Opinion
No. 12–P–808.
2013-03-18
Geraldine SMITH v. Jose FERREIRA.
By the Court (GRAINGER, MEADE & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Landlord Jose Ferreira appeals from so much of a Housing Court judgment as awards Geraldine Smith, his former tenant, $2,052.96 in damages for his breach of the implied warranty of habitability. Based upon our review of the limited record provided, we find no reason for disturbing the judgment.
Although Ferreira provided this court with a copy of the transcript of the December 20, 2011, trial, the three city of Boston inspectional services department abatement orders (trial exhibits 1, 4 and 5) relied upon by the judge to support her habitability award were not included in the record appendix. Moreover, no transcript of the assessment of damages hearing held on February 17, 2012, was provided.
The judge based her habitability award on the evidence of rodent infestation documented on three separate occasions by the city of Boston inspectional services department (ISD) in Smith's unit between April, 2008, and February, 2009. She rejected Ferreira's denial of access defense. Supported as it was by Smith's testimony and the ISD abatement orders, we find nothing arbitrary about that disposition. Moreover, we find no merit to Ferreira's argument that the judge abused her discretion by “failing to take into consideration the weight of the evidence he provided.” In her decision, she specifically noted that Ferreira was unable to provide her with the dates on which he requested, and was denied, access to the unit. Contrary to his assertion in his brief that he was barred throughout Smith's tenancy, Ferreira admitted at trial that over the years Smith had allowed him access at times (and in fact, condition problems had been addressed). Although the judge credited the testimony of John Connors, the ISD inspector and court coordinator, regarding his difficulties accessing Smith's unit, the judge did not find his testimony particularly relevant to the defense because Connors's difficulties had occurred after September, 2009 (i.e., after the relevant time period for which the judge awarded habitability damages). Connors provided no testimony as to when the other ISD inspectors were allegedly barred from the unit. Finally, the judge noted that Ferreira admitted that he did not seek a court order for access until September, 2009. In sum, we find no support for Ferreira's contention that the judge failed to consider his evidence.
Smith consistently maintained and testified that she never denied Ferreira access to her unit or failed to cooperate with him.
The existence of a material breach of the warranty of habitability was a question of fact for the judge. See Jablonski v. Casey, 64 Mass.App.Ct. 744, 746 (2005). Judges are afforded broad discretion in making these determinations. See Kelly v. Jones, 80 Mass.App.Ct. 476, 477–478 (2011). Here, we conclude that the judge's finding that the presence of rodents over a ten-month period constituted a material breach was not clearly erroneous. See id. at 477.
The judge applied the proper factors in making that materiality determination. See Jablonski v. Casey, supra. Ferreira admittedly knew about the rodent problem. The judge could properly have found that the problem was not isolated but rather a persistent infestation left unresolved over a significant length of time. Although Ferreira claimed that Smith thwarted his remediation efforts, the judge was warranted in accepting Smith's testimony to the contrary. See id. at 747 (appellate court must give deference to the trial judge's credibility determinations). The judge's finding that the rodent problem did not result from abnormal conduct or use by Smith was not clearly erroneous. As the judge noted, while Smith's housekeeping may have contributed to the problem, there was no evidence that changes in Smith's customs were sought. Moreover, when he initiated eviction proceedings in July, 2009, Ferreira did not seek to terminate the tenancy for any cleanliness issue.
There was evidence that the rodent problem was not resolved, as the judge found, until after February, 2009. During the relevant time period, ISD brought two criminal complaints against Ferreira for failure to correct the numerous problems in Smith's unit.
Contrary to Ferreira's assertion, Connors did not testify that Smith may have planted dead rodents in the unit in anticipation of an inspection. In fact, he testified that he did not recall seeing a dead mouse. However, he did notice mouse droppings in several places in Smith's kitchen area.
Judgment affirmed.