Opinion
21-P-32
03-31-2022
Bud SHATTUCK v. Sean P. DONOVAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a judgment which entered after a trial de novo before a judge of the Housing Court. The trial judge awarded the plaintiff $450, which represented the last month rent for an apartment the parties briefly shared, and also found that the plaintiff did not owe the defendant any unpaid amount for utilities. The defendant appeals both aspects of the judgment. We affirm.
Judgment entered for $497.97, based on the addition of statutorily required interest of $47.97 to the $450 awarded by the judge.
On appeal, the defendant essentially reargues his view of the evidence as though this appeal is a de novo revisitation of the case. But it is not. Instead, once there has been a trial, as there has been here, we accept the judge's findings of fact "unless they are clearly erroneous, bearing in mind the deference that must be given to the trial judge's opportunity to weigh the credibility of the witnesses." Jablonski v. Casey, 64 Mass. App. Ct. 744, 747 (2005). A finding of fact is clearly erroneous only where there is "no evidence to support it" or "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed" (citation omitted). South Boston Elderly Residences, Inc. v. Moynahan, 91 Mass. App. Ct. 455, 464 (2017).
The defendant argues the many reasons why, in his view, the testimony of the plaintiff should not have been credited, such as inconsistencies in the plaintiff's testimony, and the plaintiff's history as an undesirable tenant. But "[c]redibility determinations ... lie exclusively within the province of the fact finder ... who is free to believe one witness and disbelieve another." Okoli v. Okoli, 81 Mass. App. Ct. 371, 379 (2012), quoting Palmer v. Murphy, 42 Mass. App. Ct. 334, 343 (1997).
The evidence permitted the judge to find the following. The defendant rented a four-bedroom apartment from a third party landlord. Because the apartment was both too big and too expensive for the defendant's purposes, he advertised for housemates to sublet individual bedrooms. The plaintiff responded to the defendant's solicitation and, on October 31, 2019, the parties entered into a written housemates agreement. Among other things, the agreement provided that the defendant would rent one bedroom of the apartment to the plaintiff for a monthly rent of $450, plus "a shared portion of the utilities electric and natural gas." Before the plaintiff moved into the apartment on November 1, 2019, he paid -- and the defendant gave written receipt for -- $450 for the November rent (first month rent) and an additional $450 for the last month rent. Later, the plaintiff also paid the December rent, and the defendant again gave a written receipt for that $450 payment.
The trial judge issued oral findings on the record at the conclusion of the trial. The trial in this case was conducted by Zoom video conference, and the record of the trial has been transmitted to us in the form of an audio recording.
The agreement required the plaintiff to give thirty days’ notice should he wish to vacate the premises, and similarly required the defendant to give the plaintiff thirty days’ notice to quit.
At some point, after he had difficulty subletting all four bedrooms, the defendant decided to terminate his lease with the landlord. The landlord accepted the defendant's notice to quit, subject to the defendant succeeding in getting all subtenants out by December 31, 2019. The plaintiff did not vacate until January 2, 2020 (i.e., two days after the deadline). The defendant refused to return the plaintiff's $450 last month rent payment.
On this evidence, the defendant has failed to show any error in the judge's award of $450 (representing the unreturned last month rent) to the plaintiff.
As to the utilities, the parties gave conflicting testimony whether the plaintiff was to be responsible for one-quarter of the utilities because he rented only one of the four bedrooms (as the plaintiff claimed), or whether the plaintiff's portion would be calculated based on the number of bedrooms actually occupied (as the defendant claimed). In November, it appears that all four bedrooms were rented, and so the practical effect of this disagreement is not evident. But in December, two of the bedrooms were empty and so, in the defendant's view, the plaintiff was required to pay one-half of the utilities. There is no dispute that the plaintiff did not pay one-half of the December utilities. However, there was conflicting testimony whether he paid one-quarter; the plaintiff testified that he paid his portion of the utilities in cash to the defendant. On appeal, as long as the evidence permitted the trial judge to resolve the conflict in favor of the plaintiff (which it did in this case), then we accept the judge's implicit resolution of the conflict in favor of the plaintiff.
The defendant also argues that he was not permitted to press his counterclaim for the unpaid portion of the utilities. But it is clear from the record of the trial that the judge fully considered the defendant's claim even though it was not asserted as a formal counterclaim.
Finally, the defendant argues that the housemates agreement was a contract, not a lease, and therefore was voidable because the plaintiff breached it. Even accepting this legal view of the agreement, the evidence did not require a finding of material breach. See Coviello v. Richardson, 76 Mass. App. Ct. 603, 609 (2010) (whether material breach occurred is question of fact). Although it is true the plaintiff did not vacate the premises until two days after the end of December, the evidence was that the landlord did not penalize the defendant for the holdover, and in fact returned the defendant's security deposit.
For these reasons, the judgment entered November 25, 2020, is affirmed.
So ordered.
Affirmed