Gokey v. Bessette

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-068


Stan Gokey                                   Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Donald Bessette                              Unit No. 2, Chittenden Circuit
and Gail Bessette
                                             September Term, 1989


Edward J. Cashman, J.

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

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


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.



     GIBSON, J.    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. { 4465, (FN1) 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' com-
plaints 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 { 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 retali-
atory, the events must speak for themselves.  See Smith v. District of
Columbia 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 (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.  Plain-
tiff, however, having failed to provide habitable premises and having con-
ceded 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 February to June, 1986," and a second time "for
the stress and discomfort of having to endure the frustration of a retali-
atory eviction."  The heart of plaintiff's claim is that the emotional
injury attributable to the failure to repair the sewer system and the
emotional injury from the retaliatory eviction were, in effect, the same
injury, and that "the tenants are not entitled to this double recovery."
Even though the amount of each recovery was the same ($1600), the recovery
was not double.  The events giving rise to the emotional damage were not
contemporaneous with, nor did they concern, the same occurrence.  Defendants
experienced the strain and suffering resulting from the unsanitary condi-
tions from February to June, 1986.  With or without a subsequent retaliatory
eviction, that emotional injury was complete when the septic system was
finally repaired on June 17, 1986.  The retaliatory eviction followed the
withholding of the June lst rental payment and caused an entirely different
injury -- not the risk of illness from flowing sewage and an assault on the
olfactory senses, but rather the injury of eviction from a dwelling which
has finally been made habitable.  The two injuries differed in time and
nature.
                                    V.
     Plaintiff is correct, however, that there was no basis on the record to
deny his claim for rent from June 17 to September 30, 1986.  Defendants
remained on the premises during this period, after the sewer line repair had
been completed.  None of defendants' theories apply to this period of
occupancy.  The violation of the implied warranty of habitability was
addressed by the forgiveness of rent for February, March, April, and May,
1986, and the court awarded damages for the retaliatory eviction, the loss
of food, and the discomfort and distress associated with the lockout from
the barn.
     The court provided no rationale for denial of plaintiff's claim for
rent from June 17 through September 30, and defendants do not suggest any
rationale in their brief.  Consequently, plaintiff is entitled as a matter
of law to rent in the amount of $1,370.95 for this period.2
                                    VI.
     Plaintiff next argues that the attorney's fee allowance of $700 was
unsupported by any evidence on the record. The trial court concluded "from
the file, the complexity of the factual and legal issues presented and the
competence of counsel that his services equal at least $700."  Plaintiff,
however, offered no evidence as to the value of those services.
     We have always required counsel to present evidence in support of any
request for attorney's fees.  See Fine Foods, Inc. v. Dahlin, 147 Vt. 599,
605, 523 A.2d 1228, 1232 (1987); Bruntaeger v. Zeller, 147 Vt. 247, 254, 515 A.2d 123, 128 (1986).  In doing so, we have also stated that a trial court
may rely on its own experience and knowledge in making its determination.
Fine Foods, Inc., 147 Vt. at 605, 523 A.2d  at 1232; Young v. Northern
Terminals, Inc., 132 Vt. 125, 130, 315 A.2d 469, 472 (1974).  Without
abrogating our longstanding practice in the usual case, we hold that when
the fee requested is not large, it is within the discretion of the trial
court to award a reasonable fee without requiring the submission of
evidence.  We make no attempt, however, to establish a dollar amount below
which a trial court may dispense with the taking of evidence; that decision
is one that must depend on the facts of the individual case.
     We believe this is one of those cases.  The amount involved is not
substantial for the complexity of the case, and we do not believe it would
serve any useful purpose to remand this matter solely for the taking of
evidence as to the reasonableness of the attorney's fee.  Trial courts have
wide discretion in fixing the reasonable value of legal services, and the
fee allowed by the court will ordinarily not be disturbed unless there is
"'strong evidence of excessiveness or inadequacy.'"  Parker, Lamb & Ankuda,
P.C. v. Krupinsky, 146 Vt. 304, 307, 503 A.2d 531, 533 (1985) (quoting Young
v. Northern Terminals, Inc., 132 Vt. at 130, 315 A.2d at 472).  There is no
claim that the fee awarded herein was excessive or unreasonable, and we find
no abuse of discretion on the part of the trial court.
     The total amount of defendants' award, including attorney's fees, comes
to $5,000, and is thus within the $5,000 jurisdictional limit of the
district court. See 4 V.S.A. { 437.
     The dismissal of that portion of plaintiff's complaint seeking recovery
of rent from June 17 through September 30, 1986 is reversed, and plaintiff
is awarded judgment in the amount of $1,370.95 on his complaint.  The
judgment of $5,000 in favor of defendants on their counterclaim is affirmed.
Accordingly, defendants are awarded judgment in the net amount of $3,629.05.




                                        FOR THE COURT:



                                        ____________________________________
                                        Associate Justice



FN1.   9 V.S.A. { 4465 states in relevant part:
          (a) A landlord of a residential dwelling unit may not
          retaliate by establishing or changing terms of a rental
          agreement or by bringing or threatening to bring an
          action against a tenant who:
               (1) has complained to a governmental agency charged
          with responsibility for enforcement of a building,
          housing or health regulation of a violation applicable
          to the premises materially affecting health and safety.
    
FN2.    The rent for thirteen days in June amounts to $170.95 ($4800 for 12
months divided by 365 days equals daily rental of $13.15, or $170.95 for 13
days).  Adding $1,200 rent for the months of July, August and September
brings the total rent for this period to $1,370.95.