Opinion
11-P-391
03-12-2012
NORTH VILLAGE AT WEBSTER v. NICOLE BRAMAN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this jury waived summary process action, a judge of the Worcester Housing Court found against the landlord, North Village at Webster, and awarded the tenant, Nicole Braman, possession as well as $15,100 on her counterclaims. After considering the landlord's six claims of error, we affirm the judgment.
The judge found in favor of Braman on counterclaims for retaliation; breach of the implied warranty of habitability; violation of G. L. c. 93A; and interference with Braman's statutory right to quiet enjoyment.
1. The judge's factual findings. The landlord's various challenges to the factual findings lack merit. The finding that there was mold in the apartment is not clearly erroneous. See Jablonski v. Casey, 64 Mass. App. Ct. 744, 747 (2005). Although Braman failed to offer expert evidence regarding the presence of mold in her unit, the judge could permissibly infer that mold was present without need of expert testimony. According to Braman, each time her apartment flooded, black spots would subsequently appear on the top of the living room carpet. Braman would shampoo up the spots. After the next flooding, the spots would reappear in the same time frame, with the cycle repeating itself several times per year. Braman corroborated her testimony with color photographs showing water lines and a black substance on the carpet.
While not permitting Braman to call the substance 'mold,' the judge permitted Braman to testify fully about the water infiltration and the unwanted substances that followed. Moreover, the finding concerning a mold problem was not limited to the carpet. Braman also provided photographic evidence of black and white substances in the two bathrooms. The landlord admittedly had knowledge of mold in one of the bathrooms and was ordered to remove it by the board of health.
Even were we to deem Braman's testimony alone inadequate, testimony from the landlord's witnesses describing their observations of mold problems in the unit and their remedial efforts provides a sufficient basis to support the finding. The landlord's argument that the judge erred by finding that 'the mold affected the health of the children' fails for the simple reason that the judge made no such finding and rejected Braman's personal injury counterclaim.
The judge found as a subsidiary fact that 'the Board of Health determined that [Braman]'s carpet was filled with mold.' To the extent that the landlord claims error in the admission of the board's records, it has failed to assist us with citation to legal authority supporting the argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). The challenge is deemed waived. In any event, where the finding of the presence of mold is independently supported, as here, we discern no prejudice in admission of the records.
2. Retaliation. The judge found violations of G. L. c. 239, § 2A, and c. 186, § 18, which provide tenants with rebuttable evidentiary presumptions of retaliation in certain circumstances. The judge did not err in applying the evidentiary presumption that the landlord retaliated against Braman for exercising her rights under the housing laws. Braman engaged in protected activities (reporting violations to the board and withholding rent) before the landlord attempted to evict her for nonpayment of rent. The landlord served a notice to quit on June 10, 2010, less than two months after the board of health ordered the landlord to fix the problems reported by Braman, and one month after Braman began withholding rent. There was no evidence of any prior late payments or nonpayment of rent by Braman. Deborah Turner, the site manager who signed the notice to quit on behalf of the landlord, provided no reason for the landlord's eviction action. See Jablonski v. Clemons, 60 Mass. App. Ct. 473, 476-477 (2004). Even were the presumption inapplicable, the finding of retailiation would stand. As the judge found, the landlord introduced no evidence on the issue of retaliation.
3. Breach of warranty. The finding that the landlord's failure to remedy the water and mold problems 'in a timely fashion, and after repeated events' constitutes a breach of the implied warranty of habitability is not clearly erroneous. See Jablonski v. Casey, 64 Mass. App. Ct. at 746-747. The Hemingway factors support the judge's implicit finding of materiality. See Boston Hous. Authy. v. Hemingway, 363 Mass. 184, 200-201 (1973). Braman and her four children lived in an apartment with a hole in the living room wall and a wet or damp carpet for substantial periods of the tenancy. It was undisputed that the landlord knew about the repeated water infiltration and that regular and significant flooding of the living room was an unwelcome feature of the tenancy. There was no competent evidence that Braman was responsible for any of the water infiltration. The judge was warranted in finding that this repeated flooding of the main living area was a significant defect in the premises for which liability could be imposed. See Simon v. Solomon, 385 Mass. 91, 95-96 (1982); McAllister v. Boston Hous. Authy., 429 Mass. 300, 305 (1999). Braman's refusal to accept the landlord's offer of substitute housing in May, 2010, does not vitiate her warranty claim. The judge as fact finder was warranted in concluding that the offer of a unit in a troubled building to Braman, a recovering addict, was not an appropriate alternative.
The landlord's argument that the 'three or four' flooding incidents were dealt with 'in a timely manner' relies on facts that are contrary to the judge's express subsidiary findings, which have record support. It took the landlord eighteen months to fix the hole in the living room wall that allowed moisture to seep into the apartment. As for the second source of outside water, the landlord's unlicensed maintenance man performed at least two unsuccessful repairs on the pipe underneath the stairs in Braman's apartment. That leak was finally repaired by a licensed plumber in a matter of a few hours on March 30, 2010. On another occasion, a leaky pipe in an outside laundry room caused flooding in Braman's unit. The unlicensed maintenance man repaired that pipe. While there were three causes of water infiltration, the two that were not adequately addressed resulted in multiple flooding incidents. Thus, each was not from a different problem, as the landlord contended.
Indeed, even the landlord's maintenance man admitted that the possibility of water damage caused by Braman leaving her living room window open was speculative.
--------
4. G. L. c. 93A. The judge did not abuse her discretion in awarding double damages based on what could properly be found a wilful or knowing disregard of the problems in Braman's unit. See Cruz Mgmt. Co. v. Thomas, 417 Mass. 782, 790-791 (1994). Contrary to the landlord's assertions, its response to Braman's complaints was not always swift. The landlord offered no explanation for why it took two months to respond to Braman's October, 2008, complaint and then another three months to finally fix the hole in the wall first noted in September, 2007. When the landlord did respond quickly, instead of seeking and implementing a lasting solution to serious problems, it did the bare minimum (putting a blower on the wet carpet and using an unlicensed maintenance man to perform plumbing work), even as Braman's complaints about the recurring water and mold accumulated. Despite its awareness of the children's respiratory problems, the landlord failed to replace the visibly stained living room carpet at any time.
5. Quiet enjoyment. We have considered and reject the landlord's argument, which ignores the judge's key subsidiary finding and is predicated in part upon unsupported facts.
Judgment affirmed.
By the Court (Grasso, Fecteau & Sullivan, JJ.),