Opinion
18-P-816
05-20-2019
REBECCA PETERS v. RICHARD BURNS & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants, Richard and Jean Burns, appeal from a Superior Court judgment entered against them for negligence, breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, negligent infliction of emotional distress, and G. L. c. 93A violations. We affirm.
We use the defendants' first names where necessary to prevent confusion.
Background. Rebecca Peters rented a single-family home from Burns in Weymouth where she resided with her daughter. Peters initially signed a one-year lease but continued to reside there as a tenant at will after the end of the lease, agreeing to pay an increased monthly rent. Peters experienced numerous issues with the property, such as a squirrel's nest in the wall of the daughter's bedroom closet, flooding in the basement due to a clogged pipe, and bad plumbing. Peters notified Richard of these issues on multiple occasions. Peters performed maintenance and did repair work from time to time and Richard occasionally addressed some problems with the property.
After the winter storms of 2015, the property's basement flooded and its pipes froze. As a result, the property lost its heat and hot water. Peters promptly notified Richard of the issue and stayed in the property for the remainder of the storm. Richard did not initially respond. Peters continued to message him the following day, again without any response from him. When Peters was able to reach Richard via telephone, he informed Peters that she was responsible for the maintenance of heat and hot water, telling her that he "didn't give a fuck" about her problems and that she was a "cry-baby." After the telephone conversation, Richard messaged Peters saying that he would come by the property in the next day or two to clean. Richard went to the property a few days later and looked at the heating system but never fully remedied any of the issues regarding the heat and hot water. Unable to return to the property, Peters called the town of Weymouth board of health (board) which issued a citation against the defendants for health and sanitary code violations. The board also ordered the defendants to remedy the lack of heat, hot water, and plumbing within forty-eight hours. The defendants failed to do so and instead sent Peters a "72 Hours Notice to Vacate." After Peters left the property, she and her daughter were homeless for nine months.
Following a bench trial, the judge found in favor of Peters and her daughter on their claims for negligence, breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, negligent infliction of emotional distress, and violation of G. L. c. 93A, awarding treble damages plus attorney's fees. This appeal followed.
Discussion. 1. Standard of review. "On review of a jury-waived proceeding, we accept the judge's findings of fact unless they are clearly erroneous." South Boston Elderly Residences, Inc. v. Moynahan, 91 Mass. App. Ct. 455, 462 (2017), quoting U.S. Bank Nat'l. Ass'n v. Schumacher, 467 Mass. 421, 427 (2014). A finding is clearly erroneous when there is no evidence to support it or when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Jablonski v. Casey, 64 Mass. App. Ct. 744, 747 (2005), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). "We review the judge's rulings on questions of law de novo." U.S. Bank Nat'l. Ass'n, supra.
2. Analysis. a. Peters's status as a tenant at will. The defendants first argue that the judge erred in characterizing Peters as a tenant at will, because she was a tenant at sufferance, and accordingly, he had no duty to fix the property. We disagree.
First, the judge's finding that Peters was a tenant at will rather than a tenant at sufferance was not clearly erroneous. Absent an express agreement, a tenancy at will may be created orally as long as there is "a contractual agreement between the landlord and the tenant, and . . . the tenant exclusively occup[ies] the premises." Belizaire v. Furr, 88 Mass. App. Ct. 299, 303 (2015). See Rubin v. Prescott, 362 Mass. 281, 284-285 (1972). On the other hand, a tenancy at sufferance involves a tenant who wrongfully remains on the property after the expiration of his or her tenancy. See Ames v. Beal, 284 Mass. 56, 59 (1933). Here, Peters initially had a one-year lease that expired. However, after its expiration, the defendants raised the rent and Peters continued to pay it. Therefore, a tenancy at will was created by their oral agreement and Peters's payment of the increased rent. See Moskow v. Robinson, 276 Mass. 16, 18 (1931). Compare Maguire v. Haddad, 325 Mass. 590, 593 (1950) ("no assent on the part of the tenant by silence or acquiescence, or by paying the increase, for he steadfastly refused to pay it"). Although Peters was a half-month behind on her rent at the time that she vacated, this does not make her a tenant at sufferance, as alleged by the defendants. The judge's finding that Peters was a tenant at will, therefore, was not clearly erroneous. See Staples v. Collins, 321 Mass. 449, 451 (1947) ("it would seem that such payment and acceptance of rent, standing alone, are prima facie proof of the creation of a tenancy at will").
Accordingly, the defendants' argument that G. L. c. 186, § 14, is not available to Peters as a tenant at sufferance is without merit and the notice to vacate giving her seventy-two hours to leave the premises was unlawful. In a tenancy at will,
Even assuming, arguendo, that Peters was a tenant at sufferance, "[w]e held in Hodge v. Klug, 33 Mass. App. Ct. 746, 754 (1992), that the defenses and counterclaims described in G. L. c. 239, § 8A, are available to a tenant at sufferance." Lawrence v. Osuagwu, 57 Mass. App. Ct. 60, 63 n.4 (2003). See Hodge v. Klug, supra ("the statute would be defanged if a tenant at sufferance could not employ its machinery").
"no action to recover possession of the premises shall be brought, nor shall the tenant be dispossessed, until after the expiration of a period, equal to the interval between the days on which the rent reserved is payable or thirty days, whichever is longer, from the time when the tenant receives notice in writing of such termination."G. L. c. 186, § 13. See Mescall v. Somerset Sav. Bank, 305 Mass. 575, 577 (1940). Not only did the defendants give Peters insufficient notice with only seventy-two hours to vacate, they also improperly characterized her as a tenant at sufferance or a trespasser, claiming that they did not have to provide her with any notice before commencing action.
Even if Peters was a tenant at sufferance, such status does not render her a trespasser. See Benton v. Williams, 202 Mass. 189, 192 (1909) ("[tenant at sufferance] differs from a trespasser or disseisor only in that his entry upon the premises is not unlawful"). Further, a tenant at sufferance would be entitled to at least a reasonable notice to remove from the property. See Mescall v. Somerset Sav. Bank, 305 Mass. at 577.
b. "Fire, Other Casualty" provision. Next, the defendants argue, for the first time on appeal, that the lease relieved them of the obligation to repair or maintain the premises because it contained a "Fire, Other Casualty" provision. Where the defendants did not raise this argument below, it is deemed waived on appeal. See Mass. R. A. P. 16 (a) (9) (A), as amended, 481 Mass. 1629-1630 (2019). Regardless, "fire and other casualty" provisions are applicable to situations where a building is destroyed to the point where it "could not have been restored by ordinary repairs without unreasonable interruption of the lessees' use of it." Allen v. Kilpatrick, 277 Mass. 237, 240-241 (1931). Here, the judge found that the property was not unrepairable, which is supported by the board's report and testimony from the board's officer. See Burofsky v. Turner, 274 Mass. 574, 581-582 (1931) ("neither a mere want of repair, arising from lapse of time or improper use of the premises . . . was an unavoidable casualty rendering the premises unfit for use and habitation so as to entitle the defendant to terminate the tenancy under the express provisions of the lease" [citation and quotations omitted]). The defendants simply did not want to fix the property, and seek to use this provision to relieve them of their liability to do so. Giving the fire and casualty provision the meaning and effect urged by the defendants would violate G. L. c. 186, § 15. "Thus, the landlord is liable in negligence for defects of which he ha[d] notice . . . [and] cannot exculpate himself from liability for negligent maintenance of the rented premises." Young v. Garwacki, 380 Mass. 162, 171 (1980). See Massey v. Cloutier, 26 Mass. App. Ct. 1003, 1004 (1988).
c. Quiet enjoyment. The defendants argue that their unwillingness to make expensive repairs to the storm-damaged heat and hot water systems did not breach the covenant of quiet enjoyment. But the judge correctly ruled that the possibly substantial expense involved did not negate the defendants' obligation make repairs under the implied warranty of habitability. See Crowell v. McCaffrey, 377 Mass. 443, 451 (1979) (implied warranty of habitability requires landlord to do whatever is required to maintain premises in compliance with building and sanitary codes during term of tenancy). In turn, the defendants' failure to provide heat and hot water in the circumstances of this case constituted a breach of the covenant of quiet enjoyment and a constructive eviction. See Shindler v. Grove Hall Kosher Delicatessen & Lunch, Inc., 282 Mass. 32, 33-34 (1933). As the court clarified in Blackett v. Olanoff, 371 Mass. 714 (1977), a breach of the covenant of quiet enjoyment (and a resulting constructive eviction) does not require proof that the landlord intended to violate the tenant's rights; a breach may be premised on "the natural and probable consequence of what the landlord . . . failed to do," including failure to supply heat. Id. at 716. "The judge was warranted in ruling that the landlords had it within their control to correct the condition which caused the tenant[] to vacate . . . ." Id. Although the defendants are correct that they could not have prevented the storm from damaging the heat and hot water systems, and that correcting the lack of heat and hot water might well have been expensive, doing so was plainly "within [their] control." Id.
d. Negligent infliction of emotional distress. To prove negligent infliction of emotional distress, the plaintiff must show "(1) negligence; (2) emotional distress; (3) causation; (4) physical harm manifested by objective symptomatology; and (5) that a reasonable person would have suffered emotional distress under the circumstances of the case" (citation omitted). Sullivan v. Boston Gas Co., 414 Mass. 129, 132 (1993). It is well established in Massachusetts that negligent infliction of emotional distress claims are not compensable unless the plaintiff has suffered accompanying physical harm. Gutierrez v. Massachusetts Bay Transp. Auth., 437 Mass. 396, 412 (2002).
To the extent that the defendants raised a sufficiency of the evidence argument, they have waived this argument on appeal. It has long been held that a party's failure to preserve an issue as to the sufficiency of the evidence precludes appellate review of same. Because the defendants failed to file a motion pursuant to Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974), the argument is deemed waived. See Mark Bombara Interior Design v. Bowler, 446 Mass. 413, 418 (2006) (issue deemed waived where the record was silent as to whether sufficiency of evidence was challenged under Mass. R. Civ. P. 41 [b] [2]).
In any event, we conclude that there was sufficient evidence to support the judge's award for negligent infliction of emotional distress for both Peters and her daughter. First, given the communications presented at trial between Peters and Richard, and evidence concerning Richard's lack of effort to fully restore the property's heat and hot water, the judge's finding that the defendants were negligent was not clearly erroneous. See Young, 380 Mass. at 169, 170-171.
Peters also provided sufficient testimony to show that both she and her daughter suffered from emotional distress caused by the defendants. Expert testimony is not mandatory, Rodriguez v. Cambridge Hous. Auth., 443 Mass. 697, 702 (2005), but "plaintiffs must corroborate their mental distress claims with enough objective evidence of harm to convince a judge that their claims present a sufficient likelihood of genuineness to go to trial." Sullivan, 414 Mass. at 137-138. See Bresnahan v. McAuliffe, 47 Mass. App. Ct. 278, 285 (1999) ("the absence of medical evidence could make it more difficult, but not impossible, for a plaintiff to meet his burden"). Although the defendants argue that Peters's testimony alone is not enough objective evidence, Peters testified to sufficient objective evidence that was more than "mere upset, dismay, humiliation, grief and anger." Rodriguez, supra, quoting Sullivan, supra at 137. This included: Peters's difficulty sleeping from which she still suffered at the time of trial, her diminished relationship with her daughter, trouble with eating, her loss of friendships, and inability to stop thinking about the situation. See id. ("The length of time that plaintiffs experienced particular symptoms could be one reliable indicator of the sufficiency of their evidence"). The judge also found that she suffered periodic bouts of depression. See Sullivan, supra at 131. As to her daughter, Peters testified that her daughter was unable to go to school and other activities, and that she would tremble in her sleep. The judge also found that the daughter suffered periodic bouts of depression. This is sufficient corroborating evidence. See id. at 138 (judge uses discretion "to evaluate the evidence, keeping in mind that the over-all goal is to determine whether the evidence sufficiently corroborates the plaintiff's claim of mental distress and to strike a wise balance between the fear of fraudulent claims and the danger that worthy claims will not be heard").
The defendants agreed that Peters could testify at trial as to what she observed her daughter do. We agree with their contention that there is no testimony that Peters's daughter "wept uncontrollably," or that she woke up crying from her sleep saying she wanted to "go home," as found by the judge. The judge appears to have taken these findings from the plaintiff's amended complaint and although one could infer, based on Peters's testimony, that her daughter was crying, these findings are not directly supported by the evidence. See Springgate v. School Comm. of Mattapoisett, 11 Mass. App. Ct. 304, 309 (1981) ("A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed" [citation omitted]). Regardless, even setting aside this finding, the remainder of Peters's testimony regarding observations of her daughter support the finding that the daughter suffered from emotional distress.
The defendants also argue that even if there was emotional distress, they were not the cause of this distress. The evidence, however, established that their handling of the lack of heat and hot water, and forcing Peters to leave the premises, caused both her and her daughter their emotional distress. Peters testified that Richard telling her to get out, and lack of empathy for her and her daughter, was "heartbreaking" and discussed how she had trouble maintaining a "level of rapport" and that she struggled to keep her and her daughter warm, clothed, and fed. Thus, there was sufficient evidence of causation. See Ogden v. Aspinwall, 220 Mass. 100, 103 (1915) (plaintiff need only show that probable consequence of defendant's acts "was that harm of the same general character as that which came to the plaintiff would come to persons who stood in the same general relation to the defendant as the plaintiff").
e. Chapter 93A & attorney's fees. The defendants argue that their conduct was not deceptive, and that they were not the cause of the injury suffered here. An "act or practice may constitute unfair or deceptive conduct within the scope of G. L. c. 93A if it fails to comply with existing statutes, rules, regulations[,] or laws, meant for the protection of the public's health, safety, or welfare" (citation omitted). Trustees of the Cambridge Point Condominium Trust v. Cambridge Point, LLC, 478 Mass. 697, 707 (2018). We conclude that the conduct engaged in by the defendants, explained throughout this decision, certainly rises to the level of conduct that G. L. c. 93A is designed to protect against. They had notice of significant heat and hot water defects on the premises, yet the conditions continued for an extended period of time and were never fully remedied. See Cruz Mgt. Co. v. Thomas, 417 Mass. 782, 790 (1994); South Boston Elderly Residences, Inc., 91 Mass. App. Ct. at 470. The defendants were also deceptive in their improper seventy-two hour notice to vacate the premises. The argument that Peters's financial situation, rather than their conduct, was the cause of her injury is simply without merit. See Blackett, 371 at 716 ("the landlords had it within their control to correct the condition which caused the tenants to vacate their apartments"). Given these circumstances, it was not error for the judge to find a knowing and willful violation of G. L. c. 93A sufficient to treble damages. Compare Cruz Mgt. Co., supra at 790-791.
The defendants next argue that the judge's award of $9,000 in attorney's fees was excessive. "What constitutes a reasonable fee is a question that is committed to the sound discretion of the judge." Berman v. Linnane, 434 Mass. 301, 302-303 (2001). Several factors may be considered as part of this determination, including the "nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys . . . and the amount of awards in similar cases." Linthicum v. Archambault, 379 Mass. 381, 388-389 (1979). Here, the judge provided a detailed rationale in support of the award, applying the applicable "lodestar" method and explaining the factors mentioned above, the hourly rates of the attorney, the abilities of Peters's counsel, and the nature and complexity of Peters's claims. See Berman, supra at 303 ("a factor-by-factor analysis. . . is not required"). The judge was in the "best position to determine how much time was reasonably spent on a case, and the fair value of the attorney's services." Fontaine v. Ebtec Corp., 415 Mass. 309, 324 (1993). Given the nature of the present case, the fees awarded by the judge were reasonable.
Judgment affirmed.
By the Court (Desmond, Sacks & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 20, 2019.