judgment -- $395.95 in court costs. It was silent as to the issue of possession, but the landlord's argument does not rely on that fact. 5 We interpret "PI" to mean "preliminary injunction." 6 The landlord represents that no hearing was held on the motion
(the docket reflects that the motion was "allowed in lobby") and that it was not given notice that the judge was considering issuing a preliminary injunction, rather than the temporary restraining order requested in the tenants' written motion. See Mass. R. Civ. P. 65 (b) (1), 365 Mass. 832 (1974) ("No preliminary injunction shall be issued without notice to the adverse party"). Given our conclusion, infra, that the tenants failed to show a likelihood of success on the merits, and so were not entitled to injunctive relief on that basis, we need not reach the landlord's notice-based argument.
3 landlord had failed to seek enforcement by that date, the
tenancy had been reinstated on May 3.7 The judge denied the
landlord's motion to dissolve the preliminary injunction and
this appeal followed.
Discussion. "Typically, to obtain preliminary injunctive
relief, the moving party must show that '(1) success is likely
on the merits; (2) irreparable harm will result from the denial
of the injunction; and (3) the risk of irreparable harm to the
moving party outweighs any similar risk of harm to the opposing
party.'" Massachusetts Port Auth. v. Turo Inc., 487 Mass. 235,
247 (2021) (Turo), quoting Cote-Whitacre v. Department of Pub.
Health, 446 Mass. 350, 357 (2006). On appeal, the landlord
focuses exclusively on the first of these considerations -- the
tenants' likelihood of success on the merits of their claim.
"We review a decision on a motion for a preliminary injunction
to determine whether there was an error of law or whether the
judge abused his or her discretion. . . ." Turo, supra at 239.
We conclude that the judge erred in his interpretation of
the parties' agreement. The agreement provided that in the
event of one party's failure to comply with the agreed-upon
terms, the other party "may mark a hearing" seeking enforcement.
7 In the hearing, the judge also seemed to suggest that as of May 3, 2021, the case was dismissed. No such dismissal has entered on the trial court docket. The original judgment, incorporating the agreement for judgment, remains in effect.
4 It is well-settled that "may" is permissive, not mandatory. See
Shea v. Selectmen of Ware, 34 Mass. App. Ct. 333, 335 (1993),
quoting Brennan v. Election Comm'rs of Boston, 310 Mass. 784,
786 (1942) ("[T]he word 'may' is not an apt word to express a
positive mandate. It is a word of permission and not of
command."). It follows, then, that the tenants' failure to
clean the property as agreed triggered the landlord's ability to
seek enforcement of the parties' agreement, not an obligation to
do so at any particular time after the compliance deadline had
come and gone.8 See Shea, supra at 335-336. With this in mind,
we conclude that the judge erred in ruling that the landlord's
failure to seek enforcement of the agreement by May 3, 2021, had
the effect of reinstating the tenants' tenancy as of that date.9
Because we thus discern no likelihood of success on the tenants'
claims, we vacate the order staying the levy on the execution
and dissolve the preliminary injunction. See Fordyce v.
Hanover, 457 Mass. 248, 267 (2010) ("preliminary injunction
8 Indeed, while recognizing the judge's concerns about the finality of the judgment, we see valid policy reasons supporting an interpretation that would not require a landlord holding an execution to "use it or lose it." 9 The landlord has made no argument concerning the remaining
requirements for issuance of a preliminary injunction. Accordingly, they are waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). In any event, given our conclusion, infra, that the tenants were unlikely to succeed on the merits of their claim, reversal is required.
5 cannot survive if the [moving parties] are unlikely to succeed
on the merits").
Given our conclusion, we need not and do not reach the
landlord's remaining arguments.
Conclusion. The order dated September 8, 2021, granting a
preliminary injunction is reversed, and the preliminary
injunction is dissolved.
So ordered.
By the Court (Meade, Desmond & Hand, JJ.10),
Clerk
Entered: February 23, 2023.
10 The panelists are listed in order of seniority.