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25-P-1222 Appeals Court
PAUL ENG, trustee,1 vs. CHEN'S FOOD ENTERPRISE, INC., &
another.2
No. 25-P-1222.
Suffolk. May 7, 2026. - August 24, 2026.
Present: Shin, Ditkoff, & Tan, JJ.
Summary Process, Appeal. Judgment, Preclusive effect. Res
Judicata. Real Property, Lease. Landlord and Tenant,
Rent, Termination of lease. Notice. Statute,
Construction. Practice, Civil, Summary process.
Summary process. Complaint filed in the Roxbury Division of the Boston Municipal Court Department on February 26, 2024.
The case was heard by Kenneth J. Fiandaca, J.
Lenard B. Zide for the plaintiff.
Joshua M. Daniels for the defendants.
SHIN, J. At issue in this appeal is whether G. L. c. 239,
§ 7, which provides that a judgment in a summary process action
1 Of the 100 Norfolk Street Realty Trust.
2 Limin Chen.
2
"shall not be a bar to any action thereafter brought by either
party to recover the land or tenements in question, or to
recover damages for any trespass thereon," supersedes the
doctrine of claim preclusion. The plaintiff's first summary
process complaint against his commercial tenant, which was based
on nonpayment of rent (first action), was dismissed because of
his failure to prove that he sent a notice of termination as
required by the lease. He cured that defect and then brought
this summary process action against the tenant as well as its
principal, again claiming unpaid rent. After a bench trial, a
Boston Municipal Court judge found in favor of the plaintiff and
awarded him possession of the premises and $198,000 in damages.
On the defendants' appeal, the Appellate Division of the
Boston Municipal Court reversed the judgment on the ground that
the judgment of dismissal in the first action gave rise to claim
preclusion. We conclude that this was error because applying
claim preclusion cannot be squared with the plain language of
G. L. c. 239, § 7, which authorized the plaintiff to bring this
action. Accordingly, we reverse the decision and order of the
Appellate Division and remand the matter to the Appellate
Division for further proceedings.
3
Background. In December 2018 the plaintiff and Chen's Food
Enterprise, Inc. (Chen's Food),3 entered into a ten-year lease
for a portion of a warehouse building in the Roxbury section of
Boston. The rent was at all relevant times $9,000 per month.
In October 2023 the plaintiff filed the first action
against Chen's Food, claiming nonpayment of rent and seeking
possession and $193,581 in damages. At the close of the
plaintiff's case at trial, which occurred in January 2024,
Chen's Food moved for involuntary dismissal of the complaint
under Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974), on the
ground that the plaintiff failed to send a notice of termination
as required by the lease. The judge allowed the motion,
concluding that the plaintiff did not prove that he sent a
notice of termination and that under Cambridge St. Realty, LLC
v. Stewart, 481 Mass. 121, 129 (2018), this constituted a
"failure of the [plaintiff's] prima facie case." Judgment of
dismissal entered on February 2, 2024.
On February 12, 2024, the plaintiff sent a notice of
termination addressed to Limin Chen, stating that he was
terminating the lease based on Chen's Food's failure to pay past
3 The judge found, and we accept for purposes of this appeal, that Chen's Food "in one form or another, has been the de facto nominee tenant throughout, except for periods when no corporation of that name existed. During those times, Limin Chen acted as tenant."
4
due rent. Two weeks later, the plaintiff filed this action
against Chen's Food, claiming both nonpayment of rent and
wrongful transfer of the lease. This time the plaintiff sought
$205,267.50 in damages as well as possession.4 The plaintiff
later moved to amend the complaint to add Limin Chen as a
defendant, which the judge (the same judge as in the first
action) allowed.
The defendants then moved for judgment on the pleadings,
arguing among other things that the dismissal of the first
action precluded this action. On the first day of trial, which
occurred over three days in June 2024, the judge denied the
motion from the bench, stating that "[t]he basis of the
dismissal [of the first action] . . . was dismissal for want of
compliance with the procedural terms of the lease and the notice
of termination, and not an adjudication on the merits." The
defendants then renewed their claim-preclusion argument through
motions for involuntary dismissal at the close of the
plaintiff's case and again at the close of all the evidence.
The judge denied both motions.
Following the trial the judge issued a detailed written
decision finding that the plaintiff was entitled to possession
4 The parties dispute whether the claims in this action are based on the same months of unpaid rent that were at issue in the first action. We need not resolve that dispute as it is not material to our analysis.
5
and $198,000 in damages plus interest and costs. The defendants
appealed from the judgment to the Appellate Division, raising
four arguments in their brief, including claim preclusion. In
his responsive brief, the plaintiff argued among other things
that under G. L. c. 239, § 7, a judgment in a summary process
action is not a bar to a successive summary process action.
A panel of the Appellate Division concluded that the judge
erred by failing to apply claim preclusion and reversed the
judgment. The panel reasoned that claim preclusion barred this
action because the involuntary dismissal of the first action was
"an adjudication on the merits as to the issues at bar" and the
"judge did not indicate the adjudication was without prejudice."
The panel found it unnecessary to reach the defendants'
remaining arguments.
Discussion. On review of a decision of the Appellate
Division, "we can enter such order as that court ought to have
entered." Worldwide Commodities, Inc. v. J. Amicone Co., 36
Mass. App. Ct. 304, 308 (1994). We review questions of law,
such as those involving statutory interpretation and claim
preclusion, de novo. See Sabatini v. Knouse, 497 Mass. 573, 579
(2026); Laramie v. Philip Morris USA Inc., 488 Mass. 399, 404
(2021).
Although the parties devote much of their briefing to
debating the application of the elements of claim preclusion, we
6
need not resolve those issues because we conclude that the
summary process statute, in particular G. L. c. 239, § 7,
authorized the plaintiff to bring his claims for possession and
damages notwithstanding the dismissal of the first action.5 In
full, G. L. c. 239, § 7, provides that
"[t]he judgment in an action under this chapter shall not
be a bar to any action thereafter brought by either party
to recover the land or tenements in question, or to recover
damages for any trespass thereon; but the amount recovered
for rent under section five[6] shall be deducted in any
assessment of damages in such subsequent action by the
original plaintiff."
The underlying complaint, brought under the summary process
statute to recover possession and damages for unpaid rent,
plainly qualifies as an "action . . . to recover the land or
tenements in question, or to recover damages for any trespass
thereon." Id. The judgment in the first action was therefore
"not . . . a bar" to this action. Id. See Miller v. Campello
Co-op. Bank, 344 Mass. 76, 79 (1962) (prior judgment in summary
process action was "not a bar to any action thereafter brought
by either party to recover the land"). And because applying
claim preclusion would be inconsistent with the express terms of
G. L. c. 239, § 7, "the common-law doctrine [must] necessarily
5 We disagree with the defendants that the plaintiff has not adequately briefed any argument based on G. L. c. 239, § 7.
6 That section authorizes courts to require defendants to post a bond or make periodic rent payments before pursuing an appeal. G. L. c. 239, § 5.
7
give way in order to effectuate the purpose of the statute."
Business Interiors Floor Covering Business Trust v. Graycor
Constr. Co., 494 Mass. 216, 226 (2024), quoting Chelsea Hous.
Auth. v. McLaughlin, 482 Mass. 579, 591 (2019).
Without confronting the plain language of G. L. c. 239,
§ 7, the defendants assert that the preclusive effect of the
judgment in the first action is governed by Mass. R. Civ. P.
41 (b) (3), as amended, 454 Mass. 1403 (2009), which provides
that, with exceptions not applicable here, an involuntary
dismissal "operates as an adjudication upon the merits," "unless
the court in its order for dismissal otherwise specifies." We
disagree. The rules of civil procedure do "not govern[]"
summary process proceedings. Bank of Am., N.A. v. Rosa, 466
Mass. 613, 624 (2013). See Mass. R. Civ. P. 81 (a) (1), as
amended, 481 Mass. 1401 (2018). Although they may be used to
"fill in any procedural gaps" in the Uniform Summary Process
Rules, ROPT Ltd. Partnership v. Katin, 431 Mass. 601, 607
(2000), this cannot be done in a way that would be "inconsistent
. . . with applicable statutory law," Rosa, supra, quoting Rule
1 of the Uniform Summary Process Rules (2012). The statute here
provides generally that "[t]he judgment" in a summary process
proceeding "shall not be a bar" to a successive proceeding to
recover possession or damages for trespass and contains no
requirement that any prior order of dismissal specify that it
8
was not an adjudication on the merits. G. L. c. 239, § 7.
Thus, it is immaterial that the judge's order of dismissal in
the first action did not expressly state that the dismissal was
without prejudice. See Fafard v. Lincoln Pharmacy of Milford,
Inc., 439 Mass. 512, 515 (2003) ("Because we conclude that the
summary process statute precludes counterclaims in commercial
actions, it is inappropriate to turn to the Massachusetts Rules
of Civil Procedure, as the tenant suggests").
We are also unpersuaded by the defendants' argument, raised
in the briefs they filed before the Appellate Division, that
G. L. c. 239, § 7, should not be read literally to limit the
application of claim preclusion because it would lead to absurd
results. It is not the case, as the defendants asserted, that a
literal reading would allow a landlord who "loses at trial [to]
bring the same case, on the same theory, until he wins (or until
the tenant gives in)." That is because issue preclusion, as
opposed to claim preclusion, would apply in that situation
notwithstanding G. L. c. 239, § 7. As we reasoned in Duross v.
Scudder Bay Capital, LLC, 96 Mass. App. Ct. 833, 839 (2020),
"[o]n its face, [the] language [of G. L. c. 239, § 7,] speaks to
whether a summary process judgment serves as a bar to actions to
recover property, not to whether issues actually litigated in a
summary process action can be relitigated in a new action." We
therefore concluded that any issues that are actually litigated
9
in a summary process action will be precluded in a subsequent
action. See id. at 839-840. Accord Bigelow v. Reem Prop., LLC,
102 Mass. App. Ct. 590, 593-595 (2023).7
While the defendants implicitly acknowledged in their
Appellate Division briefs that issue preclusion will prevent
parties from relitigating issues that they actually litigated
and lost, they argued that claim preclusion is still necessary
to avoid absurdity because default judgments and agreements for
judgment, which are common dispositions in summary process
cases, do not involve actual litigation of issues. As a result,
they posited, unless such judgments are given claim-preclusive
effect, summary process actions "will never be conclusively
resolved through those means," opening the floodgates to tenants
later suing to reinstate their tenancies. We are not persuaded.
The defendants did not identify any cause of action that tenants
could bring to recover possession once they have lost a summary
process action by default or signed an agreement for judgment,
nor are we aware of one. And to overcome the plain language of
7 In both Bigelow and Duross, we left open the question whether G. L. c. 239, § 7, limits the application of claim preclusion. See Bigelow, 102 Mass. App. Ct. at 592 n.3; Duross, 96 Mass. App. Ct. at 840 n.12. Furthermore, although we gave claim-preclusive effect to summary process judgments in Santos v. U.S. Bank Nat'l Ass'n, 89 Mass. App. Ct. 687, 692-696 (2016), and Bui v. Ma, 62 Mass. App. Ct. 553, 561-563 (2004), we did so without mentioning G. L. c. 239, § 7, which was not cited by the parties in either case.
10
G. L. c. 239, § 7, the defendants must do more than raise a
possibility that a literal construction will lead to some
unintended consequences. Rather, the consequences must be so
"'absurd or unreasonable,' such that [they] could not be what
the Legislature intended." Ciani v. MacGrath, 481 Mass. 174,
178 (2019), quoting Sharris v. Commonwealth, 480 Mass. 586, 594
(2018).
We do not think a literal construction of G. L. c. 239,
§ 7, is inconsistent with legislative intent. It is not
uncommon for summary process actions to be dismissed because of
procedural defects, such as those relating to the notice to
quit. See, e.g., Youghal, LLC v. Entwistle, 484 Mass. 1019,
1022 (2020) (tenants entitled to judgment because landlord
commenced summary process action before fourteen days had lapsed
since tenants' "actual receipt" of notice to quit); Federal
Nat'l Mtge. Ass'n v. Nunez, 460 Mass. 511, 520 n.11 (2011) ("A
foreclosing owner that has just cause to evict but has not
alleged just cause in the notice to quit and the summary process
action needs to recommence the summary process procedure and
issue a new notice to quit asserting just cause and, if the
tenant does not vacate, file a new summary process complaint").
Were claim-preclusive effect to be given to such dismissals,
plaintiffs would be forever barred from recovering possession of
the property absent some new default committed by the defendant.
11
And where, as in this case, the plaintiff has also raised a
claim for damages, he would be forever barred from recovering
them, including for any unpaid rent. This would be a
particularly unfair result given that the plaintiff here did not
have an opportunity to fully litigate his damages claim, which
was dismissed along with his claim for possession because of the
unique nature of summary process proceedings. Indeed, had the
plaintiff instead chosen not to join his damages claim, there is
no question that he could have still raised it in a subsequent
proceeding. See G. L. c. 239, § 2 ("Failure to claim rent and
use and occupation in the action shall not bar a subsequent
action therefor").
For these reasons we conclude that the plain language of
G. L. c. 239, § 7, is controlling and authorized the plaintiff
to bring this action. The Appellate Division thus erred in
applying claim preclusion and reversing the judgment on that
basis. Because the Appellate Division did not reach the
defendants' remaining arguments, which have not been briefed to
us by either party, a remand is necessary for the Appellate
Division to address those arguments in the first instance. See
Matter of F.C., 479 Mass. 1029, 1030 (2018); Commonwealth v.
Drury, 79 Mass. App. Ct. 843, 849 (2011).8
8 The defendants maintain, and the plaintiff does not contest, that remand to the Appellate Division would be the
12
Conclusion. The decision and order of the Appellate
Division is reversed, and the matter is remanded to the
Appellate Division for further proceedings consistent with this
opinion.
So ordered.
appropriate disposition were we to conclude that claim preclusion does not bar this action.