Opinion
19-P-338
06-13-2022
MARSHA CIMINI v. RACHEL NICOLA.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 2 3.0
The plaintiff Marsha Cimini (landlord) appeals from a Housing Court judgment, after a jury-waived trial, awarding the defendant Rachel Nicola (tenant) damages for breach of the covenant of quiet enjoyment, violation of G. L. c. 93A, and breach of the implied warranty of habitability, as well as attorney's fees and costs. The landlord argues that (1) the judge improperly found that by taping an enlarged, handwritten version of the notice to quit to the tenant's front door, the landlord breached the covenant of quiet enjoyment, (2) the judge's findings of fact based on credibility determinations were erroneous, (3) the landlord was denied her right to a jury trial, and (4) the landlord was denied the right to obtain counsel through a court program for pro se litigants. We affirm.
Background.
The landlord owns a single-family home in Pittsfield. The tenant has lived there since February 1, 2017. The landlord terminated the tenancy by a December 30, 2017 no-fault termination notice, and then commenced this summary process matter. Also on December 30, the landlord taped an enlarged, poster-sized, handwritten version of the termination notice to the tenant's front door, where passersby could easily see it from the sidewalk. The tenant was not home at the time, and did not return home until the next day, when she took the poster-sized notice to the police to seek protection from further harassment.
The landlord filed a summary process summons and complaint on February 12, 2018. The tenant filed an answer and counterclaims, as relevant to this appeal, for breach of the covenant of quiet enjoyment, G. L. c. 186, § 14; unfair or deceptive business practices in violation of G. L. c. 93A; and violation of the implied warranty of habitability.
On March 14, 2018, after the deadline for the tenant to respond to the complaint, the landlord moved for a jury trial. But on the same day, the landlord signed a pretrial agreement informing the court that the case would require a "[three] hour bench [t]rial." As a result, the judge endorsed the landlord's motion for jury trial, "No action taken see agreement."
The case was tried jury-waived on July 11, 2018. The judge thereafter issued findings of fact, rulings of law, and an order for judgment, concluding that by taping the enlarged termination notice on the tenant's front door, the landlord breached the tenant's covenant of quiet enjoyment, G. L. c. 186, § 14, and committed an unfair or deceptive business practice, G. L. c. 93A, § 2, by violating the tenant's right to privacy, G. L. c. 214, § IB. The judge also concluded that the landlord breached the warranty of habitability by failing to repair the property, which had defects including loose back steps, wobbly basement steps and no lighting in the basement, a loose handrail, and exposed wiring; those defects had existed throughout the tenancy and had not been repaired by the time of trial. The landlord appeals.
The judge specifically declined to credit the landlord's testimony that the tenant or her guests had caused some of the conditions of disrepair and had prevented the landlord from making repairs.
Discussion.
On review of a judgment after a jury-waived trial, we accept the judge's findings of fact unless clearly erroneous, but review de novo his rulings on questions of law. See South Boston Elderly Residences, Inc. v. Moynahan, 91 Mass.App.Ct. 455, 462 (2017) .
1. Notice to quit.
The landlord argues that the judge erred in ruling that the landlord's taping the enlarged notice to quit on the front door of the tenant's home violated the tenant's covenant of quiet enjoyment, and violated G. L. c. 93A by impinging on the tenant's privacy rights.
In ruling that the landlord's taping the enlarged notice to the victim's front door violated the tenant's covenant of quiet enjoyment, the judge distinguished Kelly v. Jones, 80 Mass.App.Ct. 476, 479 (2011), where this court held that a landlord's discussing tenants' private business in church did not interfere with the tenants' quiet enjoyment of the premises, because it did not take place on or near the premises. Here, in contrast, the landlord taped the enlarged notice to the tenant's front door, where it could be seen by passersby and was seen by the neighbor across the street. We agree that the landlord's doing so violated the covenant of quiet enjoyment, which protects a tenant from "serious interference with [her] tenancy -- acts or omissions that impair the character and value of the leasehold" (quotation and citation omitted). Youghal, LLC v. Entwistle, 484 Mass. 1019, 1023 (2020).
In her reply brief, the landlord argues for the first time that the tenant's counterclaims did not provide her with notice that the enlarged notice was the basis of the breach of quiet enjoyment. "An argument raised for the first time in a reply brief is not properly before us, and we do not consider it here." Katz, Nannis & Solomon, P.C. v. Levine, 473 Mass. 784, 795 n.15 (2016). Moreover, the counterclaims did allege that the landlord breached the covenant of quiet enjoyment "by intimidating and harassing" the tenant.
The judge did not make any finding as to how long the enlarged notice was attached to the tenant's front door. The landlord argues that it was attached for "mere seconds" because the tenant's houseguest removed it. That is beside the point. The breach of quiet enjoyment was taping the poster-sized eviction notice to the tenant's door, where it could be seen by passersby, and was seen by the neighbor across the street and the houseguest. Similarly, the judge concluded that the landlord's taping the enlarged notice to the tenant's front door constituted an unfair or deceptive business practice by impinging on the tenant's statutory right to privacy, G. L. c. 214, § IB. Quoting from Levings v. Forbes & Wallace, Inc., 8 Mass.App.Ct. 498, 504 (1979), where this court held that "[t]he objectionable conduct must attain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce," the judge concluded that the landlord's conduct did so here. We agree. The landlord's conduct offended public policy by unreasonably disclosing the tenant's private information where there was no legitimate interest served by doing so. See Bratt v. International Business Machs. Corp., 392 Mass. 508, 521 (1984). Because the landlord could have conveyed the message contained in the notice to quit without enlarging it and posting it where it was visible from the sidewalk, her invasion of the tenant's privacy was unreasonable or unjustified, and resulted in a serious or substantial interference with the tenant's privacy. G. L. c. 214, § IB. Contrary to the landlord's argument, the possibility that the fact that she was seeking to evict the tenant might ultimately become a matter of public record in the Housing Court did not amount to justification for posting the oversized notice on the front door of the tenant's home.
2. Judge's findings of fact on issues of credibility.
The landlord raises various claims about the judge's findings of fact, and we dispose of most of those claims by noting that we accept the judge's findings unless clearly erroneous, which they were not. See South Boston Elderly Residences, Inc., 91 Mass.App.Ct. at 462. In particular, the landlord contests the judge's findings that the oversized notice was on the front door of the tenant's home and could be seen from the sidewalk, maintaining that it was posted on an "inside" door "away from the world[']s view and any passerby." The judge heard testimony of the neighbor across the street that he saw the landlord taping the enlarged handwritten version of the eviction notice to the tenant's doorway. The judge also viewed a photograph of the poster-sized notice on the door, which was admitted as an exhibit. Based on that evidence, the judge's findings were not clearly erroneous, and so we do not disturb them.
For the first time on appeal, the landlord argues that the judge abused his discretion by not ruling on the validity of the lease. Without citation to the record, the landlord argues that the tenant had alleged that the lease was "forged." Because the landlord did not raise this argument in the Housing Court or cite to any part of the record to support it, we decline to reach it. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) ("issue not raised or argued below may not be argued for the first time on appeal" [citation omitted]). Moreover, the trial record shows that the judge properly adjudicated the landlord's claim for possession, the tenant's counterclaims, and the landlord's defense to those counterclaims.
3. Jury demand.
The landlord argues that she was denied her right to a jury trial. The landlord did not request a jury trial in her complaint. Nearly one month after the tenant filed her answer and counterclaims, the landlord moved for a jury trial. That motion was untimely. See Adj artey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 857 (2019) ("If a party wishes to have the matter heard by a jury, he or she must file a demand for a jury trial no later than the due date for the defendant's answer").
In any event, as mentioned above, on the same day as the landlord filed her motion for a jury trial, she signed the joint agreement informing the court that the case would entail a three-hour bench trial, and so the judge declined to rule on the landlord's motion. When trial began, the landlord did not protest the absence of a jury. Contrast Cort v. Majors, 92 Mass.App.Ct. 151, 154 (2017). In those circumstances, the landlord waived her right to a jury trial. See CMJ Mgt. Co. v. Wilkerson, 91 Mass.App.Ct. 276, 282 (2017) .
4. Lawyer for a day program.
The landlord argues that she had the right to receive the advice of counsel under the Housing Court's "Lawyer for a Day Program" (LDP) . Housing Court Standing Order 1-01 establishes the LDP, pursuant to which pro bono attorneys "provide limited legal advice to pro se litigants in the Housing Court on a first-come, first-served basis." The LDP is a service provided by volunteer attorneys on a limited basis, and the landlord cites no authority for the proposition that she had a right to counsel in this case. Moreover, contrary to her assertion, she did receive LDP services from an attorney and has not demonstrated that she was entitled to further LDP services.
5. Costs and attorney's fees.
The tenant has requested attorney's fees and double costs, and we agree that she is entitled to them. See Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019); Symmons v. O'Keeffe, 419 Mass. 288, 303 (1995) (double costs and attorney's fees appropriate under rule 25 if party pressed frivolous appeal). See also Yorke Mgt. v. Castro, 406 Mass. 17, 20 (1989) (tenant awarded appellate attorney's fees under G. L. c. 186 and c. 93A). Accordingly, pursuant to the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the tenant may file an application for appellate attorney's fees and costs within fourteen days of the issuance of the rescript, after which the landlord shall have fourteen days within which to respond.
Judgment affirmed.
The panelists are listed in order of seniority.