Opinion
16-P-1627
07-17-2017
PEABODY PROPERTIES, INC. v. Muqeedah SALAAM.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Muqeedah Salaam (tenant), appeals from a judgment, after a summary process trial in the Housing Court, awarding possession and unpaid rent to the plaintiff, Peabody Properties, Inc. (landlord). The tenant also appeals from an order of the trial judge dismissing her appeal of the judgment and from orders denying her motions for relief from the judgment. We vacate the order dismissing the appeal and affirm the judgment and the orders denying the motions for relief from judgment.
Background. On October 22, 2015, the landlord and tenant entered into a residential lease agreement for an apartment unit in the Dorchester section of Boston. After paying her share of the rent in November and December, the tenant provided the landlord with written notice that she intended to withhold her rent beginning in January, 2016, for defective conditions in the apartment. On March 16, 2016, the landlord served the tenant with a notice to quit for nonpayment of rent, and on April 4, 2016, with a summary process summons and complaint. In her answer, the tenant denied that she owed rent and asserted several defenses and counterclaims, including a defense under G. L. c. 239, § 8A, based on the conditions of the apartment.
The tenant's rent is subsidized under the Section 8 program. See 42 U.S.C. §§ 1437 et seq. (2012). The monthly contract rent for the apartment is $1,346; the tenant's monthly obligation is $244.
A jury-waived trial was held on June 21, 2016, with the tenant representing herself. The judge treated the tenant with respect and exercised the utmost patience during the trial. In his written findings of fact, rulings of law, and order of judgment dated June 22, 2016, the judge found that the tenant owed the landlord $1,464 in unpaid rent through the date of the trial and that she had no basis to withhold her rent:
"There is no evidence to support the [tenant's] contention that at any time during her tenancy the paint in her apartment was peeling or chipped. There is no evidence that the walls or ceilings were in poor condition. There is no evidence to support the [tenant's] contention that the carpet in her apartment was frayed or emitted an odor from cigarette smoke."
The judge also found that "an inspector from the [Boston Housing Authority] inspected the [tenant's] apartment on October 20, 2105, two days before the [tenant] signed the lease." The inspector "found that the apartment met the HUD standards and was habitable," and "did not identify any problem with the walls or the carpet." The tenant "never made a complaint to the City of Boston Inspectional Services Department (‘ISD’) and ISD never inspected her apartment during her tenancy." The judge concluded that the landlord "neither knew nor should have known of any condition in the [tenant's] apartment that required repair during the period October 22, 2015 to June 21, 2016."
The judge also rejected, for lack of credible evidence, the tenant's various counterclaims of discrimination, retaliation, and unfair or deceptive acts or practices. He concluded, "The clear and convincing evidence presented at trial establishes that the sole reason the [landlord] terminated the [tenant's] tenancy was because she had failed to pay any rent since January 2016."
The tenant timely filed a notice of appeal from the judgment and a motion to waive the appeal bond under G. L. c. 239, § 5(e ). In an order dated July 15, 2016, the judge denied the motion to waive the appeal bond and set the bond at $1,708, to be paid by July 26, 2016. The bond order was entered and mailed to the tenant on July 18. Claiming that she never received the order and did not learn about it until it was discussed at a posttrial hearing on July 28, the tenant on that date filed a request for appellate review of the bond order together with a motion to deem her request for review as timely. On July 29, the Housing Court judge denied the motion and dismissed her appeal for failure to pay the bond.
The tenant timely filed a notice of appeal from the dismissal of her appeal, from the denial of her motion to deem her request for review as timely, and from the denial of her first motion for relief from judgment under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). The tenant later filed a second rule 60(b) motion, which was denied, and a timely notice of appeal therefrom.
A single justice of this court, while declining to decide whether the request for review of the bond order was timely, stayed execution of the judgment pending appeal. On the landlord's motion for reconsideration, the single justice ordered the tenant to make monthly use and occupancy payments of $244 while the appeal was pending. These orders effectively allowed the tenant to proceed on appeal without posting bond.
Discussion. 1. Dismissal of the appeal. The trial judge dismissed the appeal because the tenant failed to post bond or to file a request for review of the denial of her motion to waive the bond on or before July 26, 2016, the date specified in the judge's bond order dated July 15, 2016. Under the pertinent provision of G. L. c. 239, § 5(g ), as appearing in St. 2004, c. 252, § 19, the tenant was required either to post the bond or to request review "within 6 days after receiving notice of the decision of the court on the motion to waive bond" (emphasis supplied). The tenant argues that her July 28 request for review was timely because she did not receive notice of the judge's decision until that date. In the alternative, she argues her time to seek review did not lapse until July 29: starting from July 18, the mailing date; excluding weekends in counting the six days prescribed by the statute, see Mass.R.Civ.P. 6(a), 365 Mass. 747 (1974); and allowing three more days for "service" by mail, cf. Mass.R.Civ.P. 6(d).
On the record before us, we are unable to determine the factual issue of when the tenant actually received notice of the bond decision or whether her request for review was timely. In any event, the single justice effectively ruled in her favor, permitting this appeal to proceed without the filing of a bond and allowing the tenant to use and occupy the premises pending appeal. Because both parties fully have briefed the issues and in the interest of judicial economy, we will assume the appeal should not have been dismissed. We therefore proceed to the merits of the tenant's claims regarding the summary process judgment and her motions for relief from the judgment.
At oral argument, the tenant's counsel stated that she "wouldn't be opposed" to having the panel decide the merits of the appeal.
2. Summary process judgment. The tenant argues that the judge's findings concerning the conditions existing in her apartment "are belied by trial testimony" and the judgment therefore cannot stand. We disagree.
The trial judge, who had a "firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence." New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977). "[W]e do not ‘review questions of fact found by the judge, where such findings are supported on any reasonable view of the evidence, including all rational inferences of which it was susceptible.’ " Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997), quoting from T.L. Edwards, Inc. v. Fields, 371 Mass. 895, 896 (1976). "So long as the judge's account is plausible in light of the entire record, an appellate court should decline to reverse it." Ibid.
The evidence at trial adequately supported the judge's findings and legal conclusions. The tenant's witness, Frederic Williams, testified that on October 22, 2015, he observed that the carpet was "tattered" and that the apartment had not been painted. The tenant herself provided similar testimony, but no photographic or other extrinsic evidence of her claims. Moreover, the Boston Housing Authority inspected the apartment on October 20, 2015, and the inspector found no defects in the apartment. The judge was not obligated to credit the tenant's or Williams's testimony to the contrary. See Demoulas, supra, quoting from Gallagher v. Taylor, 26 Mass. App. Ct. 876, 881 (1989) ( "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous"). The tenant's claim that the judge disregarded certain evidence boils down to a "disagreement with the judge's credibility assessments" which does not provide grounds to disturb the judgment. Gaw v. Sappett, 62 Mass. App. Ct. 405, 409 (2004).
3. Motions for relief from judgment. In her first motion for relief from judgment, Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), the tenant provided a June 29, 2016, ISD report finding that the conditions in her apartment violated certain provisions of the State sanitary code. Specifically, the report noted that the "[c]arpet throughout [the] unit is frayed, separating at [the] seams, and coming up," and that the "[p]aint at [the] wall and ceiling juncture has cracks." The tenant claims that the ISD report constitutes "newly discovered evidence" requiring a new trial. See Mass.R.Civ.P. 60(b)(2). The judge denied the motion.
Evidence is considered "newly discovered" in the context of a rule 60(b)(2) motion only if it was "unknown and unavailable at the time of trial despite the diligence of the moving party." Wojcicki v. Caragher, 447 Mass. 200, 213 (2006), quoting from Leavitt v. Mizner, 404 Mass. 81, 89 (1989). Here, the judge acted within his discretion to deny the tenant's motion. The tenant made no showing that the information in the ISD report was unavailable to her at the time of trial. Indeed, she testified at trial that she did not call the ISD to request an inspection at any time during her tenancy. Furthermore, the judge could have reasonably concluded that an ISD report from June 29 was not highly probative of the conditions that existed in the tenant's apartment six months earlier when she decided to withhold rent. "[A]ccord[ing] great deference to a trial judge's extensive discretion when denying a motion under rule 60(b)," Gaw, supra at 408 n.5, we discern no error.
The tenant also appeals from the denial of her second rule 60(b) motion, in which she argued that instead of awarding the landlord possession, the judge should have exercised his equitable discretion to allow her to pay back rent to the landlord and remain in possession. "We examine the judge's imposition of equitable remedies under an abuse of discretion standard." Demoulas v. Demoulas, 428 Mass. 555, 589 (1998). While we recognize that "equity does not favor forfeiture of leases," Nautican Realty Co. v. Nantucket Shipyard, Inc., 28 Mass. App. Ct. 902, 904 (1989), the judge did not abuse his discretion by declining to frame an equitable remedy in the circumstances of this case. Neither of the grounds raised by the tenant entitle her to relief under rule 60(b).
The tenant was not entitled to possession as a matter of law. Under G. L. c. 239, § 8A, a tenant may retain possession only if "the tenant prevails on a counterclaim or defense brought ‘under this section.’ " Meikle v. Nurse, 474 Mass. 207, 211 (2016), quoting from G. L. c. 239, § 8A. The tenant did not satisfy this requirement.
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Order dismissing appeal vacated.
Judgment affirmed.
Orders denying motions for relief from judgment affirmed.