OMORODION MOGAJI v. ROSELAND PROPERTY MANAGEMENT CO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is an appeal from a judgment in the Northeast Housing Court dismissing the plaintiff's claims. We vacate the judgment.

The plaintiff, a former tenant of the defendant landlords, has sued the landlords in a complaint that states a damages claim for conversion, negligent loss of property, and violation of G. L. c. 93A. Defendant Roseland Property Management (property manager) was the manager of the apartment complex where the plaintiff lived at the time of her tenancy. The other defendants are the apartment complex and the current property manager.

The plaintiff alleges that on September 30, 2014, the date that she moved out of her apartment, she went to the storage room in her building to pack some possessions that were stored in a locked assigned storage unit. She discovered that the locks on her storage unit had been changed. There was a notice on the door indicating that she should contact the management office. She then moved out and returned her keys to the management office and requested immediate access to the storage unit from a manager, who told her that the person handling storage was not available at that time but that the plaintiff could check back again with the office another time to get access. The plaintiff called the property manager multiple times to no avail, leaving voice messages. She then sent an e-mail to the operations manager on October 1, 2014, informing him that she had seen the note affixed to the storage door indicating that the locks had been changed, that her property remained locked in storage, and that she was waiting to hear from him about retrieving her belongings. Although the property manager responded “OK,” no one was ever in the operations management office when the plaintiff visited several times between September 30 and November 20, 2014.

On November 20, 2014, the plaintiff sent a demand letter to the property manager who did not respond but who did send her a security deposit check, albeit for less than the amount the plaintiff had deposited as security. In 2015, the plaintiff filed a complaint with the Housing Court seeking an injunction allowing her access to her property in the storage unit. Her statement of small claims and notice of trial stated “I have made every effort to no avail. Thank you.” She also sought the balance of her security deposit.

The matter was scheduled for trial on December 11, 2015, but the property manager failed to appear. As a result, a default judgment was entered for the plaintiff on December 14, 2015. With respect to the plaintiff's property in storage, the court ordered the property manager to “grant to the plaintiff access to her storage unit at the premises to retrieve her personal property.” The plaintiff made several attempts to reach the property manager by telephone, all, again, to no avail. On February 12, 2016, she filed a motion to enforce the judgment.

At the hearing on that motion on March 11, 2016, the plaintiff appeared pro se. The property manager appeared through counsel. At the hearing, counsel for the property manager represented that the storage unit had “been assigned to several other tenants” since the plaintiff's departure from the residence, and that it “does not contain any of the plaintiff's personal property.” This information was contained in a court order denying the plaintiff's motion to enforce the judgment on the grounds that the property manager was no longer in possession of the plaintiff's property. That order also stated, “If the plaintiff believes that she has additional claims with respect to her personal property, she may file a separate small claims or civil action.”

On May 25, 2018, the plaintiff brought the instant action, alleging damages in the amount of $1,547.86 plus court costs. The case was transferred from the small claims docket to the civil docket. The court has the authority, under rule 4 (b) of the Uniform Small Claims Rules (2009) and G. L. c. 218, § 24, to transfer a case begun under the small claims procedure to the regular civil docket for formal hearing and determination as though it had been begun by summons and complaint. See Murphy v. Miller, 75 Mass. App. Ct. 210, 212 (2009) (case in small claims session of Housing Court Department transferred to civil session pursuant to rule 4 [b] of Uniform Small Claims Rules). The plaintiff's claim was, however, dismissed on the grounds that it was barred by the three-year statute of limitations for tort actions. G. L. c. 260, § 2A. The plaintiff has now appealed.

The plaintiff argues that under the discovery rule her cause of action did not accrue until after May 25, 2015; her May 25, 2018 tort claims were therefore timely. Under the discovery rule, a cause of action accrues when “a plaintiff knows, or reasonably should have known, ‘that she has been harmed or may have been harmed by the defendant's conduct.’ ” Evans v. Lorillard Tobacco Co., 465 Mass. 411, 449 (2013), quoting Bowen v. Eli Lilly & Co., 408 Mass. 204, 205-206 (1990). The defendants, by contrast, argue that the plaintiff's claim accrued on the date she left the apartment without her personal property on September 30, 2014. The defendants further argue that she should have brought this claim at the time she brought her initial action for injunctive relief.

We disagree. Taking the plaintiff's allegations –- which are in any even uncontested –- as true, as we must on a motion to dismiss, see Genovesi v. Nelson, 85 Mass. App. Ct. 43, 46 (2014); Reliance Ins. Co. v. Boston, 71 Mass. App. Ct. 550, 555 (2008), on the date that the plaintiff left the apartment she attempted to recover her property from the storage locker. Unbeknownst to her, the property manager had changed the locks and posted a note directing the steps it required her to take in order to retrieve the property she alleges was in the storage locker. The plaintiff diligently pursued the method specified by the property manager for retrieving her property, set out by the property manager in the note. Indeed, she put the property manager on notice, and the property manager's operations manager responded “OK.” The property manager did not inform her that it did not have possession of her property. Reasonably believing it was still locked in the storage unit after engaging in due diligence, but unable to get the property manager to allow her access, in her initial action the plaintiff sought only an injunction for access to her property.

The causes of action here, by contrast, all depend on the plaintiff having been permanently deprived of her property through the negligent or intentional acts of the defendants. These causes of action did not accrue until the plaintiff discovered or, with due diligence, reasonably should have discovered the injury that resulted from those acts. See Bowen, 408 Mass. at 210 (“we test the accrual of her cause of action by what a reasonable person in her position would have known or on inquiry would have discovered at the various relevant times”). She exercised due diligence, and she did not, and reasonably should not, have discovered her property was lost (assuming it is) until she was so informed by the defendants. The property manager did not respond to her repeated telephone calls, visits, November 2014 demand letter, or initial lawsuit. Indeed, in that matter the property manager failed to appear at trial and defaulted, with the judge issuing an injunction against it that would have given the plaintiff access to the storage locker. Even then, the property manager did not inform her that her property was lost –- if it was at that point in time –- but, rather, disobeyed that order, requiring the plaintiff to seek to enforce the judgment two months later.

Despite the plaintiff's diligent and reasonable action, only at the hearing on that motion on March 11, 2016, was she informed that her property was not in the locker. Given the plaintiff's diligent pursuit of her property, she should not reasonably have discovered the loss or destruction of her property until then, and that is the date upon which her cause of action for money damages for the loss or destruction of her property accrued. This is not a case where the plaintiff did nothing for three and one-half years after moving out and then brought suit, in which circumstance a judge might conclude that a reasonable person in her position should have discovered her loss earlier.

As the instant action therefore was timely brought, the judgment of dismissal is vacated.

Judgment vacated.