NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-867
THE SHORELINE CORPORATION & another 1
vs.
BENJAMIN PEÑA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On appeal from a summary process eviction, the tenant
Benjamin Peña argues that the judge erred in concluding, based
in part on the testimony of the building's maintenance
supervisor, that the eviction was justified by the tenant's
overuse of hot water. The tenant further argues that the judge
should have allowed his posttrial motions for reconsideration of
the judgment because of the tenant's cognitive disability, for
the landlord's failure to provide a reasonable accommodation,
and for a psychological evaluation and appointment of a guardian
ad litem. We affirm.
Background. With the assistance of Federal housing
subsidies, the tenant rents an apartment in Lawrence (apartment)
1 Valebrook Associates. that is owned and managed by plaintiffs The Shoreline
Corporation and Valebrook Associates (collectively, the
landlord). In January 2018, with the assistance of a housing
specialist, the tenant and the landlord entered into an
agreement under which the tenant agreed not to run the hot water
in his apartment "for more than ten (10) minutes at a time."
After a Housing Court judge approved this agreement, it became a
legally binding court order.
In February 2021, the landlord served the tenant with a
notice to quit alleging, "you have been repeatedly and
excessively running the hot water in your apartment which has
created a large amount of moisture and condensation to form on
your windows and walls . . . and it has caused issues with the
heating loop resulting in inconsistent heating temperatures for
the building." A Housing Court judge entered a preliminary
injunction that, among other things, ordered the tenant to
"utilize the water in his apartment in a reasonable manner,"
including not running water without a specific purpose or using
hot water for longer than twenty minutes. The judge also
ordered the matter referred to the Tenancy Preservation Program
(TPP) "[t]o assess and make an opinion on [the tenant]'s . . .
mental capacity" and "whether the court should appoint a
2 guardian ad litem for [the tenant]." 2 In March 2021, the
landlord served the tenant with a summary process complaint
alleging that the tenant had violated the lease and interfered
with the "health, safety and welfare of other residents," and
reiterating the factual allegations in the notice to quit.
On July 1, 2021, which had been scheduled as a trial date,
the tenant moved to continue the trial; his counsel expressed
concerns about the tenant's "mental health" and asked for "an
opportunity to have him evaluated by a medical professional."
The judge continued the trial to allow the tenant to file a
reasonable accommodation request.
In August 2021, the tenant filed a motion for reasonable
accommodation, arguing that he needed to take hot water baths to
ease his frequent pain from his "numerous physical disabilities,
including diabetes, osteoporosis, and arthritis." The tenant's
counsel informed the judge that she had previously understood
that the tenant needed a "reasonable accommodation related,
potentially, to [his] mental capacity," but after she "received
2 A "'cooperative effort' between the Housing Court and private nonprofit agencies," TPP is intended to assist tenants suffering from mental illness (citation omitted). Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833, 845 (2009). TPP investigates "whether a tenancy can be preserved through reasonable accommodations for a tenant's disability." Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 847 n.23 (2019).
3 more information . . . the direction changed." The judge denied
the motion for reasonable accommodation.
Based on the evidence at the September 22, 2021 trial, the
judge found as follows. As a result of frequent complaints from
other residents about the lack of hot water, the landlord's
maintenance supervisor checked the building's hot water tanks
and found that the volume of the hot water was low and was
falling quickly. On several occasions including January 20, 29,
and 31, 2021, the maintenance supervisor went to the apartment,
where the tenant was running hot water from all of the faucets.
The tenant's excess water usage caused condensation resulting in
water dripping from the ceiling of the apartment below, buildup
of about two inches of ice on the apartment's windows, and lack
of hot water for other residents. To adjust for the tenant's
excessive use of hot water, the maintenance supervisor had to
raise the water temperature for the building, creating a risk of
scalding water for residents. On January 5, 2022, the judge
issued a memorandum of decision, concluding that the tenant was
in material noncompliance with his lease.
On January 18, 2022, the tenant moved pursuant to Mass. R.
Civ. P. 59, 365 Mass. 827 (1974), and Mass. R. Civ. P. 60, 365
Mass. 828 (1974), for the Housing Court to reconsider and amend
the judgment, arguing that the judge had not fully considered
the tenant's "physical and mental disabilities." The tenant
4 supported the motion with an affidavit from a homemaker who
assisted the tenant in his apartment four days each week; the
affidavit described the tenant's physical symptoms and "trouble
facing reality with things that make him stressed." 3 The tenant
argued that the affidavit supported an inference that he "may be
suffering from some undiagnosed capacity issue or mental
disability," which warranted reconsideration of the judgment and
exploration of possible reasonable accommodations. The tenant
also moved for a psychological evaluation and appointment of a
guardian ad litem. 4 The judge denied the motions, and the tenant
appealed.
Discussion. 1. Maintenance supervisor's testimony. The
tenant contends that the judge erred in allowing the landlord's
maintenance supervisor to testify as an expert about how the
tenant's use of hot water affected the water temperature in the
building. At trial, the tenant objected to the maintenance
supervisor's testimony that, as a result of complaints from
other residents about the lack of hot water, the maintenance
supervisor checked the building's three hot water tanks every
hour and found that the tanks were "draining" because they were
3 We note that the affidavit was not signed under the pains and penalties of perjury.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-867
THE SHORELINE CORPORATION & another 1
vs.
BENJAMIN PEÑA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On appeal from a summary process eviction, the tenant
Benjamin Peña argues that the judge erred in concluding, based
in part on the testimony of the building's maintenance
supervisor, that the eviction was justified by the tenant's
overuse of hot water. The tenant further argues that the judge
should have allowed his posttrial motions for reconsideration of
the judgment because of the tenant's cognitive disability, for
the landlord's failure to provide a reasonable accommodation,
and for a psychological evaluation and appointment of a guardian
ad litem. We affirm.
Background. With the assistance of Federal housing
subsidies, the tenant rents an apartment in Lawrence (apartment)
1 Valebrook Associates. that is owned and managed by plaintiffs The Shoreline
Corporation and Valebrook Associates (collectively, the
landlord). In January 2018, with the assistance of a housing
specialist, the tenant and the landlord entered into an
agreement under which the tenant agreed not to run the hot water
in his apartment "for more than ten (10) minutes at a time."
After a Housing Court judge approved this agreement, it became a
legally binding court order.
In February 2021, the landlord served the tenant with a
notice to quit alleging, "you have been repeatedly and
excessively running the hot water in your apartment which has
created a large amount of moisture and condensation to form on
your windows and walls . . . and it has caused issues with the
heating loop resulting in inconsistent heating temperatures for
the building." A Housing Court judge entered a preliminary
injunction that, among other things, ordered the tenant to
"utilize the water in his apartment in a reasonable manner,"
including not running water without a specific purpose or using
hot water for longer than twenty minutes. The judge also
ordered the matter referred to the Tenancy Preservation Program
(TPP) "[t]o assess and make an opinion on [the tenant]'s . . .
mental capacity" and "whether the court should appoint a
2 guardian ad litem for [the tenant]." 2 In March 2021, the
landlord served the tenant with a summary process complaint
alleging that the tenant had violated the lease and interfered
with the "health, safety and welfare of other residents," and
reiterating the factual allegations in the notice to quit.
On July 1, 2021, which had been scheduled as a trial date,
the tenant moved to continue the trial; his counsel expressed
concerns about the tenant's "mental health" and asked for "an
opportunity to have him evaluated by a medical professional."
The judge continued the trial to allow the tenant to file a
reasonable accommodation request.
In August 2021, the tenant filed a motion for reasonable
accommodation, arguing that he needed to take hot water baths to
ease his frequent pain from his "numerous physical disabilities,
including diabetes, osteoporosis, and arthritis." The tenant's
counsel informed the judge that she had previously understood
that the tenant needed a "reasonable accommodation related,
potentially, to [his] mental capacity," but after she "received
2 A "'cooperative effort' between the Housing Court and private nonprofit agencies," TPP is intended to assist tenants suffering from mental illness (citation omitted). Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833, 845 (2009). TPP investigates "whether a tenancy can be preserved through reasonable accommodations for a tenant's disability." Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 847 n.23 (2019).
3 more information . . . the direction changed." The judge denied
the motion for reasonable accommodation.
Based on the evidence at the September 22, 2021 trial, the
judge found as follows. As a result of frequent complaints from
other residents about the lack of hot water, the landlord's
maintenance supervisor checked the building's hot water tanks
and found that the volume of the hot water was low and was
falling quickly. On several occasions including January 20, 29,
and 31, 2021, the maintenance supervisor went to the apartment,
where the tenant was running hot water from all of the faucets.
The tenant's excess water usage caused condensation resulting in
water dripping from the ceiling of the apartment below, buildup
of about two inches of ice on the apartment's windows, and lack
of hot water for other residents. To adjust for the tenant's
excessive use of hot water, the maintenance supervisor had to
raise the water temperature for the building, creating a risk of
scalding water for residents. On January 5, 2022, the judge
issued a memorandum of decision, concluding that the tenant was
in material noncompliance with his lease.
On January 18, 2022, the tenant moved pursuant to Mass. R.
Civ. P. 59, 365 Mass. 827 (1974), and Mass. R. Civ. P. 60, 365
Mass. 828 (1974), for the Housing Court to reconsider and amend
the judgment, arguing that the judge had not fully considered
the tenant's "physical and mental disabilities." The tenant
4 supported the motion with an affidavit from a homemaker who
assisted the tenant in his apartment four days each week; the
affidavit described the tenant's physical symptoms and "trouble
facing reality with things that make him stressed." 3 The tenant
argued that the affidavit supported an inference that he "may be
suffering from some undiagnosed capacity issue or mental
disability," which warranted reconsideration of the judgment and
exploration of possible reasonable accommodations. The tenant
also moved for a psychological evaluation and appointment of a
guardian ad litem. 4 The judge denied the motions, and the tenant
appealed.
Discussion. 1. Maintenance supervisor's testimony. The
tenant contends that the judge erred in allowing the landlord's
maintenance supervisor to testify as an expert about how the
tenant's use of hot water affected the water temperature in the
building. At trial, the tenant objected to the maintenance
supervisor's testimony that, as a result of complaints from
other residents about the lack of hot water, the maintenance
supervisor checked the building's three hot water tanks every
hour and found that the tanks were "draining" because they were
3 We note that the affidavit was not signed under the pains and penalties of perjury. 4 The tenant subsequently submitted a report of a psychologist
that described and diagnosed certain cognitive impairments of the tenant. We have reviewed that report, which is impounded.
5 "overworking." The judge ruled that, to the extent the
testimony included expert opinion, he would allow it.
We review the admission of expert testimony for an abuse of
discretion. See Commonwealth v. Davis, 487 Mass. 448, 455
(2021). To qualify as an expert, a witness must have
"sufficient 'education, training, experience and familiarity'
with the subject matter of the testimony" (citation omitted).
Commonwealth v. Rintala, 488 Mass. 421, 425 (2021). See Mass.
G. Evid. § 702 (2023). Additionally, expert testimony must
"rest[] on a reliable foundation." Commonwealth v. Hinds, 487
Mass. 212, 217-218 (2021), quoting Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 597 (1993).
We discern no abuse of discretion. Most of the maintenance
supervisor's testimony related facts that he perceived directly:
the other residents' complaints, the dropping levels in the hot
water tanks, the faucets running hot water in the tenant's
apartment, and the conditions in that apartment and the one
below. To the extent that the maintenance supervisor opined as
an expert by drawing a causal connection between those facts,
the judge was within his discretion to admit that opinion. At
the time of trial, the landlord's maintenance supervisor had
worked in his position for almost seven years and checked the
boiler systems in the building on a "daily basis." Based on the
maintenance supervisor's experience and familiarity with the
6 boiler system, the judge acted within his discretion in
admitting the maintenance supervisor's opinion testimony. See,
e.g., Lenehan v. Travers, 288 Mass. 156, 158-159 (1934) (expert
qualified based on work experience, even without specialized
training or education); Lavin v. Lavin, 24 Mass. App Ct. 929,
931 (1987) (expert qualified based on work experience and
familiarity with field).
The tenant also argues, for the first time on appeal, that
the methodology underlying the maintenance supervisor's
testimony was unreliable. The tenant waived that argument by
not raising it before or during trial. See Matter of Esteraz,
90 Mass. App. Ct. 330, 335 (2016) ("The failure to request a
Daubert-Lanigan hearing to establish the reliability of expert
testimony constitutes waiver of the issue"). See also Daubert,
509 U.S. at 592-595; Commonwealth v. Lanigan, 419 Mass. 15, 24-
26 (1994).
2. Sufficiency of evidence. The tenant argues that the
judge erred in finding, based on the evidence at the trial, that
there was "good cause" for the tenant's eviction from Federally
subsidized housing. 5 On review of summary process actions, we
5 To the extent that the tenant argues that the judge's memorandum of decision contained an error of law because it omitted discussion of Federal housing regulations, we are not persuaded. The judge's memorandum of decision did address Federal requirements, even if it did not explicitly cite them. Thus, the tenant misplaces his reliance on RFT & Assocs. v.
7 accept as true the factual findings of the judge, but
"scrutinize without deference the legal standard which the judge
applied to the facts" (citation omitted). Cambridge St. Realty,
LLC v. Stewart, 481 Mass. 121, 123 (2018). Based on the
evidence set forth above, including the testimony of the
maintenance supervisor, the judge had ample basis in the facts
to conclude that the tenant had violated the lease. See 24
C.F.R. § 247.3 (permitting termination of Section 8 tenancy for
good cause, including "[m]aterial noncompliance with the rental
agreement," which may include "[r]epeated minor violations" of a
lease which "[d]isrupt the livability of the project,"
"[a]dversely affect" other residents' quiet enjoyment of their
property, or "[i]nterfere with the management of the project"). 6
3. Posttrial motions. The tenant argues that the judge
erred in denying his posttrial motions to revise and reconsider
Smith, 419 N.W.2d 109, 111 (Minn. Ct. App. 1998) ("trial court did not address the fundamental 'good cause' requirement for termination of [a] Section 8 lease"). 6 The tenant argues, apparently for the first time on appeal,
that even if there was good cause to evict him, the judge should have applied the "equitable anti-forfeiture doctrine" and considered whether the harm to the tenant from eviction outweighed the harm to the landlord. Based on the evidence at trial, including the interference with other residents' quiet enjoyment, that argument is unavailing. The tenant misplaces his reliance on cases where courts have granted equitable relief against forfeiture when a "lessee has failed to pay rent" or has breached a "collateral covenant . . . due to accident or mistake and no harm has resulted to the lessor." Howard D. Johnson Co. v. Madigan, 361 Mass. 454, 457-458 (1972), quoting Eno Sys. Inc. v. Eno, 311 Mass. 334, 338 (1942).
8 the judgment of eviction, to require the landlord to provide him
with a reasonable accommodation, for appointment of a guardian
ad litem, and for a psychological evaluation. 7 The tenant argues
that information he submitted with those motions shows that he
has a cognitive disability, and so the judge should have set
aside the judgment in order to determine if the tenant was
entitled to a reasonable accommodation.
This court reviews denials of motions for reconsideration
for an abuse of discretion. See Blake v. Hometown Am.
Communities, Inc., 486 Mass. 268, 278 (2020). We discern no
abuse of discretion in the judge's implicit conclusion that that
information proffered by the tenant after trial did not warrant
reconsideration of the judgment. Before trial, the tenant's
counsel was aware of his possible cognitive issues, as shown by
her comments at the July and August 2021 pretrial hearings.
Indeed, in his motion to reconsider, the tenant stated that
"awareness of [the tenant]'s disabilities predate[d] the filing
of this case." Thus, what the tenant proffered after trial was
not information which "could not by due diligence have been
discovered earlier." Cahaly v. Benistar Prop. Exch. Trust Co.,
451 Mass. 343, 361 (2008). Moreover, neither the homemaker's
7 In the Housing Court, the landlord argued that the tenant's motion to reconsider was not timely under Mass. R. Civ. P. 59. The landlord does not raise that argument on appeal, and so we do not consider it.
9 affidavit nor the psychological evaluation supports the tenant's
position strongly enough to amount to a "substantial reason"
justifying relief. Mass. R. Civ. P. 60 (b).
As to the tenant's claim that the judge should have allowed
his posttrial motion for a reasonable accommodation, it is
without merit. The factors entitling a tenant to a reasonable
accommodation include whether (1) the tenant is disabled; (2)
there is a nexus between his disability and his conduct; and (3)
the requested accommodation is reasonable. See Boston Hous.
Auth. v. Bridgewaters, 452 Mass. 833, 843-844, 848-849 (2009).
See also Glendale Assocs., LP v. Harris, 97 Mass. App. Ct. 454,
462-464 (2020). We assume, without deciding, that the tenant
provided sufficient information with his posttrial motions for
the judge to have found that he met the first Bridgewaters
prong, and has a cognitive disability. In those circumstances,
the tenant cannot show prejudice from the judge's denial of his
posttrial motions for a psychological evaluation and appointment
of a guardian ad litem, which in any event were in the judge's
discretion. See G. L. c. 123, § 19; G. L. c. 185, § 40.
As to the second Bridgewaters prong, the tenant did not
demonstrate a nexus between his cognitive disability and his
excess hot water use. Based on the evidence at trial, the judge
found that the tenant ran hot water "to create a warm and humid
environment . . . as well as a topical treatment for his pain."
10 Since the judge found that the tenant's conduct was intentional,
to relieve his physical pain, the judge could properly conclude
that the tenant's posttrial filings did not show a nexus between
that conduct and tenant's asserted cognitive disability.
Nor did the tenant meet the third prong of the Bridgewaters
test. Even if there was sufficient evidence to support a nexus
between the tenant's cognitive disability and his excess hot
water use, the tenant did not demonstrate that a reasonable
accommodation was available. Among the submissions before the
judge were documents asserting the tenant's claim that shut-off
attachments could be installed on the apartment's faucets, as
well as those setting forth the landlord's response that those
attachments are not compatible with the building's plumbing. We
discern no error or abuse of discretion in the judge's denial of
the tenant's posttrial motion for a reasonable accommodation.
Judgment and orders denying motions for reconsideration and for psychological evaluation affirmed.
By the Court (Green, C.J., Milkey & Grant, JJ. 8),
Assistant Clerk
Entered: January 8, 2024.
8 The panelists are listed in order of seniority.