Haddad v. Gonzalez

• Decision Date: 12 August 1991
• Citation: 410 Mass. 855,576 N.E.2d 658
• Parties: Nick HADDAD v. Luz GONZALEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 658

576 N.E.2d 658

410 Mass. 855

Nick HADDAD v. Luz GONZALEZ.

Supreme Judicial Court of Massachusetts Suffolk.

Argued April 4, 1991.

Decided Aug. 12, 1991.

F. Anthony Mooney, Boston (Jerry E. Benezra with him), Melrose, for plaintiff.

Lori Weiner Lander (Gary Bellow with her), Boston, for defendant.

GREANEY, Justice.

After her landlord, the plaintiff Nick Haddad, commenced a summary process action in the Housing Court for the city of Boston for nonpayment of rent, the defendant, Luz Gonzalez, filed six counterclaims alleging: (1) breach of the implied warranty of habitability; (2) breach of the covenant of quiet enjoyment in violation of G.L. c. 186, § 14 (1990 ed.); (3) negligent failure to maintain the premises; (4) intentional infliction of emotional distress; (5) retaliation in violation of G.L. c. 186, § 18; and (6) violations of G.L. c. 93A. After a trial, a judge of the Housing Court found in favor of Gonzalez on all of her counterclaims and awarded her damages under c. 186, treble damages under c. 93A (for the intentional infliction of emotional distress and violation of the warranty of habitability), and attorneys' fees and costs. (Haddad's claim for possession had become moot because Gonzalez had vacated the premises prior to the trial.) Haddad appealed, and we transferred the case to this court on our own initiative. We now affirm.

We take the facts from the judge's findings. Haddad is in the business of owning and renting residential property in Boston. In January, 1983, Gonzalez rented an apartment in a building that Haddad had owned since 1979, and she moved in with her four small children. The apartment was in "deplorable" condition at the time, but Gonzalez took possession because Haddad's agent assured her that the defects in the apartment would be repaired. ¹ The contract rent was $250 per month. ²

Shortly after moving in, Gonzalez began complaining to Haddad about the condition of the apartment, particularly about the lack of adequate heat. Haddad suggested in response that Gonzalez and her family turn on her oven and stove burners for heat. After further complaints, Haddad provided Gonzalez with a small space heater that caused a fuse to blow and resulted in a temporary interruption of electrical service to the apartment. On another occasion, Haddad told Gonzalez that if she were cold, he would "come over at night and give her heat." Gonzalez took this remark to mean that Haddad wanted to sleep with her; and she became frightened, because Haddad in the past had used his pass key to enter her apartment without knocking.

In March, 1983, Gonzalez made a partial payment of rent. Several days later, Haddad requested the balance, and Gonzalez informed him that she was withholding further payments of rent until Haddad dealt with some of the problems with her apartment. Haddad then commenced his action for summary process, and Gonzalez filed her counterclaims. While the matter was pending, Haddad did send some repairmen to the apartment, but the repairmen often were drunk. During one such visit, one of the repairmen vomited into Gonzalez's kitchen sink, and she was forced to clean up after him. In addition, Haddad harassed and threatened Gonzalez. He would scream at her and look at her menacingly. Haddad told Gonzalez that she would lose in court because he would "buy" the judge. He also told her that he would report her nonpayment of rent to the welfare department so as to cause the termination of her benefits, and he threatened to have her sent back to Puerto Rico.

In May, 1983, the parties agreed that Haddad would eliminate certain sanitary code violations, and the agreement was approved as an order of the Housing Court judge. In June, Gonzalez filed a motion for contempt, alleging that the repairs had not been made. In July, 1983, the judge ordered an inspection of the premises and ordered Haddad to repair any defects found. In August, after a dispute arose over the condition of the premises as described by the inspector, the judge viewed the premises.

After his view, the judge made express findings. Among other defects, the judge found that: (1) there was no functioning heating system; (2) several basement windows were missing; (3) the apartment windows were in deplorable condition and without screens; (4) ceiling fixtures were missing; (5) the walls and ceilings were cracked and had holes; (6) doors were missing knobs; (7) the flooring in places was hazardous; and (8) the apartment was infested with cockroaches and rodents. ³ The judge ordered Haddad to repair most of the defects by August 22, 1983. He also ordered Haddad to install a heating system by September 15, 1983, and to have the apartment treated by a professional exterminator.

In late August, 1983, an inspector reinspected the apartment in the presence of both parties. The inspector found that virtually all of the defects identified by the judge remained unrepaired. Later that month, the Boston inspectional services department served Haddad with three separate notices of violations of State and city housing regulations related to the condition of Gonzalez's apartment. On September 9, 1983, the inspector again made an inspection of the premises and reported that unrepaired defects remained. Gonzalez moved out of the apartment on September 15, 1983.

Based on the findings, as summarized above, the judge found in favor of Gonzalez on each of her counterclaims. To avoid awarding cumulative damages, however, the judge dismissed all but the retaliation and c. 93A counterclaims.

On Gonzalez's counterclaim alleging retaliation in violation of G.L. c. 186, § 18, the judge found that Haddad's attempt to evict Gonzalez was motivated solely by a desire to retaliate against her for her efforts to get him to repair her apartment. On the G.L. c. 93A counterclaim, the judge found that Gonzalez had suffered two discrete injuries as a consequence of Haddad's unfair and deceptive trade practices: emotional distress, and the diminution in value of the apartment due to Haddad's breach of the warranty of habitability.

On the emotional distress counterclaim, the judge determined that Gonzalez had proved that Haddad's intentional and outrageous conduct had caused her to suffer severe emotional distress, and that such proof constituted a basis for recovery under c. 93A. The judge then placed a value of $18,000 on Gonzalez's emotional distress. As to the warranty of the habitability counterclaim, the judge reasoned that Gonzalez was entitled to the difference between the actual value of the apartment in its defective condition and the fair market value of the apartment (rather than the contract rent), and he calculated the extent of her damages on that theory accordingly. The judge then added both base awards, trebled the total, and subtracted rent withheld by Gonzalez. The judge later added to this award, an award of attorneys' fees and costs.

Against this background, we consider the specific issues raised by Haddad. ⁴ Additional facts appear below in relation to our discussion of some of these points.

1. Recusal. Haddad's summary process action against Gonzalez was one of nine ongoing separate actions between Haddad and individual tenants in the same group of properties. At least some of the other cases were heard before the same judge of the Housing Court. After the trial of the first case, ⁵ Haddad twice made motions for the judge to recuse himself from the Gonzalez case on the ground that the judge was personally biased against Haddad.

Haddad argues that the judge erred in refusing to recuse himself. In support of his claim of bias, Haddad cites several comments from the record of the Rivera trial, see supra note 5, which ended six months prior to the trial in this case. ⁶ Haddad cites excerpts from the Housing Court judge's decisions in both the Rivera and Gonzalez cases, as well as the findings from the view the judge took of Gonzalez's apartment, as further evidence of disqualifying bias. ⁷ Haddad argues that the judge's statements and comments reflect longstanding personal animosity toward Haddad, and that the judge should have disqualified himself under S.J.C. Rule 3:09, Canon 3(C)(1)(a), 386 Mass. 811 (1981).

The matter of recusal is generally left to the discretion of the trial judge, see Care & Protection of Martha, 407 Mass. 319, 329 n. 10, 553 N.E.2d 902 (1990); Fogarty v. Commonwealth, 406 Mass. 103, 111, 546 N.E.2d 354 (1989), and an abuse of that discretion must be shown to reverse a decision not to allow recusal. Although we disapprove of some of the statements the judge made during the Rivera trial, we do not find that he abused his discretion in not recusing himself from the Gonzalez case.

When faced with "a question of his capacity to rule fairly, the judge [must] consult first his own emotions and conscience." Lena v. Commonwealth, 369 Mass. 571, 575, 340 N.E.2d 884 (1976). In considering Haddad's motion for recusal, the judge appears to have done so. ⁸ Even though he concluded that he did not lack the capacity to act fairly and impartially, the judge was then required to attempt an objective appraisal of whether this was a proceeding in which "his impartiality might reasonably be questioned." Id., quoting S.J.C. Rule 3:09, Canon 3(C)(1), supra. Circumstances where a judge's impartiality might reasonably be questioned include instances where the judge "has a personal bias or prejudice concerning a party...." S.J.C. Rule 3:09, Canon 3(C)(1)(a), supra.

We address first the contention that the statements made during the Rivera trial are an indication that the judge harbored personal bias or prejudice against Haddad in the Gonzalez case. We think that the judge's expressions of opinion relied upon by Haddad are primarily indications of impatience rather than bias. By the time the Rivera trial commenced, the judge had already visited Haddad's building twice in his judicial capacity. The judge was quite...