MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff Marsha Cimini (landlord) appeals from a Housing Court judgment, after a jury-waived trial, awarding the defendant Rachel Nicola (tenant) damages for breach of the covenant of quiet enjoyment, violation of G. L. c. 93A, and breach of the implied warranty of habitability, as well as attorneys fees and costs. The landlord argues that (1) the judge improperly found that by taping an enlarged, handwritten version of the notice to quit to the tenants front door, the landlord breached the covenant of quiet enjoyment, (2) the judges findings of fact based on credibility determinations were erroneous, (3) the landlord was denied her right to a jury trial, and (4) the landlord was denied the right to obtain counsel through a court program for pro se litigants. We affirm.
Background. The landlord owns a single-family home in Pittsfield. The tenant has lived there since February 1, 2017. The landlord terminated the tenancy by a December 30, 2017 no-fault termination notice, and then commenced this summary process matter. Also on December 30, the landlord taped an enlarged, poster-sized, handwritten version of the termination notice to the tenants front door, where passersby could easily see it from the sidewalk. The tenant was not home at the time, and did not return home until the next day, when she took the poster-sized notice to the police to seek protection from further harassment.
The landlord filed a summary process summons and complaint on February 12, 2018. The tenant filed an answer and counterclaims, as relevant to this appeal, for breach of the covenant of quiet enjoyment, G. L. c. 186, § 14; unfair or deceptive business practices in violation of G. L. c. 93A; and violation of the implied warranty of habitability.
On March 14, 2018, after the deadline for the tenant to respond to the complaint, the landlord moved for a jury trial. But on the same day, the landlord signed a pretrial agreement informing the court that the case would require a “[three] hour bench [t]rial.” As a result, the judge endorsed the landlords motion for jury trial, “No action taken see agreement.”
The case was tried jury-waived on July 11, 2018. The judge thereafter issued findings of fact, rulings of law, and an order for judgment, concluding that by taping the enlarged termination notice on the tenants front door, the landlord breached the tenants covenant of quiet enjoyment, G. L. c. 186, § 14, and committed an unfair or deceptive business practice, G. L. c. 93A, § 2, by violating the tenants right to privacy, G. L. c. 214, § 1B. The judge also concluded that the landlord breached the warranty of habitability by failing to repair the property, which had defects including loose back steps, wobbly basement steps and no lighting in the basement, a loose handrail, and exposed wiring; those defects had existed throughout the tenancy and had not been repaired by the time of trial.
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The landlord appeals.
Discussion. On review of a judgment after a jury-waived trial, we accept the judges findings of fact unless clearly erroneous, but review de novo his rulings on questions of law. See South Boston Elderly Residences, Inc. v. Moynahan, 91 Mass. App. Ct. 455, 462 (2017).
1. Notice to quit. The landlord argues that the judge erred in ruling that the landlords taping the enlarged notice to quit on the front door of the tenants home violated the tenants covenant of quiet enjoyment, and violated G. L. c. 93A by impinging on the tenants privacy rights.
In ruling that the landlords taping the enlarged notice to the victims front door violated the tenants covenant of quiet enjoyment, the judge distinguished Kelly v. Jones, 80 Mass. App. Ct. 476, 479 (2011), where this court held that a landlords discussing tenants’ private business in church did not interfere with the tenants’ quiet enjoyment of the premises, because it did not take place on or near the premises. Here, in contrast, the landlord taped the enlarged notice to the tenants front door, where it could be seen by passersby and was seen by the neighbor across the street. We agree that the landlords doing so violated the covenant of quiet enjoyment, which protects a tenant from “serious interference with [her] tenancy -- acts or omissions that impair the character and value of the leasehold” (quotation and citation omitted). Youghal, LLC v. Entwistle, 484 Mass. 1019, 1023 (2020).
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The judge did not make any finding as to how long the enlarged notice was attached to the tenants front door. The landlord argues that it was attached for “mere seconds” because the tenants houseguest removed it. That is beside the point. The breach of quiet enjoyment was taping the poster-sized eviction notice to the tenants door, where it could be seen by passersby, and was seen by the neighbor across the street and the houseguest. Similarly, the judge concluded that the landlords taping the enlarged notice to the tenants front door constituted an unfair or deceptive business practice by impinging on the tenants statutory right to privacy, G. L. c. 214, § 1B. Quoting from Levings v. Forbes & Wallace, Inc., 8 Mass. App. Ct. 498, 504 (1979), where this court held that “[t]he objectionable conduct must attain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce,” the judge concluded that the landlords conduct did so here. We agree. The landlords conduct offended public policy by unreasonably disclosing the tenants private information where there was no legitimate interest served by doing so. See Bratt v. International Business Machs. Corp., 392 Mass. 508, 521 (1984). Because the landlord could have conveyed the message contained in the notice to quit without enlarging it and posting it where it was visible from the sidewalk, her invasion of the tenants privacy was unreasonable or unjustified, and resulted in a serious or substantial interference with the tenants privacy. G. L. c. 214, § 1B. Contrary to the landlords argument, the possibility that the fact that she was seeking to evict the tenant might ultimately become a matter of public record in the Housing Court did not amount to justification for posting the oversized notice on the front door of the tenants home.
2. Judges findings of fact on issues of credibility. The landlord raises various claims about the judges findings of fact, and we dispose of most of those claims by noting that we accept the judges findings unless clearly erroneous, which they were not. See South Boston Elderly Residences, Inc., 91 Mass. App. Ct. at 462. In particular, the landlord contests the judges findings that the oversized notice was on the front door of the tenants home and could be seen from the sidewalk, maintaining that it was posted on an “inside” door “away from the world[’]s view and any passerby.” The judge heard testimony of the neighbor across the street that he saw the landlord taping the enlarged handwritten version of the eviction notice to the tenants doorway. The judge also viewed a photograph of the poster-sized notice on the door, which was admitted as an exhibit. Based on that evidence, the judges findings were not clearly erroneous, and so we do not disturb them.
For the first time on appeal, the landlord argues that the judge abused his discretion by not ruling on the validity of the lease. Without citation to the record, the landlord argues that the tenant had alleged that the lease was “forged.” Because the landlord did not raise this argument in the Housing Court or cite to any part of the record to support it, we decline to reach it. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) (“issue not raised or argued below may not be argued for the first time on appeal” [citation omitted]). Moreover, the trial record shows that the judge properly adjudicated the landlords claim for possession, the tenants counterclaims, and the landlords defense to those counterclaims.
3. Jury demand. The landlord argues that she was denied her right to a jury trial. The landlord did not request a jury trial in her complaint. Nearly one month after the tenant filed her answer and counterclaims, the landlord moved for a jury trial. That motion was untimely. See Adjartey v. Central Div. of the Hous. Court Dept, 481 Mass. 830, 857 (2019) (“If a party wishes to have the matter heard by a jury, he or she must file a demand for a jury trial no later than the due date for the defendants answer”).
In any event, as mentioned above, on the same day as the landlord filed her motion for a jury trial, she signed the joint agreement informing the court that the case would entail a three-hour bench trial, and so the judge declined to rule on the landlords motion. When trial began, the landlord did not protest the absence of a jury. Contrast Cort v. Majors, 92 Mass. App. Ct. 151, 154 (2017). In those circumstances, the landlord waived her right to a jury trial. See CMJ Mgt. Co. v. Wilkerson, 91 Mass. App. Ct. 276, 282 (2017).
4. Lawyer for a day program. The landlord argues that she had the right to receive the advice of counsel under the Housing Courts “Lawyer for a Day Program” (LDP). Housing Court Standing Order 1-01 establishes the LDP, pursuant to which pro bono attorneys “provide limited legal advice to pro se litigants in the Housing Court on a first-come, first-served basis.” The LDP is a service provided by volunteer attorneys on a limited basis, and the landlord cites no authority for the proposition that she had a right to counsel in this case. Moreover, contrary to her assertion, she did receive LDP services from an attorney and has not demonstrated that she was entitled to further LDP services.
5. Costs and attorneys fees. The tenant has requested attorneys fees and double costs, and we agree that she is entitled to them. See Mass R. A. P. 25, as appearing in 481 Mass. 1654 (2019); Symmons v. OKeeffe, 419 Mass. 288, 303 (1995) (double costs and attorneys fees appropriate under rule 25 if party pressed frivolous appeal). See also Yorke Mgt. v. Castro, 406 Mass. 17, 20 (1989) (tenant awarded appellate attorneys fees under G. L. c. 186 and c. 93A). Accordingly, pursuant to the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the tenant may file an application for appellate attorneys fees and costs within fourteen days of the issuance of the rescript, after which the landlord shall have fourteen days within which to respond.
Judgment affirmed.
FOOTNOTES
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. The judge specifically declined to credit the landlords testimony that the tenant or her guests had caused some of the conditions of disrepair and had prevented the landlord from making repairs.
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. In her reply brief, the landlord argues for the first time that the tenants counterclaims did not provide her with notice that the enlarged notice was the basis of the breach of quiet enjoyment. “An argument raised for the first time in a reply brief is not properly before us, and we do not consider it here.” Katz, Nannis & Solomon, P.C. v. Levine, 473 Mass. 784, 795 n.15 (2016). Moreover, the counterclaims did allege that the landlord breached the covenant of quiet enjoyment “by intimidating and harassing” the tenant.