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
23-P-297
VA7 COHANNET LLC
vs.
PAMELA DONOVAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a bench trial in this summary process action, a judge
of the Housing Court awarded the plaintiff (landlord) possession
and costs. The defendant (tenant) appeals, raising various
challenges to the conduct of the trial and the judge's findings
and conclusions. We affirm.
Background. We summarize the judge's factual findings,
supplemented by undisputed evidence in the record. In October
2019 the tenant began leasing an apartment in a multifamily
housing complex in Taunton.1 Her most recent lease term began on
October 1, 2021, and terminated on September 30, 2022. The
monthly rent during that term was $1,265.
1 The landlord at the time was Cohannet Associates, LLC. There is no dispute that VA7 Cohannet LLC, is the current owner and lessor of the property. On June 29, 2022, the landlord sent the tenant a letter
offering to renew her lease at a monthly rent of $1,391. The
letter stated that the offer would expire on September 30, 2022,
and that a new lease needed to be signed before that date. On
or about August 31, 2022, before any new lease was signed, the
landlord sent the tenant another letter (nonrenewal notice)
rescinding the offer and advising the tenant that her lease
would not be renewed because of conduct by her that created "an
unhealthy landlord/tenant relationship," constituting "fault"
grounds for nonrenewal.
On September 26, 2022, the landlord served the tenant with
a summary process complaint, alleging that it had a good-faith
belief that the tenant did not intend to vacate by the end of
the lease term. The tenant filed an answer and one counterclaim
relating to a late fee.2 The case went to trial on January 10,
2023, at which the judge heard testimony from the tenant and
from the landlord's property manager, Brendaliz Veras.
Veras testified that the landlord's decision not to renew
the lease was based on multiple encounters between the tenant
and management staff in the summer of 2022. According to Veras,
the tenant repeatedly disparaged the staff, using vulgar
2 The judge found that the tenant offered no evidence in support of her counterclaim. The tenant does not challenge this finding on appeal.
2 language, and often called after hours and left messages, some
as long as ten minutes, "cursing or calling different staff
members . . . inappropriate names" while seemingly intoxicated.
The judge credited Veras's testimony.
The tenant testified that in the summer of 2022 she was
having trouble with a sliding glass door in her apartment.
Maintenance staff visited her apartment on June 17, June 20,
July 2, and July 11, 2022, but were unable to repair the door
even though they marked each work order as complete. The tenant
admitted that this "caused a lot of hostility" and
"discontentment on [her] part," and testified that she acted out
of frustration with the landlord's delay in repairing the door.
The judge credited the tenant's "testimony concerning her
increasing frustration with [the] Landlord."
The tenant also testified that she believed the landlord's
decision not to renew the lease was in retaliation for her
reporting the problems with the door to the Taunton board of
health (board). In response to the tenant's reports, the board
issued correction orders to the landlord on July 21 and December
12, 2022. The landlord ultimately replaced the door on December
14, 2022. The judge credited Veras's testimony that the door
was a custom order and that the delay in replacing it resulted
from issues with the vendor beyond the landlord's control.
3 Discussion. We construe the tenant's brief to be raising
the following arguments: (1) she was erroneously deprived of
her right to a jury trial; (2) the judge was biased against her;
(3) the judge erred by rejecting her claim of retaliation; and
(4) the judge should have found that the landlord breached the
implied warranty of habitability. In considering these
arguments, "we accept [the trial judge's] 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. Auth. v. Shkolnik, 443 Mass. 300, 306 (2005).
"[W]e scrutinize without deference the legal standard which the
judge applied to the facts." Id., quoting Kendall v. Selvaggio,
413 Mass. 619, 621 (1992).
We are unpersuaded by the tenant's contention that the
judgment should be reversed because she did not waive her right
to a jury trial either in writing or in open court. In summary
process actions, "a demand for jury trial shall be filed with
the court no later than the date on which the defendant's answer
is due." Rule 8 of the Uniform Summary Process Rules (1980).
The tenant did not make a timely demand under this rule, and so
the judge was not required to obtain a waiver from her before
proceeding with the bench trial. See Cort v. Majors, 92 Mass.
App. Ct. 151, 153 (2017) ("Once a party has properly demanded a
trial by jury, the case must proceed by jury trial unless there
4 is a valid waiver by the parties or a judicial determination
that the right to a jury trial is not applicable . . ."). Nor
did the tenant request a jury trial at any later point in the
proceeding. Had she done so, the judge could have ordered a
jury trial in her discretion, see Mass. R. Civ. P. 39 (b), 365
Mass. 801 (1974), but absent any such request, it is too late
for the tenant to raise the issue on appeal. See Spence v.
O'Brien, 15 Mass. App. Ct. 489, 499 (1983).
Relatedly, the tenant argues that she did not receive a
fair trial because the judge was biased. This argument appears
to be based on various adverse rulings that the judge made
against the tenant. Adverse rulings alone, however, are
insufficient to establish judicial bias except "'in the rarest
circumstances' where they 'reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible.'"
Passero v. Fitzsimmons, 92 Mass. App. Ct. 76, 83 (2017), quoting
Liteky v. United States, 510 U.S. 540, 555 (1994). This case
does not present those rarest of circumstances.
Next, we have no basis to overturn the judge's credibility
findings, which underpinned her conclusion that the landlord did
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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
23-P-297
VA7 COHANNET LLC
vs.
PAMELA DONOVAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a bench trial in this summary process action, a judge
of the Housing Court awarded the plaintiff (landlord) possession
and costs. The defendant (tenant) appeals, raising various
challenges to the conduct of the trial and the judge's findings
and conclusions. We affirm.
Background. We summarize the judge's factual findings,
supplemented by undisputed evidence in the record. In October
2019 the tenant began leasing an apartment in a multifamily
housing complex in Taunton.1 Her most recent lease term began on
October 1, 2021, and terminated on September 30, 2022. The
monthly rent during that term was $1,265.
1 The landlord at the time was Cohannet Associates, LLC. There is no dispute that VA7 Cohannet LLC, is the current owner and lessor of the property. On June 29, 2022, the landlord sent the tenant a letter
offering to renew her lease at a monthly rent of $1,391. The
letter stated that the offer would expire on September 30, 2022,
and that a new lease needed to be signed before that date. On
or about August 31, 2022, before any new lease was signed, the
landlord sent the tenant another letter (nonrenewal notice)
rescinding the offer and advising the tenant that her lease
would not be renewed because of conduct by her that created "an
unhealthy landlord/tenant relationship," constituting "fault"
grounds for nonrenewal.
On September 26, 2022, the landlord served the tenant with
a summary process complaint, alleging that it had a good-faith
belief that the tenant did not intend to vacate by the end of
the lease term. The tenant filed an answer and one counterclaim
relating to a late fee.2 The case went to trial on January 10,
2023, at which the judge heard testimony from the tenant and
from the landlord's property manager, Brendaliz Veras.
Veras testified that the landlord's decision not to renew
the lease was based on multiple encounters between the tenant
and management staff in the summer of 2022. According to Veras,
the tenant repeatedly disparaged the staff, using vulgar
2 The judge found that the tenant offered no evidence in support of her counterclaim. The tenant does not challenge this finding on appeal.
2 language, and often called after hours and left messages, some
as long as ten minutes, "cursing or calling different staff
members . . . inappropriate names" while seemingly intoxicated.
The judge credited Veras's testimony.
The tenant testified that in the summer of 2022 she was
having trouble with a sliding glass door in her apartment.
Maintenance staff visited her apartment on June 17, June 20,
July 2, and July 11, 2022, but were unable to repair the door
even though they marked each work order as complete. The tenant
admitted that this "caused a lot of hostility" and
"discontentment on [her] part," and testified that she acted out
of frustration with the landlord's delay in repairing the door.
The judge credited the tenant's "testimony concerning her
increasing frustration with [the] Landlord."
The tenant also testified that she believed the landlord's
decision not to renew the lease was in retaliation for her
reporting the problems with the door to the Taunton board of
health (board). In response to the tenant's reports, the board
issued correction orders to the landlord on July 21 and December
12, 2022. The landlord ultimately replaced the door on December
14, 2022. The judge credited Veras's testimony that the door
was a custom order and that the delay in replacing it resulted
from issues with the vendor beyond the landlord's control.
3 Discussion. We construe the tenant's brief to be raising
the following arguments: (1) she was erroneously deprived of
her right to a jury trial; (2) the judge was biased against her;
(3) the judge erred by rejecting her claim of retaliation; and
(4) the judge should have found that the landlord breached the
implied warranty of habitability. In considering these
arguments, "we accept [the trial judge's] 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. Auth. v. Shkolnik, 443 Mass. 300, 306 (2005).
"[W]e scrutinize without deference the legal standard which the
judge applied to the facts." Id., quoting Kendall v. Selvaggio,
413 Mass. 619, 621 (1992).
We are unpersuaded by the tenant's contention that the
judgment should be reversed because she did not waive her right
to a jury trial either in writing or in open court. In summary
process actions, "a demand for jury trial shall be filed with
the court no later than the date on which the defendant's answer
is due." Rule 8 of the Uniform Summary Process Rules (1980).
The tenant did not make a timely demand under this rule, and so
the judge was not required to obtain a waiver from her before
proceeding with the bench trial. See Cort v. Majors, 92 Mass.
App. Ct. 151, 153 (2017) ("Once a party has properly demanded a
trial by jury, the case must proceed by jury trial unless there
4 is a valid waiver by the parties or a judicial determination
that the right to a jury trial is not applicable . . ."). Nor
did the tenant request a jury trial at any later point in the
proceeding. Had she done so, the judge could have ordered a
jury trial in her discretion, see Mass. R. Civ. P. 39 (b), 365
Mass. 801 (1974), but absent any such request, it is too late
for the tenant to raise the issue on appeal. See Spence v.
O'Brien, 15 Mass. App. Ct. 489, 499 (1983).
Relatedly, the tenant argues that she did not receive a
fair trial because the judge was biased. This argument appears
to be based on various adverse rulings that the judge made
against the tenant. Adverse rulings alone, however, are
insufficient to establish judicial bias except "'in the rarest
circumstances' where they 'reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible.'"
Passero v. Fitzsimmons, 92 Mass. App. Ct. 76, 83 (2017), quoting
Liteky v. United States, 510 U.S. 540, 555 (1994). This case
does not present those rarest of circumstances.
Next, we have no basis to overturn the judge's credibility
findings, which underpinned her conclusion that the landlord did
not engage in retaliation. The judge correctly observed that,
under G. L. c. 239, § 2A, the tenant was entitled to a
rebuttable presumption of retaliation because the landlord sent
the nonrenewal notice (which the judge treated as akin to a
5 notice to quit) within six months after the tenant made her
reports to the board. But the judge went on to conclude that
the landlord rebutted the presumption with clear and convincing
evidence that it would have declined to renew the tenant's lease
even had she not made the reports. In particular, the judge
credited Veras's testimony that the landlord's decision not to
renew the lease was based solely on the tenant's combative and
verbally abusive conduct toward management staff. To the extent
the tenant challenges this finding, we see no basis in the
record to overturn the judge's assessment of the witnesses'
credibility, an issue that is "quintessentially the domain of
the trial judge." Johnston v. Johnston, 38 Mass. App. Ct. 531,
536 (1995).
Finally, the tenant argues that the landlord breached the
implied warranty of habitability by failing to repair or replace
the door within a reasonable time. The judge made no factual
findings on this issue, concluding as a matter of law that the
tenant was not entitled to raise breach of warranty as a
counterclaim or defense because the landlord's claim for
possession was based on allegations of fault on the part of the
tenant. We see no error in the judge's conclusion, which the
tenant does not challenge on appeal. Under G. L. c. 239, § 8A,
a tenant has the right to raise breach of warranty as a
counterclaim or defense to possession, but only where the action
6 for possession was "brought pursuant to a notice to quit for
nonpayment of rent, or where the tenancy has been terminated
without fault of the tenant." Section 8A does not apply where,
as here, the landlord's claim for possession is premised on
fault. See Spence, 15 Mass. App. Ct. at 499. Thus, while the
tenant is correct that the implied warranty of habitability
requires a landlord to keep a tenant's apartment in habitable
condition, she was not entitled to raise that claim as a defense
or counterclaim in this action. See id. (defense of
uninhabitable conditions not available to tenant where
landlord's claim for possession was premised on tenant's failure
to prevent third party from selling drugs out of her apartment).
The tenant can raise the claim through a separate action for
damages, as the judge explained at trial. See Davis v.
Comerford, 483 Mass. 164, 173 n.18 (2019) (breach of warranty of
habitability "is a claim in the nature of abatement or damages"
[citation omitted]).
7 In sum, having carefully reviewed the briefs, the record,
and the entire trial transcript, we discern no ground on which
to overturn the judgment for possession for the landlord. We
deny the landlord's request for appellate attorney's fees and
costs.
Judgment affirmed.
By the Court (Rubin, Blake & Shin, JJ.3),
Assistant Clerk
Entered: March 21, 2024.
3 The panelists are listed in order of seniority.