BETH SHEA vs. BENJAMIN O. DELANEY and another [Note 1]

KIRKMAN, J. This action arises from the rental of a furnished house in Osterville, Massachusetts, from the plaintiff to the defendants. After the defendants had vacated the premises, the plaintiff sued the defendants for $4,691.12 in the small claims session of the Quincy District Court. The claim alleged nonpayment of rent, an unpaid water bill, damage to an oil tank, cost for removal of a couch, and a dump fee. The defendants answered and counterclaimed, alleging breach of contract, breach of the right to quiet enjoyment in violation of G.L. c. 186, § 14, and a violation of G.L. c. 93A, § 9, due to an unfair or deceptive act in trade or commerce. The plaintiff answered the counterclaims and amended her complaint by adding claims of breach of contract, waste or damage to the rental property, breach of a duty of care to the furnishings provided during the rental, and equitable relief that encompassed attorney’s fees. The plaintiff claimed a trial by jury and alleged damages in the amount of $25,000.00. That amount was later amended to $50,000.00, whereupon the case was transferred to the Barnstable District Court.

After a jury-waived trial, the court found for the defendants on the plaintiff’s claims. [Note 2] The court also found for the defendants on their claim of breach of the right to quiet enjoyment in the amount of $7,500.00 (thereby trebling the monthly rental amount of $2,500.00 as allowed by statute) and awarding attorney’s fees. [Note 3] After a posttrial hearing, at which the plaintiff abandoned her right to examine witnesses, the court awarded fees in the amount of $15,678.75, plus costs of $787.50. The plaintiff appeals the awards. We find no error in the judge’s findings and rulings.

The trial court made specific findings of fact and conclusions of law in this jury-waived trial. The evidence supporting the court’s rulings is as follows. On April 28, 2010, the defendants and their two minor children, as tenants at will, moved into a single-family home in Osterville, Massachusetts, owned by the plaintiff. The defendants

Page 69

paid a monthly rent of $2,500.00, beginning May 1, 2010, through September 30, 2012. [Note 4] The house contained furniture owned by the plaintiff. In 2012, the plaintiff listed the property for sale and eventually sold it. On May 5, 2012, with permission of the defendants, the plaintiff removed some of the furniture and her personal belongings from the house. On June 19, 2012, the court found that the plaintiff, without prior notice to the defendants, showed up at the house with a U-Haul truck and three movers. The defendants were not home at the time, but their two minor children were present.

The plaintiff entered the house, without any permission, and began to remove furniture from the basement. She then proceeded upstairs and removed other furniture. She emptied one of the children’s clothes from a bureau and removed the bureau from the child’s bedroom on the second floor of the house. She also took a table from the first floor that was holding a computer and other personal items belonging to the defendants, leaving the defendants’ personal property on the floor. At no point did the plaintiff call the defendants while she was at the house with the movers and the defendants’ children.

The plaintiff claims that there was insufficient evidence to support the trial court’s finding that she breached the statutory right to quiet enjoyment. She specifically states that she was the only witness who testified and that there was “no contrary verbal testimony that the Landlord had permission to go into the home.” Therefore, her testimony must be accepted as true. The plaintiff’s argument has no merit.

Rule 52(c) of the Mass. R. Civ. P. states, “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Credibility is clearly within the purview of the trial judge. Weiler v. PortfolioScope, Inc., 469 Mass. 75, 81 (2014). Section 14 of G.L. c. 186 provides, in relevant part, that “any lessor or landlord who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant” may be liable for at least three times the monthly rent. The covenant of quiet enjoyment protects a tenant’s right to freedom from “substantial injury to the tenant in the peaceful enjoyment of the demised premises.” Manzaro v. McCann, 401 Mass. 880, 884 (1988), quoting Winchester v. O’Brien, 266 Mass. 33, 37 (1929). “It is not necessary to recovery that the landlord intended to violate the covenant. Rather ‘the landlord’s conduct, and not [her] intentions, is controlling.’” Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982), quoting Blackett v. Olanoff, 371 Mass. 714, 716 (1977). In the present case, the trial judge found that the plaintiff entered the rental premises without prior notice or permission and started removing furniture and moving the personal property of the defendants out of the way to facilitate the move. There were three movers with her, and the minor children were the only ones home. By her findings, the judge clearly found the self-serving statement that the plaintiff had prior approval to enter the home without any notice not to be credible. The remaining evidence satisfies the proof required for a finding that the plaintiff breached the right of quiet enjoyment guaranteed by G.L. c. 186, § 14.

Upon a violation of the statute, the breaching party shall be liable for a reasonable attorney’s fee, including fees for the costs of an appeal. Id.; Yorke Mgt. v. Castro,

Page 70

406 Mass. 17, 19 (1989); Darmetko v. Boston Hous. Auth., 378 Mass. 758, 763 (1979). The amount to be awarded lies within the discretion of the judge based on several factors, including “the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.” Berman v. Linnane, 434 Mass. 301, 303 (2001), quoting Linthicum v. Archambault, 379 Mass. 381, 388-389 (1979). It is not required that the judge review and allow or disallow each individual item submitted in support of the fee request; rather, the judge may consider the bill as a whole. Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 431 (2005); Berman, supra.

In this case, the court awarded fees of $15,678.75. The plaintiff claims that this award is excessive. In view of the itemized submissions to the trial judge by the defendants’ attorney, the judge did not abuse her discretion in awarding the amount in the judgment. Simon v. Solomon, 385 Mass. 91, 113 (1982). And as stated above, the defendants are also entitled to costs of defending this appeal.

The defendants have petitioned this Division for their attorney’s fees at pages 16-18 of their brief. The defendants may submit to this Division within fourteen days of this opinion the details of hours spent and the nature of the work performed with appropriate back-up material. Within fourteen days of filing and service, by first-class mail, upon the plaintiff, the plaintiff may file a written response. Yorke Mgt., supra at 20.

The judgment of the trial court is affirmed.