Nepveu v. Rau

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. 89-466


David Nepveu                                 Supreme Court

                                             On Appeal from
     v.                                      District Court of Vermont,
                                             Unit No. 3, Lamoille Circuit

George Rau                                   November Term, 1989



Linda Levitt, J.

Valerie White and James R. Dean Mahoney, Law Clerk (On the Brief), Hyde
  Park, for plaintiff-appellee

Harold B. Stevens, Stowe, for defendant-appellant


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


 MORSE, J.   Defendant-landlord appeals a judgment awarding plaintiff-
tenant damages for willfully breaching the implied warranty of habitability
and wrongfully withholding plaintiff's security deposit.  We affirm.
     Upon first occupying the leased apartment on December 31, 1987, the
tenant discovered that the toilet did not flush and promptly complained to
the landlord.  After numerous verbal notices to defendant of the problem
and several repair attempts by a plumber, the problem persisted.  Finally,
plaintiff vacated the apartment on January 15, 1988, and sent the landlord
a letter that day saying he moved out because of the malfunctioning toilet.
Plaintiff demanded return of his $600 deposit and the $400 January rent.
Defendant responded by letter dated January 19, 1988, claiming, in effect,
that plaintiff wrongfully vacated the apartment, stating:

               It is my intention to expect you to be financially
          accountable for the rent on this apartment until I re-
          rent it, at which point I will refund you the balance of
          whatever January rent is left and your security deposit.

Defendant rerented the premises on February 11, 1988, and refunded a pro
rata amount of the security deposit to plaintiff.  A week later plaintiff
brought suit for damages under Vermont's Landlord and Tenant Act, Title 9,
ch. 137.
     Defendant's claims of error are that the court wrongfully denied his
motion for summary judgment and erred in granting judgment for the
plaintiff.
                                    I.
     Defendant first argues that plaintiff's failure to raise a material
issue of fact as to whether the toilet was clogged entitled the landlord to
summary judgment.  The landlord's affidavit admitted that the toilet was
clogged and that several repair attempts had been made over a two-week
period.  The defendant further averred that the tenant informed him the
toilet had not been repaired successfully when he moved out on January 15,
1988.  The tenant did not respond with an affidavit, but he did not need
to.  The landlord's own affidavit demonstrated there was a genuine issue of
fact to be resolved about the state of the plumbing.
                                    II.
     Defendant also claims error in granting judgment to plaintiff --
specifically, that the court erred in finding that he (1) breached the
warranty of habitability and (2) wrongfully withheld plaintiff's security
deposit.
     Defendant asserts that plaintiff "agreed to be responsible for taking
care of such minor plumbing problems" in the lease.  As to this point, an
implied warranty of habitability exists in every lease for a residential
dwelling unit and cannot be waived by agreement.  9 V.S.A. { 4457(a) and
(b); Hilder v. St. Peter, 144 Vt. 150, 159-160, 478 A.2d 202, 298 (1984).
     A tenant is required to give the landlord written notice of
noncompliance with the landlord's obligation for habitability.  9 V.S.A. {{
4458(a) and 4451(1).  "If the landlord fails to make repairs within a
reasonable time and the noncompliance materially affects health and safety,
the tenant may . . . terminate the rental agreement on reasonable notice."
9 V.S.A. { 4458(a)(4).
     As to the merits of defendant's claim that he did not breach the
warranty of habitability, the court found against him, and we agree that the
evidence supports that judgment.  Defendant actually knew of the fixture
problem from the first days that plaintiff occupied the apartment.  The
evidence also showed that plumbers repaired the toilet on four occasions
(i.e., January 4, 13, and 19, and March 16, 1988).  Defendant testified that
the plumbers performed the March labor for free because he assumed "they
felt that they should have found the problem before."   At that time, the
plumbers finally discovered an obstruction inside the toilet.  During the
successful March repair, the plumbers, for the first time, used an auger and
detected a Muppet toothbrush in the toilet trap.  The expert testified at
trial that during the March repair the plumber "removed the toilet and
turned it upside down and shook it and got the [toothbrush] out of there."
We hold that this evidence supports the conclusion that defendant failed to
make timely repairs under { 4458(a).
    Defendant's final contention that he did not wrongfully withhold the
security deposit is premised solely on his view that the tenant terminated
the lease pursuant to 9 V.S.A. { 4461(b)(1) ("landlord may retain all or a
portion of the security deposit for . . . nonpayment of rent").  The court
found, however, that the tenant terminated the lease because the landlord
did not make timely repair of the toilet.
     It may be argued that 9 V.S.A. { 4461(b)(1) and (e) (failure of
landlord to return security deposit with statement of deductions within 14
days of tenant vacating premises deemed forfeiture of right to withhold
deposit) means a landlord may withhold all or part of a security deposit
beyond 14 days when a tenant's liability for rent is disputed.  Defendant,
however, did not raise this issue on appeal, and it is therefore waived.
     Plaintiff's request for attorney's fees on appeal is granted.  9 V.S.A.
{{ 4458(a)(3), 4461(e); see Bruntaeger v. Zeller, 147 Vt. 247, 256, 515 A.2d 123, 129 (1986) (reasonable attorney's fees in consumer fraud statute
includes appeal costs).
     Affirmed on the merits.  Remanded for a hearing on attorney fees.
                                        FOR THE COURT:




                                        Associate Justice