MALLOY v. BRAICA (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In September 2015 Robert Malloy (landlord) leased an apartment to Louise Braica and Douglas Pruneau (tenants). Two years later he sent the tenants a notice to quit, asserting nonpayment of rent. When the tenants did not vacate, the landlord filed this summary process action, and the tenants counterclaimed, alleging that the landlord failed to maintain the premises in good and habitable condition. After a trial the judge awarded the landlord possession and monetary damages of $5,241.50, plus interest and court costs. The tenants appeal from the judgment,³ arguing primarily that the judge erroneously calculated the monetary damages.

Contrary to what appears to be the tenants' position, the judge disclaimed reliance on the landlord's accounting, prepared for purposes of trial, when calculating damages. Instead, the judge made her determination as follows. After finding that the tenants' monthly rent was $650, the judge multiplied that figure by twenty-seven, the number of months that elapsed between the start of the lease and the November 2017 trial, producing a total rent due of $17,550. The judge deducted from that amount $9,676, which represented the sum of the “credible evidence that the tenant[s] ha[d] paid [in] total.” This left $7,874 as the sum of the tenants' delinquencies. The judge then found that a further reduction was warranted because the tenants “offered credible evidence of substandard conditions at the premises dating back to the inception of the tenancy.” For this reason the judge reduced the tenancy's value by fifteen percent, or $2,632.50, and deducted that amount from the delinquencies. This left the landlord with damages of $5,241.50 as of trial.

While the tenants have failed to demonstrate any mathematical errors in the judge's calculations, we agree that the judge erred in one limited respect -- namely, her finding that the tenants' monthly rent was $650 for the entire twenty-seven month period is clearly erroneous. The landlord's testimony established that the monthly rent was reduced to $625 in the winter of 2016:

Q.: “Mr. Malloy, what was the original rent?”

A.: “The original rent agreed upon at the signing of the lease was $650.”

Q.: “And did that change for any reason?”

A.: “Yes, in the winter of 2016. I offered them a reduction in rent to maintain sidewalks, offering them 625 a month to do that if they were to maintain the sidewalks.”

Q.: “And that was just for snow or was that just a reduction in the rent?”

A.: “A reduction in the rent.”

Q.: “And that remains through today?”

A.: “Correct.”

In light of this testimony, it appears that damages should have been calculated by setting the monthly rent at $650 for the sixteen months between September 2015 and December 2016 and at $625 for the remaining eleven months.⁴ We are unable to determine for certain, however, because the tenants' record appendix is incomplete; for instance, it contains no information about the postjudgment orders. See note 3, supra. We therefore conclude that it is appropriate for the judge to determine, in the first instance, whether any amendment of the judgment is appropriate.

We are unpersuaded that the judge improperly calculated or otherwise failed to credit payments that the tenants made to the landlord. Initially, we observe that we are unable to meaningfully review this claim because the tenants did not include in the record appendix copies of any of the exhibits introduced by the landlord, which appear to have included receipts and contemporaneous journal entries reflecting the payments. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995). Furthermore, in response to Braica's assertion that the landlord did not credit some payments, the judge asked on several occasions whether Braica wished to introduce supporting materials. The trial transcript does not reflect that she did so, and the judge found her unsupported assertion of additional payments not credible. “We defer to a judge's assessment of the weight of the evidence and the credibility of the witnesses.” Adoption of Larry, 434 Mass. 456, 462 (2001).

To the extent they so argue, the tenants have not shown clear error in the judge's findings pertaining to the landlord's failure to repair and the tenants' damages occasioned thereby.⁵ Nor have the tenants shown, to the extent they so argue, that the judge was biased against them or that her decisions were based on any extrajudicial source or otherwise were “influenced by any considerations other than the law.” Commonwealth v. Daye, 435 Mass. 463, 470 n.4 (2001). Finally, we do not consider the tenants' arguments, to the extent made, that the landlord violated the Federal Fair Housing Act and the Consumer Protection Act and engaged in impermissible retaliation. Because no such claims were raised to the trial judge, they are waived. See Roby v. Superintendent, Mass. Correctional Inst., Concord, 94 Mass. App. Ct. 410, 412 (2018).

So much of the judgment as awarded monetary damages, plus court costs and interest, to the landlord is vacated, and the matter is remanded for entry of a new judgment awarding the landlord monetary damages, plus court costs and interest, in a manner consistent with this memorandum and order. The remainder of the judgment is affirmed.⁶

So ordered.

Vacated in Part and Remanded; Affirmed in Part.

FOOTNOTES

3.   The trial docket shows that, after filing their notice of appeal from the judgment, the tenants filed two additional notices of appeal, neither of which appears in the record before us. The tenants have also failed to provide copies of the postjudgment orders from which they purport to appeal. See Mass. R. A. P. 18 (a), as amended, 425 Mass. 1602 (1997). See also Mass. R. A. P. 18 (a) (1) (A) (v), as appearing in 481 Mass. 1637 (2019). We further note that at least the April 11, 2018 notice of appeal appears to be untimely as no order or judgment entered on the trial docket within the preceding ten days. See G. L. c. 239, § 5 (a); Jones v. Manns, 33 Mass. App. Ct. 485, 488-489 (1992). Finally, the tenants make no comprehensible argument addressing any postjudgment orders. For these reasons we do not consider the tenants' subsequent appeals to be properly before us.

4.   This would have meant that the total rent due was $17,275. Reducing that amount by fifteen percent ($2,591.25), and deducting those amounts the tenants paid ($9,676), would have yielded a net of $5,007.75 due the landlord at the time of trial.

5.   We do not consider any materials, or any assertions by the tenants based thereon, that were not before the judge. See Delisle v. Commonwealth, 416 Mass. 359, 361 n.2 (1993).

6.   To the extent we have not addressed any of the tenants' other arguments, we have considered them and found them to be without merit.