NANNAN v. NEVINS (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

David and Rhea Nannan filed a summary process action against Kafer Nevins for unpaid rent.³ Nevins counterclaimed for retaliation, discrimination based on receipt of public rental assistance, interference with quiet enjoyment, breach of the warranty of habitability, a violation of G. L. c. 186, § 15B, and violations of G. L. c. 93A. Following a bench trial, a Housing Court judge found for Nevins on all but his claims for retaliation and quiet enjoyment. Both sides appealed on numerous grounds. For the reasons discussed below, we vacate and remand solely on the judge's decision pertaining to Nevins's retaliation and quiet enjoyment claims, and for consideration of attorney's fees and costs related to Nevins's c. 93A claim; we affirm the judge's determinations on all other respects.

Discussion. 1. Unpaid rent. The judge found against the Nannans on their unpaid rent claim after ruling that a “Section 8 Housing Choice Voucher Program Model Dwelling Lease” (model lease) governed the tenancy over an earlier lease (original lease) entered into by the parties. On appeal, the Nannans unpersuasively reassert that the original lease governed the tenancy. “In reviewing the judge's decision, we accept her findings of fact unless they are clearly erroneous,” but review her legal conclusions de novo. Anastos v. Sable, 443 Mass. 146, 149 (2004).

Here, the Nannans and Nevins entered into a lease agreement on August 12, 2003. In it Nevins agreed to a rental payment of $ 1300 per month. However, on August 28 and September 2, 2003, Nevins and David Nannan entered into the subsequent model lease, which set the monthly rental payment at $ 1052 -- with Nevins contributing only $ 101 per month. This model lease also contained a merger clause, which stated, “this Lease with attached Tenancy Addendum constitutes the entire agreement between the parties.”

Despite the existence of this superseding lease, the Nannans assert that the originally signed lease and not the subsequently signed model lease controlled the tenancy because (1) the parties did not intend for the subsequent lease to control; (2) a “standard lease form” automatically overrides a subsequently signed model lease; (3) Nevins did not follow the procedure outlined in 24 C.F.R. § 982.302 (c) (1999) for submitting the subsequent model lease for approval by the housing authority; (4) the model lease is nullified due to a misspelling of Nevins's surname by one letter; (5) David Nannan failed to read the model lease before signing; and (6) Nevins's pattern and practice of paying $ 1300 per month rent for some time overrides the subsequent model lease. We disagree.

First, the Nannans have pointed us to no authority, nor are we aware of any, supporting their contention that the “standard lease form” automatically overrides a subsequently signed model lease. Rather, when the parties freely replaced the original lease agreement with a subsequent properly executed second lease agreement, it became the entire agreement between them. Roddy & McNulty Ins. Agency, Inc. v. A.A. Proctor & Co., 16 Mass. App. Ct. 525, 536 (1983). Furthermore, absent intentional misrepresentation or other intentional misconduct, of which there is no claim here, the merger clause controlled, and this clause clearly expressed the parties' intent to make the later model agreement the entire agreement of the parties. See Beatty v. NP Corp., 31 Mass. App. Ct. 606, 612 (1991) (“contracts rest on objectively expressed manifestations of intent”).

Second, we see no record support for the proposition that Nevins did not follow the procedure outlined in 24 C.F.R. § 982.302 (c) for submitting the model lease to the relevant public housing authority for approval. Third, despite the fact that in the model lease Nannan's name appears misspelled by one letter, it is clear the agreement was between the Nannans and Nevins; the misspelling had no material effect upon the agreement. Cf. Ciampa v. Bank of Am., 88 Mass. App. Ct. 28, 31-33 (2015) (misspelled name does not undo trust agreement if intent is clear from attendant circumstances). See also Brown v. Gilman, 13 Tyng 158, 161 (1816) (wrong name in contract may be corrected or supplied by extrinsic evidence).

Fourth, it is also of no material consequence that David Nannan failed to read the model lease before signing it. He is still bound by the terms of a contract that he voluntarily signed and entered into. Commerce Bank & Trust Co. v. Hayeck, 46 Mass. App. Ct. 687, 693 (1999). Finally, while Nevins engaged in a ten-year course of conduct of paying a $ 1300 monthly rental fee, that course of conduct alone did not override the unambiguous terms of the parties' written agreement. Lodge Corp. v. Assurance Co. of Am., 56 Mass. App. Ct. 195, 197-198 (2002). See Harrington v. Fall River Hous. Authy., 27 Mass. App. Ct. 301, 307 (1989) (although defendant proceeded on a course of conduct consistent with an oral promise for three years, the fact that such a promise contradicted express language found in contemporaneously signed leases warranted excluding evidence of the oral promise under the parole evidence rule).

2. Subsidy discrimination. We now turn to Nevins's cross appeal. He first contends that the judge erroneously found that the Nannans did not discriminate against him on the basis of receipt of public assistance. We are not persuaded. G. L. c. 151B, § 4 (10), makes it unlawful

“For any person furnishing ․ rental accommodations to discriminate against any individual ․ who is a tenant receiving [F]ederal, [S]tate, or local housing subsidies ․ because the individual is such a recipient, or because of any requirement of such public assistance, rental assistance, or housing subsidy program.”

When a tenant establishes a prima facie case of discrimination, the burden then shifts to the landlord to rebut the claim of subsidy discrimination. See Attorney Gen. v. Brown, 400 Mass. 826, 833 (1987); Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 131, 136-139 (1976). Here, however, Nevins did not establish a prima facie claim of subsidy discrimination. There is no evidence that the Nannans ended Nevins's tenancy due to his status as a subsidy recipient. Rather, operating under the misassumption that original lease governed the tenancy, the Nannans moved to terminate the tenancy on the basis of their belief that he was in violation of that original lease agreement. There was otherwise no breakdown in their ten year long landlord-tenant relationship relating to Nevins's housing subsidy.⁴

3. Covenant of quiet enjoyment. Nevins next contends that the judge erred in failing to find a breach of the covenant of quiet enjoyment. A landlord violates the covenant of quiet enjoyment through “acts or omissions [that] impair the value of the leased premises.” Cruz Mgt. Co. v. Thomas, 417 Mass. 782, 789 (1994). Such impairments ripen into a cause of action only when the landlord is on notice of them and fails to remedy them. Al-Ziab v. Mourgis, 424 Mass. 847, 851 (1997).

Here, there was evidence that on April 25, 2014, Nevins complained of numerous defects in the apartment and that an inspection by Metropolitan Boston Housing Partnership, Inc. (MBHP), on August 4, 2014 revealed the existence of defects. There was also evidence that on March 3, 2015, a Boston housing inspector also recorded numerous defects in the apartment, including nonfunctioning smoke and carbon monoxide detectors, which he ordered replaced immediately.⁵ The judge did not address Nevins's quiet enjoyment claim on the basis of his assertion of uninhabitable conditions but rather on the basis of a cross-metering claim that Nevins neither pleaded nor discussed at trial. Accordingly, we vacate the judge's determination of the quiet enjoyment claim, and remand that issue for redetermination by the judge under the appropriate analysis. See Muldoon v. Planning Bd. of Marblehead, 72 Mass. App. Ct. 372, 376 (2008) (remand needed for findings relating to an issue the trial judge did not reach).

4. Retaliation. We likewise remand for the judge to consider Nevins's retaliation claim. Pursuant to G. L. c. 186, § 18,

“Any person or agent thereof who threatens to or takes reprisals against any tenant of residential premises for the tenant's act of ․ reporting or complaining of such violation or suspected violation [of housing laws] in writing to the landlord or to the agent of the landlord ․ shall be liable for damages ․

“The receipt of any notice of termination of tenancy, except for nonpayment of rent, or, of increase in rent, or, of any substantial alteration in the terms of tenancy within six months after the tenant has ․ made such report or complaint, ․ shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence that such person's action was not a reprisal against the tenant and that such person had sufficient independent justification for taking such action, and would have in fact taken such action, in the same manner and at the same time the action was taken, regardless of tenants engaging in, or the belief that tenants had engaged in, activities protected under this section.”

Here, there is evidence that Nevins e-mailed a complaint to the Nannans regarding the conditions of the apartment on April 25, 2014, and Rhea Nannan responded with a notice of nonrenewal, asking that he vacate the apartment on June 25, 2014. The timing of the Nannans's notice of nonrenewal fell squarely within the statutory time frame for the existence of a rebuttable presumption of retaliation but the judge did not address whether the Nannans rebutted this presumption by clear and convincing evidence. Accordingly, we vacate and remand on this claim as well. See Muldoon, 72 Mass. App. Ct. at 376.

5. Damages and fees under c. 93A. Nevins also asserts that the judge should have entered damages under G. L. c. 93A for his claim pursuant to G. L. c. 186, § 15B, and for his claim for breach of warranty of habitability. We disagree.

Whether a party's actions violate G. L. c. 93A and whether that violation is willful or knowing are questions of fact for the trial court. Squeri v. McCarrick, 32 Mass. App. Ct. 203, 207-208 (1992). We will not disturb such factual findings unless they are clearly erroneous. Anastos, 443 Mass. at 149.

We discern no error in the judge's finding of a c. 93A violation but refusal to award separate damages under that chapter. Where the judge found that the Nannans did not breach c. 93A willfully or knowingly, and she had already awarded damages for identical conduct under a different theory, the judge was under no obligation to award separate damages under c. 93A. Nevins is not automatically entitled to multiple damages. See G. L. c. 93A, § 9 (3).

However, once the judge found that the Nannans violated c. 93A, she was required to award reasonable attorney's fees and costs relating to that claim. See G. L. c. 93A, § 9 (4). The judge did not address this issue in her original findings. Furthermore, her findings do not make clear which prevailing claim or claims she found to be in violation of c. 93A. Accordingly, we remand for the judge to clarify her findings as to the c. 93A violation and, to the extent that she has not already awarded fees and costs for such violation, for her consideration of fees and costs related to only the time and costs expended in proving such c. 93A violations. See Muldoon, 72 Mass. App. Ct. at 376.

6. Costs. Finally, Nevins claims that the judge should have awarded him costs for his taking of a deposition. We are not convinced.

We review the judge's decision on costs for an abuse of discretion. Passatempo v. McMenimen, 86 Mass. App. Ct. 742, 747 (2014). Here, the judge found that the Nannans violated G. L. c. 93A, § 9 (4), and G. L. c. 186, § 15B, both of which provide for the recovery of costs by the prevailing party. However, a prevailing party may only recover costs expended on a claim pertaining to those statutes. Cf. Miller v. Risk Mgt. Found. of Harvard Med. Insts., Inc., 36 Mass. App. Ct. 411, 421 (1994) (discussing c. 93A). On the record before us, we see no support for his claim that the deposition related to Nevins's c. 93A or § 15B claims.⁶ Accordingly, we discern no abuse of discretion.

Conclusion. The portions of the judgment on the claims for breach of covenant of quiet enjoyment and for retaliation, and on defendant's request for attorney's fees related to the G. L. c. 93A claim, are vacated. The judgment is otherwise affirmed. The matter is remanded for further proceedings consistent with this memorandum and order.

So ordered.

vacated in part; affirmed in part and remanded

FOOTNOTES

3.   The Nannans also sued for possession but dropped that claim once Nevins vacated the apartment at issue before trial. This case then moved from the summary process docket to the civil docket.

4.   Nevins also contends that the Nannans' failure to make repairs required by Metropolitan Boston Housing Partnership, Inc. (MBHP), when he remained in the apartment after his lease term ended constitutes subsidy discrimination because MBHP eventually stopped making use and occupancy payments, forcing him to move. This also fails to show subsidy discrimination because there is no indication that the Nannans refused to make the repairs and forced Nevins to move because of his status as a subsidized tenant.

5.   The Nannans correctly assert that the section 8 program requirements, such as those cited by MBHP in its inspections, do not outlive the lease. 24 C.F.R. § 982.309(b)(1) (1999). However, this does not change Nevins's ability to raise concerns regarding the state of the apartment. See Meikle v. Nurse, 474 Mass. 207, 209 n.3 (2016) (tenants at sufferance may raise sanitation code violations as defense to summary process).

6.   Nevins did not include any portion of the deposition in his record appendix, thereby, preventing appellate review of this issue. See Mass. R. A. P. 18 (a), as amended, 481 Mass. 1637-1638 (2019) (“The appellant shall prepare and file an appendix to the briefs[, which] shall contain: ․ any ․ parts of the record relied upon in the brief”).