MOORE v. GARZA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Jessee Garza and Marcia Pierce (tenants) filed a civil action against Elaine M. Moore and Matthew E. Moore (collectively, landlords), alleging breach of the warranty of habitability, and related claims. The tenants' allegations centered on a severe bed bug infestation in their apartment, which persisted for several months. Subsequently, the landlords brought a summary process action due to unpaid rent.

The two cases were consolidated, and tried without a jury before a Housing Court judge. The judge awarded $2,950 in unpaid rent to the landlords, and $18,000 total in damages to the tenants -- for breach of the warranty of habitability, retaliation under G. L. c. 186, § 18, and intentional infliction of emotional distress, among other violations. Elaine M. Moore (landlord) appeals. We affirm in substantial part, while vacating one aspect of the damages awarded to the tenants.

Discussion. 1. Jury trial right. The landlord first argues that she was improperly denied the right to a jury on the tenants' claims. It is true that the landlord requested a jury in her pleadings responding to the tenants' civil action, and that she was entitled to a jury with respect to some of those claims. However, when the trial commenced in the Housing Court the landlord was present and representing herself, and of course, there was no jury. Nevertheless, the landlord did not raise her request for a jury at any point during the trial. Indeed, the landlord did not raise her request for a jury until her motion to reconsider, after the judge had rendered judgment. The judge accordingly held that the jury right was waived.

On appeal the landlord relies on Cort v. Majors, 92 Mass. App. Ct. 151 (2017), and Mass. R. Civ. P. 39 (a), as amended, 450 Mass. 1403 (2008), and argues that her jury right could not be waived absent a written stipulation by her, or an oral stipulation in open court. Cort is distinguishable, however, because in that case the party that had requested a jury raised her jury request during trial, before the judge had ruled. 92 Mass. App. Ct. at 152. Indeed, this court's opinion in Cort anticipated and distinguished the circumstances presented here, noting that a party can waive its jury right, even absent an express stipulation, where the party completes the entire trial without raising their request for a jury. Id. at 154 n.4.

A party cannot wait to raise the jury issue until after trial has ended and the judge has ruled against them. Regardless of the importance of the jury right, that right cannot be invoked so as to give a litigant two shots at their own claim -- one with a judge, and if unsuccessful, then with a jury. The issue was waived here. See Cort, 92 Mass. App. Ct. at 154 n.4, citing Casperone v. Landmark Oil & Gas Corp., 819 F.2d 112, 116 (5th Cir. 1987); CoxCom, Inc. v. Chaffee, 536 F.3d 101, 110-111 (1st Cir. 2008). See also Henderson v. D'Annolfo, 15 Mass. App. Ct. 413, 425 n.16 (1983).

2. G. L. c. 186, § 18. The judge found that the landlords violated c. 186, § 18, by retaliating against the tenants because, among other things, the tenants raised the bed bug issue and reported it to the local board of health. The judge specifically found that the tenants raised the bed bug issue orally during a meeting on August 4, 2017, and that “immediately” thereafter, on that same evening, the landlords served the tenants a notice to quit.

On appeal the landlord argues that her action in serving the notice to quit could not violate c. 186, § 18, because her service of the notice to quit occurred before the tenants had reported the issue to the board of health or made a complaint to her in writing. The argument is based upon a parsing of the language of § 18, and there is no record that it was made to the Housing Court judge. Accordingly, it is likely waived. See Trustees of Stigmatine Fathers, Inc. v. Secretary of Admin. & Fin., 369 Mass. 562, 565 (1976). Even if the issue were properly preserved, however, we would not agree with the landlord's narrow construction of the statute's language. In particular, the statute prohibits a landlord from “tak[ing] reprisals against any tenant of residential premises” for “reporting to the board of health ․ a violation ․ of any health ․ code ․ or any other municipal by-law or ordinance, or state ․ law or regulation which has as its objective the regulation of residential premises.” The landlord served the notice to quit immediately after the tenants stated to her they would report the bed bug condition to the board of health. The language of § 18 was satisfied under the circumstances, as with respect to complaints to a board of health there is no requirement of a prior written notification to the landlord, and the evidence amply supported a finding that the landlord retaliated based upon the tenants' stated intention to report the bed bug condition to the board. We reject the contention that the statute does not apply if the landlord retaliates so quickly that the tenant has not yet completed the complaint. See South Boston Elderly Residences, Inc. v. Moynahan, 91 Mass. App. Ct. 455, 467-469 (2017) (discussing § 18 and determining landlord retaliated).

3. Breach of warranty of habitability. The judge found a breach of the warranty of habitability due to a bed bug infestation on the premises during five months, from August through December of 2017. As a result the judge reduced the rent by fifty percent for each of those five months. The landlord challenges those findings as clearly erroneous. In particular, the landlord argues that there was an October 11, 2017 report of the Fitchburg Board of Health, which specifically found the property in compliance with health regulations as of that date, and which the judge did not address.

The Fitchburg Board of Health letter was not part of the trial record, however, and so the judge committed no error in that regard. Furthermore, there was sufficient evidence in the record for the judge to find, based upon the testimony of the tenants, and the exhibits, that the premises were infested during the months of August, September, October, and November. See Smaland Beach Ass'n, Inc. v. Genova, 94 Mass. App. Ct. 106, 114 (2018) (evidence sufficient to sustain judgment where “any combination of circumstances could be found from which a reasonable inference could be drawn” supporting judgment [quotation omitted] ).

The judge's award for December, however, was not supported by the record. There was no evidence of a bed bug infestation in December; a pest control inspection on December 5 found no living bed bugs. Even more to the point, the tenants conceded there was no issue in December. As one tenant testified, the tenants did not withhold December rent because by then “the conditions [in the apartment] were correct.”

Accordingly, we vacate so much of the judgment of March 27, 2018, that found a breach of the warranty of habitability for the month of December, awarded the tenants fifty percent of the rent for December ($450), and doubled that amount under G. L. c. 93A. We modify the judgment to reduce the amount of the judgment awarded to the tenants by $900. As so modified, the judgment is affirmed.

So ordered.

vacated in part; affirmed in part