KATRINA PIMENTAL & Another v. CHRISTINA GALARZA. ( 2023 )

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
22-P-151
KATRINA PIMENTAL & another1
vs.
CHRISTINA GALARZA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a judgment of the Housing Court
that awarded the plaintiffs possession of their rental unit, as
well as damages due to the defendant's failure to pay rent. The
defendant primarily contends that the judge erred in ruling
against her defense under G. L. c. 239, § 8A, and in concluding
that the plaintiffs had not breached the warranty of
habitability or covenant of quiet enjoyment. The defendant also
claims that the plaintiffs engaged in a retaliatory eviction.
We affirm.
Background.2 Beginning in January of 2019, the defendant
rented a first-floor apartment in the plaintiffs' Fall River
1 Christopher Barroso.
2 We summarize the facts found by the judge, supplemented as
needed by the trial evidence, reserving some details for later
discussion.
home.3 The plaintiffs reside on the second floor of the home and
have since approximately 2015. The terms of the defendant's
tenancy required her to pay $960 in rent on the first day of
each month.
The defendant failed to pay rent for December of 2019 and
January of 2020. Throughout January and into early February of
2020, the plaintiffs inquired frequently, by text message, as to
when they could expect payment. During that time, the defendant
invariably responded that payment would be forthcoming, and she
raised no concerns about the condition of the apartment.
The situation came to a head in February. On February 5,
2020, the defendant first expressed concerns about high
electricity bills, attributing the cost to the use of electric
heaters when her heat was being converted from oil to gas in
December of 2019. That same day, the plaintiffs told the
defendant that she would have to leave the apartment if her
arrears continued. On February 13, 2020, after continued
conversations about the defendant's nonpayment, the plaintiffs
told the defendant that she would need to move out. At that
point, the defendant was three months in arrears. In a response
that same day, the defendant raised new concerns about rodents
3 The defendant had rented the apartment for some time prior, but
the plaintiffs did not purchase the property until January of
2019.
2
and defective electrical outlets and indicated, for the first
time, that she had been withholding her rent due to the
conditions of the apartment.4 The plaintiffs reiterated their
request that the defendant vacate the apartment.
The defendant did not leave, prompting the plaintiffs to
serve the defendant with a fourteen-day notice to quit on March
3, 2020, due to her continued arrears. The plaintiffs then
initiated this summary process action on March 20, 2020. The
defendant answered, asserting, as relevant here, a defense that
she properly withheld rent as contemplated by G. L. c. 239,
§ 8A, and counterclaims for (1) breach of the warranty of
habitability, (2) breach of quiet enjoyment, and (3) retaliatory
eviction. Trial was held on December 22, 2020, at which the
defendant represented herself.
The trial judge issued his findings, ruling, and order for
entry of judgment on January 7, 2021, awarding the plaintiffs
possession of the apartment and damages. He also entered
judgment in favor of the plaintiffs on the defendant's
counterclaims. The defendant timely appealed.
4 Also on February 13, the defendant indicated for the first time
that she had requested that the city of Fall River inspect her
unit. The inspection took place on February 25, 2020, and
revealed minor issues with electrical outlets and a cracked
bathtub that needed to be remedied for the apartment to comply
with the State Sanitary Code. The plaintiffs promptly addressed
those issues.
3
Discussion. The defendant argues that the judge erred in
rejecting her G. L. c. 239, § 8A defense, and in ruling against
her on her counterclaims, primarily contending that the judge's
conclusions were not supported by the evidence. In reviewing
the trial judge's decision, "'we accept [the judge's] findings
of fact as true unless they are clearly erroneous,' but 'we
scrutinize without deference the legal standard which the judge
applied to the facts.'" Cambridge St. Realty, LLC v. Stewart,
481 Mass. 121, 123 (2018), quoting Andover Hous. Auth. v.
Shkolnik, 443 Mass. 300, 306 (2005).
The defendant first argues that the judge was wrong to
reject her G. L. c. 239, § 8A defense. In particular, the
defendant challenges the judge's finding that she did not
provide sufficient notice to the plaintiffs that she was
withholding rent due to the condition of her apartment. We
perceive no error. Although § 8A provides tenants with a
defense in summary process actions where they have withheld rent
because of "the condition of the premises," see G. L. c. 239,
§ 8A, that defense is available only if the tenant "compl[ies]
with [the statute's] procedural requirements." See Jablonski v.
Casey, 64 Mass. App. Ct. 744, 749-750 (2005). One such
requirement is that the landlord "knew of [the poor] conditions
before the tenant . . . was in arrears in h[er] rent." See
G. L. c. 239, § 8A. In other words, "[t]he landlord . . . must
4
be notified of any such condition before the tenant is allowed
to withhold." Jablonski, supra at 749.
Here, the judge found that the defendant did not notify the
plaintiffs of the alleged poor conditions prior to missing her
rental payments. That finding was not clearly erroneous;
indeed, it is amply supported by the evidence. See Jablonski,
64 Mass. App. Ct. at 749. The primary condition that the
defendant argues justified her nonpayment was a purported issue
with her heat that arose in December of 2019, when the heat in
the defendant's unit was being converted from oil to gas.
Notably, it is undisputed that this condition did not arise
until December 13, 2019 -- after the defendant should have paid
December's rent.5 More importantly, however, there was no
evidence that the defendant informed the plaintiffs that she was
withholding rent due to any condition, heat related or
otherwise, prior to missing her December and January rent
payments.6 To the contrary, the defendant repeatedly represented
5 The issue was first identified when the defendant was refused a
heating oil delivery due to the state of her oil tank. The
plaintiffs promptly addressed the issue, completing the
conversion on December 28, 2019. That condition thus no longer
existed as of the date January's rent was due.
6 The defendant argues that "she verbally notified the plaintiffs
of her intent to withhold in order to obtain assistance with her
electric bill" -- which she claims was excessive due to the use
of portable heaters during the heat conversion -- "and minor
repairs associated" with violations of the State Sanitary Code.
The defendant made similar statements during her cross-
examination of the testifying plaintiff and in her closing
5
in text messages throughout January and into February of 2020
that payment would be forthcoming, once she received monies that
she was owed from others. See Jablonski, supra at 749.
The defendant next argues that the judge's ruling
dismissing her warranty of habitability and quiet enjoyment
counterclaims was contrary to the evidence. The warranty of
habitability requires "that at the inception of the rental there
are no latent (or patent) defects in facilities vital to the use
of the premises for residential purposes and that these
essential facilities will remain during the entire term in a
condition which makes the property livable" (citation and
quotation omitted). Boston Hous. Auth. v. Hemingway, 363 Mass.
184, 199 (1973) (Hemingway). It "applies only to 'substantial'
violations or 'significant defects'" (citation omitted).
Goreham v. Martins, 485 Mass. 54, 65 (2020). Similar to the
warranty of habitability, "[t]he covenant of quiet enjoyment
protects a tenant's right to freedom from serious interference
with h[er] tenancy -- acts or omissions that impair the
character and value of the leased premises." Doe v. New Bedford
remarks (which the judge appeared to treat as testimony).
However, the judge "did not find the testimony . . . to be
credible." Of course, "the credibility of the witnesses rests
within the purview of the trial judge." Weiler v.
PortfolioScope, Inc., 469 Mass. 75, 81 (2014).
6
Hous. Auth., 417 Mass. 273, 285 (1994). See G. L. c. 186,
§ 14.
The defendant primarily argues that, because of the
December 2019 heating conversion, her apartment was so
inadequately heated as to constitute a violation of the warranty
of habitability and the covenant of quiet enjoyment. The judge
found, however, that the plaintiffs provided the defendant with
temporary heating units during the conversion that "adequately
addressed any temporary heating deficiency" such that "there was
no material impact on the habitability of the premises." That
finding was not clearly erroneous. See Jablonski, 64 Mass. App.
Ct. at 747. Although the defendant testified below (and argues
here) that the heating units the plaintiffs provided were
insufficient, the judge was not required to accept that
testimony.7 See Weiler v. PortfolioScope, Inc., 469 Mass. 75, 81
(2014). And his conclusion to the contrary is well supported,
not only by the plaintiffs' testimony but also by the evidence
that the defendant did not contemporaneously complain to the
plaintiffs that the units were ineffective. See Hemingway, 363
7 The defendant has moved to expand the record to submit
additional evidence on this and other issues. Because our
review is limited to the record before the trial judge, that
motion is denied. See Commonwealth v. Abdul-Alim, 91 Mass. App.
Ct. 165, 171 n.6 (2017).
7
Mass. at 200-201 (whether landlord received notice is a relevant
factor).8
Finally, we see no error in the entry of judgment for the
plaintiffs on the defendant's retaliatory eviction claim under
G. L. c. 239, § 2A. That statute creates a presumption of
retaliation where a summary process action is initiated within
six months of the tenant seeking to enforce governmentally
prescribed housing standards. G. L. c. 239, § 2A. This
presumption, however, is rebuttable
"by clear and convincing evidence . . . that the plaintiff
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, even
if the tenant had not . . . made such report . . . ."
Id. Accordingly, to rebut the presumption landlords must show
that they (1) had an independent justification to initiate
summary process proceedings and (2) would have done so "in the
same manner and at the same time" even if the tenant had not
8 The same holds true of the other alleged defects and conditions
that the defendant contends required a ruling in her favor.
Those include a series of purported defects that allegedly
existed at various times in 2019 and 2020 -- concerning rodents,
electrical outlets, a door, radiators, bathroom flooding, and
problems with hot water. Upon review of the record before us,
there is no indication that the alleged defects were so
substantial as to affect the apartment's livability or that they
seriously interfered with the defendant's tenancy. Tellingly,
none of the defects were referenced in the text message
exchanges about the rent in December and January. Moreover, it
appears that each alleged defect was promptly remedied, as the
trial judge found.
8
reported the noncompliant conditions. See South Boston Elderly
Residences, Inc. v. Moynahan, 91 Mass. App. Ct. 455, 468-469
(2017) (addressing identical language in G. L. c. 186, § 18).
Here, the presumption applies because the plaintiffs
initiated this action within one month of the defendant's
complaint to the city of Fall River. Although the judge made no
explicit findings about whether the plaintiffs rebutted that
presumption, the plaintiffs argued before him that they had,
citing the evidence of nonpayment of rent, and their repeated
requests for payment and then, for the defendant to vacate. In
entering judgment for the plaintiffs, the judge implicitly found
that they had rebutted the presumption. See Commonwealth v.
Holmes, 46 Mass. App. Ct. 550, 559 (1999) ("unnecessary to
remand for an explicit ruling for what was undoubtedly
implicit"). And this implicit finding was supported by the
evidence. See Biliouris v. Biliouris, 67 Mass. App. Ct. 149,
164 (2006) ("implicit finding" not "clearly erroneous"). There
was testimony that the plaintiffs initiated this action solely
because of the defendant's nonpayment, a sufficient independent
justification. See Youghal, LLC v. Entwistle, 484 Mass. 1019,
1024 (2020). There was also testimony and text messages
indicating that the plaintiffs asked the defendant to vacate
before the defendant's inspection request, supporting that the
plaintiffs would have initiated this action when they did even
9
in its absence. We accordingly see no clear error in the
judge's ruling.9
Judgment affirmed.
By the Court (Wolohojian,
Englander &
D'Angelo, JJ.10),
Clerk
Entered: February 28, 2023.
9 Because the defendant did not prevail on appeal, we deny her
request for attorney's fees and costs. The defendant has also
filed a document titled "appellant's request for criminal
charges of perjury," asking that we "find the [plaintiffs]
guilty of perjury." Treating the request as a motion to this
court (and without meaning to suggest that such a request is
within our purview), the motion is denied.
10 The panelists are listed in order of seniority.
10