LENOX FARMS LIMITED PARTNERSHIP v. MOHAMED KASSEM (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The putative intervener, Sandra Frommer, appeals from an order of a Housing Court judge denying her renewed motion to intervene in a summary process case concerning the property that she asserts she occupies.² Concluding that Frommer has not shown that she demonstrated the requirements for intervention, we affirm.

1. Standard of review. “An ‘interlocutory order denying intervention as of right under Mass. R. Civ. P. 24 (a), 365 Mass. 769 (1974), is immediately appealable.’ ” Reznik v. Garaffo, 466 Mass. 1034, 1035 (2013), quoting Care & Protection of Richard, 456 Mass. 1002, 1002 (2010). “Upon timely application anyone shall be permitted to intervene in an action ․ when the applicant claims an interest relating to the property or transaction which is the subject of the action,” and the applicant “is so situated that the disposition of the action may as a practical matter impair or impede [the applicant's] ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.” Mass. R. Civ. P. 24 (a), 365 Mass. 769 (1974). “A judge has discretion in determining whether an intervening party has demonstrated facts that entitle him or her to intervention as of right, and we accordingly review the judge's factual findings for clear error.” Galbi v. Cellco Partnership, 101 Mass. App. Ct. 260, 262 (2022), quoting Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 217 (2011). “It is only after the subsidiary facts have been determined that an appellate court then determines as a matter of law whether the circumstances are sufficient to meet the requirements of intervention as of right.” Reilly v. Hopedale, 102 Mass. App. Ct. 367, 384 (2023).

2. Application. The judge denied Frommer's original motion to intervene after a hearing because “the intervenor was unable to provide any evidence of a tenancy with the Plaintiff, including the lack of a signed lease, evidence of payment of rent and/or written communications from the Plaintiff demonstrating a tenancy agreement.” The judge denied the renewed motion based on the earlier denial.³ Frommer has failed to provide us with a transcript of the February 18, 2025, hearing where her original motion to intervene was heard. Accordingly, we have no way of determining whether she established an interest relating to the subject of the action, that a disposition would impair that interest, or that her motion was timely. “[I]t is an appellant's duty to produce an appendix containing all portions of the record relevant to the issues raised on appeal.” Lodigiani v. Paré, 103 Mass. App. Ct. 140, 141 n.3 (2023). “That a transcript must be submitted to support a claim that the evidence was insufficient is not some hypertechnical requirement, but a reflection of the fact that resolution of such a claim requires the reviewing court to see the entirety of the evidence that was presented.” Covell v. Department of Social Servs., 439 Mass. 766, 782 (2003).

Nothing in the record available to us demonstrates that Frommer established an entitlement to intervention. Although she certainly has an interest in her own right to reside in the property, the judge had no power to evict her from the property in this Housing Court action in which she was not named. See 21st Mtge. Corp. v. DeMustchine, 100 Mass. App. Ct. 792, 793 (2022).

It is true that, in theory, the judge could have eventually determined that the defendants’ tenancy should be terminated because of Frommer's unauthorized presence in the apartment. In fact, he made no such finding and forestalled dismissing the matter altogether only because of this appeal. Even had he made such a finding, it would have had no force against Frommer. See 21st Mtge. Corp., 100 Mass. App. Ct. at 793.

Regarding the effect of the disposition of the Housing Court case against the defendants on Frommer's interests, there would be none. The plaintiff would have to (and indeed did) file a separate action to evict Frommer. In that action, the plaintiff would be entitled to rely only on the judge's findings on Frommer's motion to intervene, the only proceeding in which she was a full participant.⁴ See Ahearn v. Vose, 64 Mass. App. Ct. 403, 415 n.14 (2005). The judge would not be able to rely on any other factual findings in this case. See Care & Protection of Zita, 455 Mass. 272, 282 (2009). Accordingly, Frommer has failed to demonstrate that the motion judge erred.⁵

3. Conclusion. The order dated June 9, 2025, denying Frommer's renewed motion to intervene and motion to remove no-trespass order with request for protective order is affirmed. The appeal from the single justice order entered on October 1, 2025, is dismissed as moot.

So ordered.

FOOTNOTES

2.   The motion also requested a protective order and the removal of a no-trespass order. As we affirm the denial of intervention, the judge properly did not grant the other relief requested by Frommer, though of course those requests could be brought again in an action in which she was a party.

3.   We assume, with some skepticism, see McGrath v. McGrath, 65 Mass. App. Ct. 670, 672 (2006), that Frommer may appeal the denial of the renewed motion despite her failure to appeal the denial of the original motion to intervene.

4.   Indeed, that is what appears to have happened. To the extent the judge in that case overstepped, that may be adjudicated in the appeal of the preliminary injunction in that case in 26-P-420.

5.   Frommer also filed a notice of appeal from the single justice's order denying her motion for a stay pending appeal. Frommer makes no argument about that stay in her brief, but it is not evident whether she was ever instructed to include argument concerning that appeal in her brief. See Rule 15.0(b)(2) of the Rules of the Appeals Court, appearing in 97 Mass. App. Ct. 1010 (2020). In any event, the affirmance of the denial of the renewed motion to intervene makes that appeal moot. See Vorontsova v. Waronzov, 75 Mass. App. Ct. 20, 23 n.9 (2009).