Opinion
No. 13–P–223.
2013-12-13
MML CORPORATION v. Roger COUTURE & another.
By the Court (COHEN, MEADE & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
MML Corporation (MML) initiated this summary process action against Roger and Elizabeth Couture (Coutures or tenants) claiming multiple violations of the parties' long-term lease agreement. After a bench trial, a judge of the Northeast Housing Court found substantial and material breaches of paragraphs 11 (repair policy), 18 (lock policy) and 24 (payment of utilities) of the lease, and awarded possession to MML. The Coutures maintain there was no breach of the lease, and that if there was a breach, it was either waived, excused, or in contravention of an unenforceable lease provision. We affirm.
Discussion. We accept the judge's findings of fact unless clearly erroneous. See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). In particular, we respect the judge's assessment of witness credibility and examine the legal standard applied by the judge to the facts. See Andover Hous. Authy. v. Shkolnik, 443 Mass. 300, 306 (2005); Boston Hous. Authy. v. Bridgewaters, 69 Mass.App.Ct. 757, 762 (2007), S. C., 452 Mass. 833 (2009)(reversing on other grounds). 1. Breach. a. Repair policy. The Coutures contend that the judge's finding that they breached the repair policy of the lease was not supported by the evidence. The lease obligated the Coutures to manage and care for the entire property over the course of the twenty-five year tenancy. The lease provided that “[ u]nder no circumstances ” would MML be responsible for the expenses of any repairs or improvements unless it consented to such responsibility in advance and in writing. The judge found that on numerous occasions the Coutures refused to pay repair bills in contravention of the repair policy and that as a result of these breaches MML incurred significant expenses. See DiBella v. Fiumara, 63 Mass.App.Ct. 640, 646–648 (2005). The judge's finding that the Coutures breached the lease's repair policy and that this breach was material was supported by evidence and not clearly erroneous. See ibid.
The Coutures further claim that if there was a breach of the repair policy it was not intentional and was the result of a mistaken belief that the lease had been terminated, a belief induced by the actions of Margaret Lopez, president and treasurer of MML, who testified that she mistakenly assumed that the lease had been terminated as a result of the defendants' breaches. Whether viewed as a claim of mutual mistake or detrimental reliance, the claim is unavailing because the judge found no such mistake was made. Roger Couture testified that he considered the lease to be valid at all relevant times, and the judge did not credit the testimony that the Coutures' breaches were the result of mistake.
b. Lock policy. The tenants challenge the judge's conclusion that they had breached the lock policy provision of the lease on the basis that there was insufficient evidence of the breach, and that if there was any breach, it was immaterial. Lopez testified that when MML purchased the property, she requested duplicate keys to the premises, and the Coutures, the former owners and current occupants of the three-family building, responded, “No, you cannot have copies of the key. You cannot have a key.”
Lopez also testified that this provision meant that the tenants were required to provide duplicate keys for all locks, not exclusively those that were recently installed. The finding that the Coutures breached the lock policy provision of the lease was supported by the evidence and not erroneous.
Roger Couture admitted that he did not give MML keys to the premises. He claimed that MML, which purchased the property from the foreclosing bank in 1994, never asked him for keys to the premises. It was for the judge to resolve the credibility dispute as to whether a request was made, and whether the lease provision was intended to cover both existing and new locks.
A lease provision is material if it is “an essential and inducing feature” of the lease. DiBella, 63 Mass.App.Ct. at 646, quoting from Bucholz v. Green Bros. Co., 272 Mass. 49, 52 (1930). The question of materiality is one of fact for the judge, whose finding must stand unless clearly erroneous. See ibid. The judge's finding that access to the leased premises was an essential and inducing feature of the lease was not clearly erroneous.
2. Waiver. The Coutures contend that MML waived its right to challenge their breach of the lease by tolerating the breaches for a period of several years. The judge did not find that a waiver occurred. “Waiver is the intentional relinquishment of a known right.” State Room, Inc. v. Ma–60 State Assocs., 84 Mass.App.Ct. 244,252 n. 13 (2013), quoting from Normandin v. Eastland Partners, Inc., 68 Mass.App.Ct. 377, 388 (2007). See Corcoran Mgmt. Co. v. Withers, 24 Mass.App.Ct. 736, 745 (1987) (“the landlord never intended to waive the landlord's right to possession and did not in fact waive the right to possession” by accepting rental payments after tenancy validly terminated). As the Coutures acknowledged, the lease they signed contained an antiwaiver provision which stated that any failure by MML to exercise its rights “shall not act as a waiver of those or any other rights.” The provision further provided that “[n]o statement or promise by [MML]'s agents ... as to tenancy, repairs, amount of lease to be paid or other terms and conditions shall be binding unless it is put in writing and made a specific part of this agreement.”
There is no writing to support the Coutures' claim that MML waived its rights to enforce the lease. Although we do not decide the point, even if we were to assume that the writing requirement could have been modified by the conduct of the parties, the judge did not credit Roger Couture's testimony that Lopez told him not to worry about bills or about reimbursing MML for repairs and improvements.
The judge's assessment of Couture's credibility is entitled to deference. See Browning–Ferris Indus., Inc. v. Casella Waste Mgmt., 79 Mass.App.Ct. 300, 307–308 (2011).
Recalled to rebut Couture's testimony, Lopez testified that she had no memory of making the statements which Couture attributed to her.
3. Illegality of water and sewage provisions. Relying on an advisory ruling of the Department of Health, written by Donna E. Levin, General Counsel (July 3, 1990), the tenants claim that the lease provision requiring them to pay for water and sewage was illegal under Massachusetts law at the time the lease was signed, and was unenforceable against them. See 105 Code Mass. Regs. 410.180 (1994). This claim was not addressed by the judge and there is no indication in the record that this claim was advanced before judgment issued.
See R.W. Granger & Sons v. J & S Insulation, Inc., 435 Mass. 66, 73–74 (2001) (appellate court has no obligation to consider the merits of issues first raised postjudgment). Even if this claim was properly preserved and the lease provision was unenforceable, a question we do not reach, the lease contained a severability provision giving the remaining provisions full force and effect. See, e.g., Leinas v. Liberty Mut. Ins. Co., 37 Mass.App.Ct. 952, 953 (1994). The other grounds on which the judge's decision were based are independently adequate to sustain a finding that the Coutures had materially breached their lease.
The defendants cite to their posttrial memorandum, which is undated and does not contain a certificate of service. According to the docket, the memorandum was filed a week after judgment issued, the same day as the defendant's notice of appeal.
Judgment affirmed.