MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case originated with a summary process action brought by the plaintiff, Jason Scaduto, who acquired the property by a deed following foreclosure. The original defendants, Robert and Linda Malonson, were the owners prior to foreclosure and continued to occupy the property.
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The judge issued a judgment in favor of Scaduto. The defendants filed a notice of appeal and moved to waive the appeal bond. Following a hearing, the judge issued a summary process appeal bond order allowing the waiver of the appeal bond, but requiring the defendants to pay $3,000 per month for use and occupancy of the property commencing on August 15, 2019, pursuant to G. L. c. 239, § 5(e). The requirement for the payment of use and occupancy was vacated by an order of a single justice of this court. Scaduto appealed to a panel of this court. In light of the decision of the Supreme Judicial Court in Bank of New York Mellon v. King, 485 Mass. 37 (2020), on July 16, 2020, we reversed the single justices decision on use and occupancy payments and reinstated the original order. See Scaduto v. Malonson, 98 Mass. App. Ct. 1103 (2020).
On January 4, 2021, the panel of this Court considering the appeal of the judgment in the summary process action authorized the Housing Court to consider the plaintiffs motion to dismiss the appeal due to the defendants’ failure to make use and occupancy payments during the period following the reinstatement of their obligations. (The defendants’ failure to pay any of the “back” use and occupancy payments owed from August 15, 2019, through the date of the July 2020 panel order was not the basis of the plaintiffs motion for dismissal, or the order now under review.) On February 9, 2021, a judge of the Housing Court allowed the motion and dismissed that appeal.
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This is the defendants’ appeal from the order of dismissal.
In the trial court, in response to the motion to dismiss, the defendants argued that they should not be required to pay $3,000 per month but, due to “changed circumstances,” they proposed to pay $500 per month commencing in the month of the hearing, January 2021. On appeal the defendants argue that the trial court was obligated to consider the changed circumstances that they alleged, and that the order of dismissal involved an abuse of discretion or other error of law.
The defendants failed to abide by a lawful order requiring the payment of use and occupancy as a condition of pursuing the underlying appeal. There is no contention that this order was unlawful, and the defendants did not act, at any time prior to their failure to pay the use and occupancy, to modify the amount on the basis of changed circumstance, or for that matter, on any basis. To the extent, if any, that the underlying appeal meant that only this court, and not the trial court, was vested with jurisdiction over the case -- something the defendants argue -- the defendants failed to seek a reduction in the amount of use and occupancy payments by obtaining leave of this court to seek such a reduction in the trial court, see Blair v. Selectmen of Brookline, 24 Mass. App. Ct. 261, 266 (1987), or even by seeking a reduction in the first instance in this court.
When the motion to dismiss the appeal was brought after several months of failure to pay the lawfully ordered use and occupancy following its reinstatement by a panel of this court, the motion judge was not required to consider whether changed circumstance warranted some different and lower use and occupancy payment (something that, of course, the defendants had not tendered for the months after the panel decision reinstated the use and occupancy order, or even offered in response to the motion to dismiss, except prospectively). Consequently, the judge did not abuse his discretion or commit other error of law in dismissing the appeal, and we affirm the order dismissing the appeal.
The plaintiff argues that he should be awarded attorneys fees and double costs because the appeal is frivolous. Nonetheless, he acknowledges in his brief that “there is no indication that the Malonsons were responsible for formulating the arguments on appeal and that as laypersons they likely would not have known that there was no reasonable expectation of prevailing” (quotation and citation omitted). In light of this, we do not award relief against the defendants. Although the plaintiff argues in his brief that the requested attorneys fees should be paid by the defendants’ counsel, at argument, counsel for the plaintiff acknowledged that Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019), under which attorneys fees are sought, makes no provision for a sanction to be imposed on a partys attorney. Consequently, the requests for attorneys fees and double costs are denied.
Order dated February 9, 2021, dismissing appeal affirmed.
FOOTNOTES
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. The appellants’ brief states that appellant Robert Malonson died in March of 2020, prior to the filing of this appeal in January 2021. It appears that neither a suggestion of death nor a motion for substitution was filed in the trial court, see Mass. R. Civ. P. 25, or in this court. As the plaintiff does not argue that Linda Malonson is no longer a party in interest, however, we will allow the appeal to proceed. In the absence of a filing regarding Robert Malonsons death, we will refer to appellants in the plural.
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. Following the Housing Courts February 9, 2021 order, we dismissed the appeal of the summary process judgment without prejudice to filing a motion to re-enter the appeal if this appeal is successful.