Opinion
No. 11–P–1809.
2012-10-1
Janette BRICENO–FARRIER v. Nzenwa Augustine CHIMA.
By the Court (CYPHER, BERRY & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a summary process action for nonpayment of rent, a Housing Court judge issued an execution in favor of the plaintiff-landlord (landlord) for possession of a residential rental property and associated damages. The landlord then brought a civil action seeking to recover expenses incurred in levying on the execution. After a bench trial, the trial judge ordered the defendant-tenant (tenant) to pay the landlord the following damages: $950 for the constable's fee associated with the levy on the execution for possession; $400 dollars for the reasonable cost of cleanup and trash removal; and $504.77 for the reasonable cost of labor and materials for replacing two damaged doors.
On appeal, the tenant challenges the trial judge's finding that the tenant failed to timely surrender possession of the property and asserts that the levy on the execution for the property was therefore not a necessary expense for the landlord. The trial evidence on this issue was limited to the following: the tenant claimed he left a key in the mailbox, thereby surrendering possession of the property; the landlord claimed there was no key. The trial judge credited the landlord's testimony and ordered the tenant to cover the cost of the constable's services. “To prevail on appeal on the basis of an assault on a judge's factual findings is no easy matter, for we accept the judge's findings of fact as true unless they are ‘clearly erroneous.’ “ Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636 (2010), quoting from Kendall v. Selvaggio, 413 Mass. 619, 620 (1992).
“It is the appellant's burden to show that a finding of fact is clearly erroneous. It is not sufficient to challenge the judge's findings by reciting other evidence in the record that [he] may not have credited.” Millennium Equity Holdings, supra at 637 (citations omitted).
See also Mass.R.Civ.P. 52, as amended, 423 Mass. 1408 (1996) (“In all actions tried upon the facts without a jury ... [f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses”).
On appeal, the tenant has simply recounted his version of facts—namely, that he left the key in the mailbox prior to the date of the levy on the execution. The tenant has not met his burden of demonstrating clear error.
Next, the tenant disputes the trial judge's finding that the tenant failed to remove trash and debris from the property, and that this failure required the landlord to incur cleanup costs. Once again, the trial evidence boiled down to a simple credibility contest. The tenant claimed that he removed all trash and placed it outside the building. The landlord claimed that the interior of the apartment was strewn with trash bags and debris. After considering both accounts, the trial judge credited the landlord's version. Again, we see no clear error. The judgment is affirmed.
The landlord requests double costs, attorney's fees, and interest on the outstanding judgment. We allow double costs pursuant to G.L. c. 211A, § 15, and Mass.R.A.P. 26, as amended, 378 Mass. 925 (1979). The request for interest on the outstanding judgment is denied. As for attorney's fees, we grant the landlord leave to file a petition within fourteen days of the rescript in accordance with Fabre v. Walton, 441 Mass. 9, 10–11 (2004). The tenant shall file a response to the petition within fourteen days thereafter.
So ordered.