Opinion
16-P-276
05-08-2017
Temple Bruner STAPLES v. Kevin R. O'MALLEY & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff (landlord) brought a summary process action against the defendants (tenants), seeking possession of the premises and monies due for use and occupancy. Following a bench trial, a Housing Court judge awarded possession to the landlord, as well as monies due for use and occupancy and reasonable attorney's fees. We affirm.
The tenants filed a notice of appeal of the judgment entered on June 22, 2015, which included an order allowing the award of reasonable attorney's fees; however, they did not file a notice of appeal of the judgment entered on July 7, 2015, that amended the June 22, 2015, judgment to include the actual amount of attorney's fees awarded. Because the reasonableness of the amount of attorney's fees has been fully briefed and argued, we address the issue in exercise of our discretion. See, e.g., Scannell v. Attorney Gen., 70 Mass. App. Ct. 46, 47 n.2 (2007).
Discussion. "When reviewing the trial judge's decision, we accept his findings of fact as true unless they are clearly erroneous, and we give due regard to the judge's assessment of the witnesses' credibility." Andover Hous. Authy. v. Shkolnik, 443 Mass. 300, 306 (2005), citing Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996).
Section 8A of G. L. c. 239 allows tenants in a summary process action to raise, by defense or counterclaim, claims against the landlord for a breach of warranty, a breach of any material provision of the rental agreement, or a violation of any other law. G. L. c. 239, § 8A, first par.
Here, despite the execution of a written lease, the tenants defend their refusal to vacate the premises at the end of the stated term on grounds that the landlord's real estate agent orally misrepresented how long they could rent the premises. The tenants testified that prior to execution of the written lease, the real estate agent suggested that the tenants could occupy the house for longer than one year. Relying on the lease's explicit language, the judge found that the tenants' occupancy term expired on April 15, 2015. We discern no error in the judge's conclusion that the tenants failed to raise an actionable defense. See Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 421 (2005).
It is undisputed that the written lease's stated term was April 12, 2014, until April 11, 2015.
At trial, tenant Kevin R. O'Malley testified that the agent "suggested ... it had been a rental for many years ... [and] that staying on shouldn't be any problem." The landlord's counsel objected to that testimony and moved to strike. The judge sustained the objection and allowed the motion to strike.
We also note that in a later hearing regarding the tenants' motion to waive the appeal bond, O'Malley testified that, while the landlord was not present, in response to his statement, "we need a two year lease, the long term lease to stay while—till our daughter graduated from high school in 2016," the agent assured him, "Oh, it's been a long term lease." The judge did not credit that testimony.
Even if the judge had found credible the tenants' assertions that the real estate agent made such statements, "[i]t is unreasonable as a matter of law to rely on prior oral representations that are (as a matter of fact) specifically contradicted by the terms of a written contract." Masingill v. EMC Corp., 449 Mass. 532, 541 (2007). The tenants further attempt to raise a defense on the grounds that no suitable home existed in the area where they could relocate. Because that claim is not based on a breach of warranty, a breach of any material provision of the rental agreement, or a violation of any other law, it too fails to constitute an actionable defense. See Meikle v. Nurse, 474 Mass. 207, 211-212 (2016).
On appeal, the tenants raise two additional defenses on grounds of improper retaliation and violation of quiet enjoyment. However, those defenses were not raised in the answer and are thus waived. See Rule 3 of the Uniform Summary Process Rules (1993) ("The defendant shall also state in the answer any affirmative defense which may be asserted").
The tenants further argue that the amount of attorney's fees awarded was unreasonable and constituted error. We disagree. "A judge has considerable discretion in determining the necessity and the amount of attorney's fees." Moriarty v. Stone, 41 Mass. App. Ct. 151, 159 (1996). Here, counsel's fee request was supported by an affidavit, which included the relevant fee agreement, and a listing of services performed and time spent. Notably, the judge awarded only $2,500 of the requested $4,771, demonstrating his scrutiny in determining a reasonable amount. Compare Pearson v. Pearson, 52 Mass. App. Ct. 156, 164-165 (2001).
We grant the landlord's request for appellate attorney's fees pursuant to the lease, which provides for recovery of reasonable attorney's fees and costs to enforce the lease or to recover possession or damages. In accordance with Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the plaintiff may file an affidavit and documentation in support of her request within twenty-one days of the date of the rescript, and the defendants shall have fourteen days thereafter to respond. The landlord's request for double costs is denied.
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Judgment entered July 7, 2015, affirmed.