Opinion
No. 12–P–553.
2013-10-1
David WILLIAMS v. DALIN MULTI FAMILY FUND LLP.
By the Court (CYPHER, GRAHAM & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
David Williams appeals from a decision of a judge of the Housing Court dismissing his counterclaims against Dalin Multi Family Fund LLP (Dalin) for breach of warranty of habitability and other claims related to his alleged occupancy of unit 5 at 12 Wales Street in Dorchester section of Boston(the property) during Dalin's ownership. The judge concluded that Williams failed to meet his burden of proving he was a tenant or occupied the unit as that term is used in G.L.c. 239, § 8A, such that Dalin owed duties to him in regard to unit 5. We affirm.
Williams also appeals from an order denying his posttrial motions for reconsideration and for relief from judgment (based on fraud and on surprise).
The judge found that Dalin purchased unit 5, among other units at the property, in June of 2009 following foreclosure by the mortgagee bank. The bank made Dalin aware of two tenants residing in the building, neither of whom was Williams. Following its purchase, Dalin placed placards with Dalin's contact information in the front hall of the property, and left notes under each unit's door. Williams did not communicate with Dalin as a result of these notices. Dalin also was aware that there was no gas service at the property, further suggesting that unit 5 was unoccupied. In addition, beginning in August of 2009, workers were on site rehabilitating the building from 7:00 A.M. to 3:00 P.M. and no one saw or communicated with Williams.
It was not until December of 2009 that Dalin discovered Williams was making some use of unit 5 after another tenant reported seeing him coming and going from the building at night. In a letter dated January 22, 2010, Dalin notified Williams of the identification of the property manager for the property. Williams did not contact the property manager.
On February 18, 2010, Dalin served Williams a notice to quit. After he received the notice to quit, Williams filed a complaint about the conditions in the unit with the inspectional services department for the city of Boston. The unit was inspected on February 22 and the inspector issued an immediate order to vacate and notified Dalin's property manager of the conditions in the unit. So far as it appears from the record, this was Dalin's first notice of the conditions of the unit. A condemnation hearing was scheduled for March, 2010, but Dalin was able to avoid condemnation by voluntarily agreeing to find and to pay for alternative housing for Williams. Dalin incurred more than $9,000 in housing costs for Williams between February of 2010 and January of 2011.
In March of 2010, Dalin commenced a summary process action against Williams. When Dalin failed to appear, the summary process action was dismissed and Williams's counterclaims related to the condition of the unit and his claim for his security deposit were moved to the civil docket. A default judgment entered against Dalin in the amount of $25,015.23 plus interest and costs. Dalin's motion to set aside the default was allowed and trial on Williams's counterclaims proceeded over three days.
The judge found that Williams became a tenant of unit 5 in 1994 and occupied the unit from 1994 through 2007, while it was owned by a number of owners. The judge credited Williams's testimony that conditions causing the unit in February of 2010 to be deemed uninhabitable by the inspectional services department had existed since 2008 when Dana Schneider owned or controlled the property. These conditions included an absence of heat; no refrigerator, stove, or working smoke and carbon monoxide detectors; water infiltration causing the electrical outlets not to function; inoperable sinks, toilet, and tub; and water damage in walls and ceilings. In addition, trash littered the unit. The judge concluded that the testimonial evidence that Mr. Williams occupied the Premises when it was in the condition depicted in Exhibits '10,' '11' and '12' is not credible. There is no indicia of habitation in any of the sixty-eight photographs of the Premises submitted into evidence. The Court finds that Mr. Williams abandoned the Premises sometime prior to 2008 and has not occupied the Premises since then. The judge also concluded that Williams's claims against Dalin for return of his last month's rent and security deposit must fail. Discussion. Williams asks us to find that the judge's conclusion that he abandoned the unit prior to 2008 is clearly erroneous. That determination turned on the judge's assessment of Williams's credibility, which she considered in the context of photographs of the conditions in unit 5. The copies of the photographs in the record before us are so poorly reproduced that we cannot interpret them differently from the judge. While the pictures are clear enough to allow us to conclude that the unit was in deplorable condition, they do not shed light on when or to what extent Williams may have occupied the unit. Consequently, we are not in a position to disturb the judge's credibility determinations based on Williams's testimony and the photographs. Massachusetts Elec. Co. v. Pacific Natl. Inv. Corp., 9 Mass.App.Ct. 752, 753 (1980).
In support of his argument that he occupied the unit, Williams submitted copies of electric bills, at least one of which is addressed to him at unit 5 and covers some of the period of Dalin's ownership. Williams also submitted evidence that he continued to pay the electric bill for more than one year after he vacated the unit by order of the inspectional services department. As Williams continued to pay the electric bill when even he admits that he did not occupy the unit, we cannot fault the judge for declining to give persuasive weight to this evidence.
Williams's contention that he was unfairly surprised by the judge's decision because the joint pretrial memorandum and the answers to interrogatories reflect an agreement or at least a concession that Williams occupied unit 5, is unfounded. In denying Williams's motion for relief from judgment on the basis of unfair surprise, the judge concluded it should have come as no surprise that Williams was required to prove that element of his claim. Contrary to Williams's assertions on appeal, Dalin's statement of the case in the joint pretrial memorandum provides that no agreed tenancy between [Williams] and [Dalin] existed and [Dalin] did not owe any duty to him at any material time. Dalin further states that it owed no duty to Williams regarding unit 5, no tenancy was established, and Dalin did not know that Williams occupied it as he had claimed. The statement further noted that Williams never responded to Dalin's postings or letters concerning its new ownership, and denied Williams's claims that Dalin knew or should have known that Williams was occupying unit 5. Reading the joint pretrial memorandum as a whole, it does not support Williams's claim that his occupancy was not at issue. Furthermore, our review of the answers to interrogatories, also relied on by Williams, reveals similar language whereby Dalin admits only that it was unaware when it purchased the property that Williams was occupying unit 5 as claimed, and that it was only after Dalin discovered Williams's presence that it learned he claimed to have been occupying the unit since 1994. Finally, and perhaps most telling, Williams's claim to have been surprised is belied by his attorney's questioning at trial where he sought to have Dalin's representative admit that Williams was a tenant, but was unable to extract that admission.
While Williams contends that the very act of commencing a summary process action against him constitutes an admission that he occupied the unit, he has presented no authority to support that contention. Faced with Williams's claim that he had occupied the unit since 1994, Dalin cannot be faulted for resorting to summary process proceedings. Cf. Attorney Gen. v. Dime Sav. Bank of N.Y., FSB, 413 Mass. 284, 290–291 (1992) (new owner must use summary process). It was for the judge to decide whether Williams was a tenant or occupied the unit for the purposes of imposing liability on Dalin pursuant to G.L.c. 239, § 8A, and c. 93A. We discern no clear error in the judge's finding that Williams had not so occupied the unit during Dalin's ownership.
Finally, Williams contends the judge erred in vacating the default judgment against Dalin. Entry or, conversely, removal of default judgments has to do with the management of the case and, as such, is committed to the sound discretion of the trial judge.... We do not consider that discretion abused unless its exercise has been characterized by arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice. Greenleaf v. Massachusetts Bay Transp. Authy., 22 Mass.App.Ct. 426, 429 (1986), and cases cited. Here, the judge was persuaded that Dalin did not receive notice of the counterclaims or the court dates and determined that the factors enumerated in Berube v. McKesson Wine & Spirits Co., 7 Mass.App.Ct. 426, 430–431 (1979), favored relief from the default judgment. Substantially for the reasons stated by the judge in the order allowing the motion to set aside default, and in denying the posttrial motion for relief from judgment based on fraud, we discern no error. We have considered Williams's remaining arguments and find them to be without merit.
We deny Williams's request for appellate attorney's fees.
Judgment affirmed.
Order denying posttrial motions affirmed.