| Mass. | Aug 18, 1986
Denise Barry (landlord) appeals from a judgment of the Housing Court Department
Rule 52 (a) mandates the court in a nonjury trial to “find the facts specially and state separately its conclusions of law thereon.”
The judge stated that “ [t]he facts support the plaintiff’s contention that the defendant breached her implied warranty of habitability. The landlord’s own testimony indicates that the work performed amounted to rehabilitation. The interference with the tenant’s right to quiet enjoyment was substantial.” The judge determined that “the landlord acted in a reckless manner by renting out an apartment in which rehabilitation was to be undertaken.” These ultimate findings are unaccompanied by any subsidiary findings of fact, although there is evidence which, if believed by the judge, supports the judge’s conclusions.
Where evidence is conflicting,
Assuming, without deciding, that the award of attorney’s fees is correct, there are no findings by the judge on what factors were used to determine the attorney’s fees. A judge must make findings on the award of attorney’s fees. See Darmetko v. Boston Hous. Auth., 378 Mass. 758" court="Mass." date_filed="1979-08-14" href="https://app.midpage.ai/document/darmetko-v-boston-housing-authority-2083013?utm_source=webapp" opinion_id="2083013">378 Mass. 758, 764 (1979); Marable v. Walker, 704 F.2d 1219" court="11th Cir." date_filed="1983-05-09" href="https://app.midpage.ai/document/sylvester-l-marable-jr-v-francis-j-walker-416759?utm_source=webapp" opinion_id="416759">704 F.2d 1219, 1222 (11th Cir. 1983).
The case is remanded to the Housing Court for further findings of fact. After the findings are filed, the losing party may appeal anew to the Appeals Court. See Mass. R. A. P. 3, as amended, 397 Mass. 1228 (1986), and Mass. R. A. P. 4, as amended, 395 Mass. 1110 (1985). This appeal is dismissed.
So ordered.
This case began in the small claims session of the Housing Court. See G. L. c. 218, § 21 (1984 ed.). Judgment entered for the tenant. Pursuant to G. L. c. 218, § 23 (1984 ed.), the landlord appealed for a trial de nova in which the finding below was treated as prima facie evidence against the landlord.
General Laws c. 186, § 14 (1984 ed.), imposes both criminal and civil penalties on a landlord who “willfully or intentionally” fails to furnish certain essential services or who “directly or indirectly interferes with the quiet enjoyment of any residential premises.” The act provides for actual and consequential damages or three months’ rent, whichever is greater, and costs, including attorney’s fees.
The rule also states that “due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” We have not decided, and we need not do so here, whether this phrase should be interpreted to exclude documentary evidence from the “clearly erroneous” standard, as was our premies practice, or whether we should follow the Federal construction of Fed. R. Civ. P. 52(a) (1985) and “apply the ‘clearly erroneous’ test ‘to all findings, regardless of the nature of the evidence.’" Strand v. Herrick & Smith, 396 Mass. 783" court="Mass." date_filed="1986-02-18" href="https://app.midpage.ai/document/strand-v-herrick--smith-2100960?utm_source=webapp" opinion_id="2100960">396 Mass. 783, 789 n.6 (1986), quoting First Pa. Mortgage Trust v. Dorchester Sav. Bank, 395 Mass. 614" court="Mass." date_filed="1985-08-08" href="https://app.midpage.ai/document/first-pennsylvania-mortgage-trust-v-dorchester-savings-bank-2102821?utm_source=webapp" opinion_id="2102821">395 Mass. 614, 621 n.11 (1985). See Anderson v. Bessemer City, 470 U.S. 564" court="SCOTUS" date_filed="1985-03-19" href="https://app.midpage.ai/document/anderson-v-city-of-bessemer-city-111373?utm_source=webapp" opinion_id="111373">470 U.S. 564 (1985).
There is conflicting evidence as to the nature and extent of the interruption of services which needs to be resolved. For example, the parties differ on the length of time the kitchen stove and sink were disconnected, the amount of debris left by the workmen, and their use of the tenant’s bathtub to clean themselves and their tools. Similarly, the parties differ on the meaning and the weight to be given to the housing inspector’s report which indicates that there were two code violations but that no action was taken because of the renovations. It is unclear whether the judge considered the report.