KATRINA PIMENTAL & Another v. CHRISTINA GALARZA.

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