CARPENTER v. MITCHELL (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Sara Carpenter, trustee of Acquisition Trust (landlord), appeals from a Housing Court judgment,³ following a trial on the merits, dismissing the landlord's summary process action against the defendant, Shalene Mitchell (tenant), and awarding damages on the tenant's counterclaims for (1) breach of the implied warranty of habitability, see G. L. c. 239, § 8A, (2) mishandling of the tenant's last month's rent interest, see G. L. c. 186, § 15B (2) (a), and (3) violating the Consumer Protection Act, G. L. c. 93A (c. 93A). We modify the judgment by striking the awards of: (1) $420 as treble damages for mishandling the last month's rent interest; and (2) $50 as statutory damages under c. 93A. As so modified, the judgment is affirmed.

Discussion. When reviewing a trial judge's decision in a summary process action, “ ‘we accept [the judge's] findings of fact as true unless they are clearly erroneous,’ but ‘we scrutinize without deference the legal standard which the judge applied to the facts.’ ” Cambridge St. Realty, LLC v. Stewart, 481 Mass. 121, 123 (2018), quoting Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 306 (2005).

1. Summary process eviction. The landlord maintains the judge erred in dismissing the summary process action because the three notices to quit were separately sent, and the landlord's thirty-day notice to quit gave the landlord the right to proceed with eviction. A landlord's termination notice must be unequivocal. See Maguire v. Haddad, 325 Mass. 590, 593 (1950). Here, the judge found that the landlord sent three notices, each with different termination dates and that the last notice was served before expiration of the cure time of the second notice. On the record before us,⁴ the judge properly could conclude that the notices were not unequivocal.

2. Implied warranty of habitability. The landlord next contends the judge erred by imposing damages both for supplying inadequate heat for four years and completely shutting off the heat for three days. Where a judge finds that a landlord breached the implied warranty of habitability, damages “would be the difference between the value of the dwelling as warranted (the rent agreed on may be evidence of this value) and the value of the dwelling as it exists in its defective condition.” Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 203 (1973). Consistently inadequate heating systems and intentionally shutting off the entire heating system are distinct items, each resulting in a separate and nonoverlapping injury to the tenant; thus, the landlord has not demonstrated that the judge erred in awarding damages for both defects. Restatement (Second) of Property, Landlord & Tenant § 10.2 comment j, at 346 (1977) (“The tenant is entitled to any one or more of the items of damages which were caused by the landlord's default”).

3. Mishandling of last month's rent. The landlord also maintains that the judge erred in tripling the last month's rent interest. Because the judge found that the tenancy was not terminated, we agree and strike this portion of the award. See G. L. c. 186, § 15B (2) (a) (tenant entitled to three times the amount of interest that has accrued “[i]f the [landlord] fails to pay any interest ․ within thirty days after the termination of the tenancy” [emphasis added] ).

4. Violation of c. 93A. The landlord also contends that the judge erred in awarding c. 93A damages because (1) there was no identifiable, distinct injury resulting from his unfair or deceptive act (mishandling the tenant's last month's rent), and (2) the judge found that the tenant failed to demonstrate any damages or harm from the landlord's failure to comply with lead paint disclosure laws, see G. L. c. 111, § 197A (d) (2). Where there is an “absence of any causal connection between the deception and any loss,” Hershenow v. Enterprise Rent-A-Car Co. of Boston, 445 Mass. 790, 801 (2006), a per se violation of c. 93A does not entitle a consumer to redress under that chapter. Id. at 801-802. See Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500, 503 (2011).

Here, although the judge found the landlord failed to comply with lead paint disclosure laws and mishandled the tenant's last month's rent, which are unfair and deceptive acts pursuant to c. 93A, see 940 Code Mass. Regs. §§ 3.17(1)(c), (4)(b) (1993), the judge also found that the tenant “failed to demonstrate any damages or harm for such failure.” As such, the landlord's failures do not justify a statutory award under c. 93A.⁵ See Tyler v. Michaels Stores, Inc., 464 Mass. 492, 503 n.17 (2013) (if company had obtained consumer's zip code in violation of c. 93A, § 105 [a], but never used the information for any purpose thereafter, the consumer would have suffered no distinct harm under c. 93A, § 2). Accordingly, we vacate each of the c. 93A statutory awards for the violations of G. L. c. 186, § 15B (2) (a), and G. L. c. 111, § 197A (d) (2). The c. 93A statutory award for violation of cross-metering laws, pursuant to G. L. c. 186, § 14, remains.

Conclusion. The judgment entered January 8, 2018, is modified by striking the awards of: (1) $420 as treble damages for mishandling the last month's rent interest, G. L. c. 186, § 15B (2) (a); and (2) $50 as statutory damages under c. 93A. As so modified, the judgment, including its order for an award of costs and reasonable attorney's fees, is affirmed. The order entered April 10, 2018, denying the landlord's motion for reconsideration, is affirmed.

So ordered.

FOOTNOTES

3.   The landlord also appealed from an order denying her postjudgment motion for reconsideration. But the landlord does not raise any argument addressing that order. As such, we deem the landlord's challenge waived. See Boston Hous. Auth. v. Guirola, 410 Mass. 820, 827 n.9 (1991).

4.   The landlord has not provided us with either the trial transcripts or the exhibits presented to the judge. See Roby v. Superintendent, Mass. Correctional Inst., Concord, 94 Mass. App. Ct. 410, 412 (2018) (“[I]t is the appellant's responsibility to ensure that the record is adequate for appellate review” [quotation omitted] ); Mass. R. A. P. 18 (a), as amended, 425 Mass. 1602 (1997).

5.   Although a violation of the lead disclosure laws allows for statutory damages even without actual damages, see G. L. c. 111, § 197A (e), such damages are insufficient to show a distinct injury in order to warrant an award under c. 93A. See Rhodes v. AIG Domestic Claims, Inc., 461 Mass. 486, 500 (2012) (“c. 93A, § 9, does not require a causal relationship between the unfair practice and the underlying judgment itself; rather the statutory causation requirement focuses on the relationship between the unfair practice and injury to the plaintiff”).