Opinion
13-P-1323
03-23-2015
LEON KACHADORIAN v. MICHAEL LARSON.
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 plaintiff landlord, Leon Kachadorian (landlord), appeals from a Housing Court judgment for possession in favor of the defendant tenant, Michael Larson, as well as the award of $27,760 in damages for the tenant. The primary issue in this appeal concerns the judge's award of $10,000 in compensatory damages to Larson and the judge's decision to treble that amount for the landlord's wilful and knowing violation of G. L. c. 93A. We affirm the award of $10,000 in compensatory damages for the violation of State and Federal fair housing laws, G. L. c. 151B, § 4(7B), and 42 U.S.C. § 3604(c) (2012). However, because we conclude, on this record, that there was not a G. L. c. 93A violation, we vacate the trebling of the damages under G. L. c. 93A.
General Laws c. 151B, § 4(7B), inserted by St. 1989, c. 722, § 18, forbids:
"[A]ny person to make[,] print, or publish, or cause to be made, printed, or published any notice, statement or advertisement, with respect to the sale or rental of multiple dwelling . . . housing accommodations that indicates any preference, limitation, or discrimination based on . . . handicap or an intention to make any such preference, limitation or discrimination except where otherwise legally permitted."
42 U.S.C. § 3604(c) provides, in relevant part:
"[I]t shall be unlawful . . . to make, print, or publish . . . any . . . statement . . . with respect to the . . . rental of a dwelling that indicates any preference, limitation, or discrimination based on . . . handicap . . . or an intention to make any such preference, limitation, or discrimination."
1. Factual and procedural background. The following is a summary of the trial evidence. Larson, who had a history of late rental payments, paid only $400 of the $800 rent due on February 1, 2013. The landlord sent a legally sufficient notice to quit for nonpayment of rent, and when the balance remained unpaid, he commenced the summary process action on February 20, 2013. Larson asserted an affirmative defense for breach of the implied warranty of habitability and a counterclaim for violation of State and Federal fair housing laws. As to the affirmative defense of breach of the warranty of habitability, the Housing Court judge found that the landlord knew of a mice infestation in August, 2012, prior to Larson's breach for nonpayment. The judge further found that the breach of warranty reduced the fair rental value of the unit by ten percent, to $720 per month, setting the arrears owed by Larson, who had not paid rent since the partial February, 2013, payment, at $2,240.
As to Larson's counterclaim, the judge found that at the inception of the tenancy, the landlord did not know that Larson was HIV positive and that he discovered this fact when he saw Larson's case manager emerge from an AIDS Project Worcester (APW) office in October, 2012. The landlord then immediately drove to Larson's apartment and angrily confronted him, asking if he had AIDS, expressing regret that he had ever signed verification documents with APW for Larson, and telling Larson that he wanted Larson to move. The landlord made similar statements to Larson in a confrontation on February 27, 2013, while the summary process action was proceeding, in front of a friend of Larson's, and refused Larson's and APW's tender of payment for the arrears at that time.
It is not disputed in this appeal that the landlord violated G. L. c. 151B, § 4(7B), and 42 U.S.C. § 3604(c).
The Housing Court judge's findings of violation of the State and Federal fair housing laws, and the award of compensatory damages of $10,000, as well as the G. L. c. 93A trebling of damages, were based on the landlord's confrontational encounter and statements vilifying Larson as HIV positive, refusing to accept the tendered rent payment because Larson was HIV positive, and pursuit of eviction of Larson.
The judge then entered judgment for Larson in the amount of $27,760, representing the $30,000 award minus the $2,240 due to the landlord in rent, reduced for the breach of habitability finding.
"When reviewing the trial judge's decision, we accept his findings of fact as true unless they are clearly erroneous, and we give due regard to the judge's assessment of the witnesses' credibility." Andover Hous. Authy. v. Shkolnik, 443 Mass. 300, 306 (2005). See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). "On the other hand, to ensure that the ultimate findings and conclusions are consistent with the law, we scrutinize without deference the legal standard which the judge applied to the facts." Kendall v. Selvaggio, 413 Mass. 619, 621 (1992).
2. Compensatory damages. On appeal, the landlord argues that the $10,000 award of compensatory damages to Larson cannot stand because the judge stated that Larson was not entitled to monetary damages for emotional distress. We disagree, and conclude that emotional distress damages are supportable in this case -- even absent proof of an actual injury separate from the emotional distress component.
At the outset, it is clear that the landlord violated State and Federal fair housing laws, because the landlord's statements, coupled with his refusal to accept the rent payments from APW, indicated a discriminatory preference on the basis of handicap. See 42 U.S.C. § 3604(c); G. L. c. 151B, § 4(7B). See also Sy v. Massachusetts Commn. Against Discrimination, 79 Mass. App. Ct. 760, 766 n.9 (2011).
Second, given the landlord's actions and the resultant effects on Larson, compensatory damages for emotional distress were warranted. Boston Pub. Health Commn. v. Massachusetts Commn. Against Discrimination, 67 Mass. App. Ct. 404, 410 (2006). Such damages have been awarded in fair housing cases. Cf. Massachusetts Commn. Against Discrimination v. Franzaroli, 357 Mass. 112, 115-116 (1970) (commission's award of emotional distress damages upheld in housing discrimination case). Our analysis must be guided, moreover, by the legislative directive that "[t]his chapter shall be construed liberally for the accomplishment of its purposes." G. L. c. 151B, § 9, as amended by St. 2002, c. 223, § 2.
Third, the standards for the award of compensatory damages were established in this case. The emotional stress caused by the landlord's actions manifested in physical symptoms. Larson lost sleep for a period of two weeks and experienced vomiting and tightness in his chest. Larson also experienced "panic attacks," including when approaching the steps of his apartment, and "his nerves were constantly shot." He suffered from depression and anxiety and was prescribed medications to treat these symptoms. Larson testified that while his home had once been a "sanctuary," and a "place of peace," the landlord's discriminatory conduct changed that -- Larson's home was "no longer a place of peace or any type of solitude."
"Emotional distress damage awards, when made, should be fair and reasonable, and proportionate to the distress suffered." Stonehill College v. Massachusetts Commn. Against Discrimination, 441 Mass. 549, 576 (2004) (concerning emotional distress damages arising out of violations of G. L. c. 151B). Factors to be considered include: "(1) the nature and character of the alleged harm; (2) the severity of the harm; (3) the length of time the complainant has suffered and reasonably expects to suffer; and (4) whether the complainant has attempted to mitigate the harm." Ibid. The $10,000 in compensatory damages in this case falls within these parameters.
We acknowledge that the Housing Court judge did not base the award of monetary damages on emotional distress. However, as discussed above, the trial evidence supports such an award. We can affirm the damages award, so long as warranted, on a basis other than that articulated by the judge. See Vaughan v. Eastern Edison Co., 48 Mass. App. Ct. 225, 226 (1999).
4. Multiple damages under G. L. c. 93A. The landlord further argues that the damages were not properly subject to trebling under G. L. c. 93A. We agree with the landlord on this point. The Housing Court judge observed only that the landlord's discriminatory conduct, refusal to accept rent, and pursuit of eviction of Larson "clearly indicate a discriminatory preference in violation of state and federal law." The judge seemingly found that, because there had been a violation of G. L. c. 151B, § 4(7B), there had also been a violation of G. L. c. 93A. The judge then concluded that because the "plaintiff's discriminatory conduct was intentional and willful," Larson was entitled to treble damages under G. L. c. 93A. That is incorrect. Such a violation does not constitute an automatic violation of G. L. c. 93A. Cf. Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 174-175 (2013). See also McDermott v. Marcus, Errico, Emmer & Brooks, P.C., 775 F.3d 109 (1st Cir. 2014). We see no tenable basis in the record, and the judge made no finding to the effect, that the complained-of conduct was "unfair or deceptive" within the meaning of G. L. c. 93A. Therefore, because we conclude that there was insufficient evidence to demonstrate a violation of G. L. c. 93A, we vacate the trebling of the damages under G. L. c. 93A.
Given our determination that the record provides insufficient evidence to support a violation of G. L. c. 93A, we need not go any further in determining whether, in law or in the abstract, the particular facts at issue in this case could in theory give rise to a violation of G. L. c. 93A.
5. Conclusion. Accordingly, Larson's damages, when recalculated, result in a reduction of the award from $27,760 ($30,000, minus $2,240 due to the landlord in rent, reduced for the breach of habitability finding) to $7,760 ($10,000, minus $2,240 due to the landlord in rent, reduced for the breach of habitability finding). The present judgment therefore is to be modified to provide for an award to Larson of $7,760. Based on this calculation, Larson is entitled to possession of the apartment. See G. L. c. 239, § 8A, as amended through St. 1981, c. 133 ("There shall be no recovery of possession under this chapter if the amount found by the court to be due the landlord equals or is less than the amount found to be due the tenant or occupant by reason of any counterclaim or defense under this section"). The judgement, as so modified, is affirmed.
So ordered.
By the Court (Rapoza, CJ. Brown & Berry, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: March 23, 2015.