Perreault v. Parker

¶1dissenting.

¶2I respectfully dissent. In an effort to give the District Court Judge the benefit of the doubt, the Court adopts a strained reading of his conclusions that obscures the legal error he committed. Because that error deprived the defendant of an important protection, I would vacate and remand for a new trial.

¶3The Court’s opinion correctly demonstrates that the District Court Judge erred in finding that no presumption of retaliation arose. Whatever motivated the tenant’s original complaint, the landlord also received a notice of Municipal Code Violation, showing that the tenant’s complaint had merit. Within a week, the landlord served the tenant with a notice to quit. Nonetheless, the District Court Judge did not recognize that he was bound to presume retaliation. He said,

[t]he provisions of 14 M.R.S.A. § 6001(3) are not applicable because the Defendant’s complaints were not made in good faith and because the Plaintiff has established that the basis for the eviction was the Defendant’s refusal to pay the agreed rent.1

¶4Because he explicitly did not presume retaliation as the statute required, the Judge could not properly have weighed the evidence. This Court stretches the meaning of the above quoted statement of the District Court Judge when it states that he found plaintiff rebutted the presumption of retaliation by establishing that the basis for eviction was defendant’s refusal to pay the agreed rent in full. A fact finder who concludes that a presumption is not applicable is hardly likely to “find” that the presumption has been rebutted, let alone to evaluate whether the plaintiff had carried his burden under M.R.Evid. 301(a) of proving that the nonexistence of the presumed fact is more probable than its existence. The mere appearance of a non-retaliatory motive for eviction in the evidence is not sufficient, since M.R.Evid. 301(a) does not embody the “bursting bubble” theory of presumptions. Ambassador Ins. Co. v. Dumas, 402 A.2d 1297, 1299 (Me.1979). To find the presumption inapplicable was plain error that tainted beyond salvage the further finding regarding the basis for eviction.

¶5I dissent in this case because the District Court Judge’s error of law goes to the heart of the defendant’s case and contravenes a strong public policy. The error unavoidably affected the fact-finding. Thus this Court should not rely on a contradictory factual conclusion to hold that the error was inconsequential. In barring retaliatory evictions the Legislature has given tenants a very important protection. Doubts and contradictory findings should be resolved in favor of the tenant to ensure that the legislative policy behind 14 M.R. S.A. § 6001(3) is carried out. The defendant is entitled to a fair and legally correct hearing when her eviction is presumptively retaliatory.