NOLAN v. MOREHOUSE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is a summary process case in which the tenant, Lloyd Morehouse, appeals from a judgment in favor of the landlord after a jury trial in the Housing Court. On appeal, he claims that some of his counterclaims were improperly dismissed, and that the jury should have found in his favor on his retaliation claim and suit for possession and damages. We affirm.

The landlord terminated the tenancy at the expiration of the lease. Before trial, the judge denied the landlord's motion for summary judgment, ruling that the landlord terminated the tenancy correctly but that the landlord's entitlement to possession turned upon resolution of the tenant's counterclaims and defenses. Meikle v. Nurse, 474 Mass. 207, 208 (2016). The trial judge therefore determined that the correctness of the method of termination was established, but set the counterclaims for trial.

On pretrial motions filed by the landlord, the trial judge dismissed the discrimination and G. L. c. 93A counterclaims because the tenant did not include these claims as issues to be tried in his pretrial statement. After the close of the evidence the judge allowed motions for a directed verdict on the counterclaims for retaliation and violations of the security deposit law. The case went to the jury on the tenant's claims of breach of the covenants of quiet enjoyment and habitability. After approximately thirteen minutes of deliberation, the jury returned a verdict for the landlord.

The pro se tenant has filed a skeletal brief without any citations to the record, or meaningful argument in support of his position. In this sense, the brief does not rise to the level of appellate argument, and we may affirm on that basis alone. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019); Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 540 (2014) (“Where ․ an argument merely asserts error without sufficient legal argument, this standard [as found in Mass. R. A. P. 16 (a) (9)] is not met”).

However, even if we consider the tenant's arguments, his claims have no merit. The judge did not abuse his discretion in dismissing the claims that were not presented in the pretrial statement. See Mass. R. Civ. P. 16, as amended, 466 Mass. 1401 (2013); Slade v. Slade, 43 Mass. App. Ct. 376, 378-379 (1997). The retaliation and security deposit claims were properly dismissed after the close of the evidence. In order to make out a claim for retaliation, the tenant must show that he reported the condition to a government board or agency, or filed a written complaint with the landlord before the act of retaliation alleged, here the notice to quit. G. L. c. 186, § 18; G. L. c. 239, § 2A; Manzaro v. McCann, 401 Mass. 880, 883 (1988). The tenant's testimony was that he made verbal complaints to the landlord before the notice to quit was sent. Accordingly, the judge did not err in dismissing this claim.³

With respect to the security deposit, the evidence at trial was that the security deposit was returned, with interest, within thirty days of demand and while the tenant was still in possession. See G. L. c. 239, § 15B (3) (a). Therefore, even if there were a defect in the receipt (which was disputed), and even if that defect formed the basis for a claim for treble damages under G. L. c. 239, § 15B (7) (a question we do not decide), the landlord timely cured the defect upon return of the deposit with interest to the tenant, who as of trial had not moved out of the apartment. The tenant was not entitled to any other relief. See Castenholz v. Caira, 21 Mass. App. Ct. 758, 763 (1986).⁴

With respect to the two claims that were submitted to the jury, it was for the jury to decide whether the tenant's claims of major and significant defects were true, and thus rendered the apartment uninhabitable, or that there were bedbugs, leaking windows, lack of heat, and other conditions that interfered with his quiet enjoyment of the apartment. See G. L. c. 186, § 14; Clark v. Leisure Woods Estates, Inc., 89 Mass. App. Ct. 87 (2016); Jablonski v. Casey, 64 Mass. App. Ct. 744, 747-748 (2005). The jury rejected these contentions. The jury were the ultimate fact finder, and questions of the weight of the evidence and credibility were for the jury to resolve. See Chervin v. Travelers Ins. Co., 448 Mass. 95, 111 (2006); Okoli v. Okoli, 81 Mass. App. Ct. 371, 379 (2012). We will not disturb the jury's verdict on appeal.

Judgment affirmed.

FOOTNOTES

3.   There was evidence of complaints made to the city after the notice to quit was received.

4.   This case is therefore unlike both Castenholz, supra, and Meikle, 474 Mass. 207, where there were violations of the security deposit statute that were not or could not be remedied.