Gokey v. Bessette

• Decision Date: 13 July 1990
• Docket Number: No. 88-068,88-068
• Citation: 154 Vt. 560,580 A.2d 488
• Parties: , 23 A.L.R.5th 887 Stan GOKEY v. Donald BESSETTE and Gail Bessette.
• Court: Vermont Supreme Court

Page 488

580 A.2d 488

154 Vt. 560, 23 A.L.R.5th 887

Stan GOKEY v. Donald BESSETTE and Gail Bessette.

No. 88-068.

Supreme Court of Vermont.

July 13, 1990.

Saxer, Anderson, Wolinsky & Sunshine, Richmond, for plaintiff-appellant.

Harley G. Brown III, Richmond, for defendants-appellees.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

GIBSON, Justice.

Plaintiff landlord, who brought an action for unpaid rent, appeals from a district court decision denying relief and awarding defendant tenants damages and attorney's fees for breach of an implied warranty of habitability and retaliatory eviction. We affirm in part and reverse in part.

I.

The parties entered into an oral agreement for the rental of a mobile home starting in September of 1985 at a monthly rent of $400. The tenants paid for electric service to the mobile home, but the landlord paid for the electricity for a nearby barn, in which the tenants were allowed to store their freezer.

The trial court found that during the tenancy a variety of problems developed, including water leakage into the home through the roof, which was fixed by the tenants, power failures due to a faulty transformer, and a furnace breakdown. More serious was a break in the sewer line serving the premises, which remained unresolved from February to June of 1986 and resulted in water surfacing from the system. The trial court found that the "landlord's response [fell] short of an adequate response. Foul odor filled the trailer and unhealthy fluids lay underneath the trailer for long periods of time." Defendants stopped paying rent as of June 1, 1986. The court found that final repair to the septic system came later in June, 1986, only after a visit from the town health officer, prompted by defendants. On June 6, 1986, prior to the repair, plaintiff gave notice to quit, effective August 1, 1986. The court found that after defendants stopped paying rent, plaintiff locked the barn where the freezer was located and shut off the power, causing the loss of $300 worth of food. Defendants vacated the premises on October 31, 1986, approximately one month after the plaintiff had sold the mobile home.

Plaintiff thereafter sued for unpaid rent, and defendants counterclaimed for damages, alleging violations of plaintiff's duty to provide habitable premises. The court concluded that because of the failure to correct the sewage problem and other continuing defects, plaintiff had violated his warranty of habitability, validating defendants' claim to return of the rent paid for the period from February to June, 1986, some $1600. In addition, the court awarded defendants $300 for the loss of the freezer food, $800 for the "discomfort and distress for the lockout of the barn for the months June to October, 1986," $1600 for the retaliatory eviction under 9 V.S.A. *491s 4465, ¹ and $700 in attorney's fees, for a total of $5,000. Plaintiff contends that the total award was actually $6,600, since the $5,000 total does not include the forgiveness of rent due for June through September, 1986, resulting from dismissal of plaintiff's complaint. The present appeal followed.

II.

Plaintiff argues first that the trial court erred in concluding that the eviction was retaliatory simply because it followed defendants' complaints to the town health officer about the sewage problems. He maintains that he effected the repairs promptly and that they were approved by the town health officer. The eviction, he argues, was the result of nonpayment of rent.

Defendants do not deny that the timing of the complaint to the health officer and of the eviction notice were central to the court's decision on retaliatory eviction, but they respond that the events, taken as a whole, amply support the court's conclusion that the eviction was in retaliation for notification of the health officer. We agree. The trial court found that plaintiff had failed to comply with his duty to provide a habitable dwelling. Consequently, the withholding of the rent, which occurred after four months of inaction by plaintiff and prior to the repair, was allowable under our holding in Hilder v. St. Peter, 144 Vt. 150, 162, 478 A.2d 202, 209-10 (1984), and under 9 V.S.A. § 4458(a)(1). Plaintiff's argument that eviction was for the nonpayment of rent would appertain only if the trier of fact had concluded that there had been no breach of the landlord's duties. Cf. Vold v. Marathon Oil Co., 407 F.Supp. 1011, 1018-19 (W.D.Ky.1975) (action of landlord in insisting on minimum monthly rental payments on quarterly basis not contrary to statutory purpose, and later filing of forcible detainer was not retaliatory). The trial court made detailed findings to the contrary, however; absent a showing that these findings were not supported by credible evidence or that the trial court abused its discretion in concluding that the landlord had violated his statutory and contractual obligations to defendants, these findings must stand. Gallagher v. McCarthy, 148 Vt. 258, 263, 532 A.2d 557, 559-60 (1987).

Given the findings that plaintiff had failed to perform his obligations to defendants and that defendants were justified in withholding their rent payments, the trial court could reasonably conclude that the eviction was retaliatory. See 9 V.S.A. § 4465(a)(2). In urging that he believed he had legal basis for the eviction--the nonpayment of rent--and, consequently, intended no retaliation, plaintiff argues for a subjective test for a retaliatory eviction. While animus or bad motive may properly be considered in evaluating what is "retaliatory," the statute does not contemplate use of a subjective test. A subjective test would effectively establish such a high burden of proof for tenants that the benefit the Legislature intended to confer would be an illusion. In determining what is and is not retaliatory, the events must speak for themselves. See Smith v. D.C. Rental Accommodations Comm'n, 411 A.2d 612, 616 n. 7 (D.C.1980) (upon learning that tenant complained to housing inspector, landlord's immediate response--"I want your apartment by August first"--was sufficient to support allegations of retaliatory eviction); Spencer v. Blackmon, 22 Ohio Misc.2d 52, 53, 490 N.E.2d 943, 945 (Mun.Ct.1985) (landlord's attempt to evict tenant for failure to provide passkey for lock installed by tenant was retaliatory as a matter of law).

In the present case, the eviction action against defendants followed a long course of disagreements over the condition of the rental premises, generated by plaintiff's failure to provide habitable premises. See Hilder v. St. Peter, 144 Vt. at 159, 478 A.2d at 208. There was ample evidence to support the trial court's conclusion that the eviction action and the closure of access to the barn--which constituted "changing terms of a rental agreement" within the meaning of 9 V.S.A. § 4465(a)--were retaliatory. If plaintiff simply wished to recover the rent he believed due him, and which defendants had withheld after June 1, 1986, he could have limited his action to that claim. It is not the purpose of § 4465 to bar a landlord from bringing a good-faith action to recover unpaid rent. Plaintiff, however, having failed to provide habitable premises and having conceded that significant corrective action was eventually required, should not be surprised that the court would construe as retaliatory his attempt to oust his tenants after four months of contention over the condition of the premises.

III.

Plaintiff next argues that since he repaired the sewer system within a reasonable time, the court erred in awarding damages for breach of the implied warranty of habitability. In essence, plaintiff argues that he fixed the premises within a reasonable time after notice. The trial court found otherwise based on ample evidence to support its finding that, due to the septic system failure, the want of proper heating, and a leaky roof, plaintiff had failed to maintain habitable premises.

IV.

Plaintiff also asserts that the damages awarded by the trial court were not supported by the evidence or the law. His principal argument is that the trial court awarded $1600 twice, once for the "discomfort of living in an unsanitary dwelling from...