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15-P-366 Appeals Court
DOUG CLARK & others1 vs. LEISURE WOODS ESTATES, INC.
No. 15-P-366.
Franklin. November 13, 2015. - February 23, 2016.
Present: Milkey, Carhart, & Massing, JJ.
Damages, Breach of covenant of quiet enjoyment, Breach of implied warranty of habitability, Consumer protection case. Landlord and Tenant, Quiet enjoyment, Habitability, Consumer protection, Multiple damages, Snow and ice. Consumer Protection Act, Damages, Landlord and tenant. Manufactured Housing Community. Snow and Ice. Witness.
Civil action commenced in the Western Division of the Housing Court Department on November 2, 2009.
The case was heard by Robert G. Fields, J.
Timothy N. Schofield for the defendant. Jan Stiefel for the plaintiffs.
MASSING, J. This appeal involves a series of landlord-
tenant disputes in the manufactured housing context. The
1 Linda Clark, Alfred Henderson, Arthur Hicks, Donna Jalbert, Jane Mayo, Shirley Moulton, and Jeannette I. Stefancik. 2
plaintiffs, residents of Leisure Woods Estates (Leisure Woods),
a manufactured housing community in Orange, filed a complaint
alleging that the defendant, Leisure Woods Estates, Inc., which
owns, operates, and maintains Leisure Woods, failed to properly
maintain and repair the common spaces, roads, and home sites.
After a jury-waived trial, a judge of the Housing Court entered
judgment in favor of plaintiffs representing seven households,2
finding a breach of the implied warranty of habitability with
respect to the condition of the roads, interference with the
plaintiffs' quiet enjoyment of the common walking trails, and
separate and distinct breaches of the covenant of quiet
enjoyment with respect to the conditions of the seven individual
home sites. The judge awarded injunctive relief and monetary
damages for the violations, including two separate awards of
three months' rent to each household under G. L. c. 186, § 14
(§ 14), for the breaches of the covenant of quiet enjoyment, and
a twenty percent rent abatement, trebled under G. L. c. 93A
(c. 93A) and the Attorney General's regulations promulgated
thereunder, for the breach of the warranty of habitability. The
2 Originally, the complaint included twenty-two plaintiffs representing sixteen households. Four of the original plaintiffs have died since the complaint was filed and suggestions of death were filed as to them. Ten of the other original plaintiffs filed stipulations of dismissal during the course of litigation. The remaining eight plaintiffs are before us in this appeal. 3
judge awarded each household $13,010.40 (a total of $91,072.80),
plus attorney's fees and costs.
On appeal, the defendant argues that the judge erred in
awarding multiple triple rent damage awards under § 14 for
separate breaches of the covenant of quiet enjoyment, in
applying the warranty of habitability to potholes and
accumulations of ice and snow on the roads, and in excluding the
testimony of a "vital witness" for the defendant who did not
arrive in court until after the close of the evidence. We
vacate one of the triple rent damages awards as duplicative, but
otherwise affirm the judgment.
Background. The defendant purchased Leisure Woods in
December, 1997. The complex contains approximately 152
manufactured home sites. The residents own their manufactured
housing units and pay the defendant a monthly rental fee for the
lots on which their homes are situated. The parties have long
disputed their relative roles and responsibilities with respect
to the maintenance of the manufactured home sites and common
spaces.
After a three-day trial, the judge made detailed findings
concerning three distinct violations by the defendant. One
violation, a breach of the covenant of quiet enjoyment, related
to the residents' inability to use the walking trails. Both the
previous owner and the defendant advertised access to the trails 4
as a desirable amenity of tenancy at Leisure Woods, accessible
to all residents. Beginning in 2007, however, the defendant
posted "no trespassing" notices at the entrances of the walking
trails and installed cables across some of their openings,
closing off access. The judge awarded each household damages
equal to three months' rent based on the defendant's
interference with their quiet enjoyment of the trails.
The judge found additional breaches of the covenant of
quiet enjoyment with respect to the plaintiffs' individual home
sites. The judge found derelict conditions ranging from rotted
and collapsing retaining walls, to unsafe driveways and
walkways, to flooding. Noting that all of the residents were
seniors, and that many of them suffered from disabling ailments,
the judge found "that the defendant's failure to address the
crumbling infrastructure of the lots has seriously interfered
with the quiet enjoyment and uses of the premises and forms an
independent violation of G. L. c. 186, § 14, separate and
distinct from the . . . the defendant's curtailment of the . . .
walking trails." He awarded each household another three
months' rent as damages arising from these conditions.
Finally, the judge found that the defendant chronically
failed to attend to the accumulation of ice and snow on the
roads throughout Leisure Woods, that extensive potholes remained
unfilled, and that the roads were often impassable. The judge 5
found that the defendant's failure in this regard constituted a
breach of the warranty of habitability. He awarded each
household damages in the form of a rent abatement of twenty
percent for the period from March, 2008, through April, 2013,
and trebled this amount under c. 93A.3
Discussion. 1. Damages. The defendant argues that the
judge made errors of law in providing two awards under the
triple rent clause of § 14 and in applying the implied warranty
of habitability to roadways. We address each argument in turn.
A. Breaches of the covenant of quiet enjoyment. The judge
found two distinct violations of § 14 based on breaches of the
covenant of quiet enjoyment and awarded each household two
separate awards of three months' rent. The defendant argues
that § 14 permits only one triple rent award in a single action,
no matter how many distinct breaches of the covenant of quiet
enjoyment are proven.
In general, an injured party may recover separate awards of
damages for claims or injuries that are "factually separable and
distinguishable." Calimlim v. Foreign Car Center, Inc., 392
Mass. 228, 236 (1984). See Abdeljaber v. Gaddoura, 60 Mass.
App. Ct. 294, 301 n.14 (2004). The usual measure of damages for
breach of the covenant of quiet enjoyment is lost rental value,
3 In addition, the judge awarded the plaintiffs reasonable attorney's fees and costs under both § 14 and c. 93A. 6
that is, "the difference between the value of what the lessee
should have received and the value of what he did receive."
Darmetko v. Boston Hous. Authy., 378 Mass. 758, 761 n.4 (1979)
(Darmetko). Section 14, however, allows tenants to recover
"actual and consequential damages." G. L. c. 186, § 14, as
appearing in St. 1991, c. 481, § 22.4 This provision "was
4 Section 14 provides in part:
"Any lessor or landlord of any building or part thereof occupied for dwelling purposes, other than a room or rooms in a hotel, but including a manufactured home or land therefor, who is required by law or by the express or implied terms of any contract or lease or tenancy at will to furnish water, hot water, heat, light, power, gas, elevator service, telephone service, janitor service or refrigeration service to any occupant of such building or part thereof, who [i] willfully or intentionally fails to furnish such water, hot water, heat, light, power, gas, elevator service, telephone service, janitor service or refrigeration service at any time when the same is necessary to the proper or customary use of such building or part thereof, or any lessor or landlord who [ii] directly or indirectly interferes with the furnishing by another of such utilities or services, or who [iii] transfers the responsibility for payment for any utility services to the occupant without his knowledge or consent, or any lessor or landlord who [iv] directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant, or who [v] attempts to regain possession of such premises by force without benefit of judicial process, shall be punished by a fine of not less than twenty-five dollars nor more than three hundred dollars, or by imprisonment for not more than six months. Any person who commits any act in violation of this section shall also be liable for actual and consequential damages or three month's rent, whichever is greater, and the costs of the action, including a reasonable attorney's fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing." 7
intended to expand the damages recoverable for breach of the
covenant of quiet enjoyment," allowing tenants to be compensated
for "all reasonably foreseeable losses -- personal as well as
economic -- within the scope of statutory recovery." Simon v.
Solomon, 385 Mass. 91, 112-113 (1982) (Simon). Accordingly, the
plaintiffs were entitled to recover for all such losses
attributable to the defendant's interference with their use of
the walking trails and its failure to repair the decaying
infrastructure of their housing sites.
Frequently, "damages in rent abatement cases are not
capable of precise measurement." Brown v. LeClair, 20 Mass.
App. Ct. 976, 978 (1985). Where this is the case, § 14 affords
an alternative remedy: three months' rent, if greater than
actual and consequential damages. See Darmetko, supra at 762
("Section 14 allows a minimum recovery of three months' rent as
an incentive to the pursuit of relief where the actual and
consequential damages are slight or are difficult to prove").
Of course, a party may not recover multiple awards of
damages for the same injury based on different theories of
recovery -- such awards are said to be cumulative or
duplicative. See Calimlim v. Foreign Car Center, Inc., supra at
235-236; Abdeljaber v. Gaddoura, supra. See, e.g., Curtis v.
Surrette, 49 Mass. App. Ct. 99, 105 n.14 (2000) (tenants not
entitled to recover under both § 14 and State Sanitary Code 8
based upon same lead paint violations). The defendant relies on
Darmetko and Simon, supra, for the proposition that the two
triple rent awards for its breaches of the covenant of quiet
enjoyment are duplicative and inconsistent with the purpose of
§ 14.
In Darmetko, a tenant sued the Boston Housing Authority
alleging violations of § 14 for ongoing defects in her
apartment. Darmetko, supra at 759-760. Finding a breach of the
implied warranty of habitability, a judge of the Housing Court
awarded the tenant $739.50 to compensate for the reduction of
the value of the leased premises attributable to defective
floors and a leaky roof and $415 as consequential damages,
namely water damage to her personal property. Id. at 759. In
addition, the judge found that the leaky roof (but not the
defective floors) interfered with the tenant's quiet enjoyment
of the apartment and awarded her triple rent damages under § 14
for each month during which the breach persisted, another
$5,358. Id. at 760.
The Supreme Judicial Court reversed the damages award on
two grounds. First, the court found no statutory or other basis
for the tenant to recover cumulatively under two theories of
liability for the same wrong. Id. at 761. In addition, the
court held that § 14 does not provide for the triple rent
clause to be invoked for each month in which the violation 9
continues. Id. at 761-762. To the contrary, "[w]hen the actual
damages exceed three months' rent, . . . § 14 plainly states
that actual damages should be the measure of recovery." Id. at
762.
In Simon, 385 Mass. at 93-95, a tenant alleging repeated
flooding of her basement apartment prevailed after a jury trial
on claims of intentional infliction of emotional distress,
breach of the covenant of quiet enjoyment, and breach of the
warranty of habitability. As in Darmetko, supra, the plaintiff
was awarded damages under each theory: $35,000 for reckless
infliction of emotional distress, a $1,000 rent abatement for
breach of warranty, and $10,000 under § 14 for interference with
quiet enjoyment. Simon, supra at 94. On appeal, the court
concluded "that the $10,000 verdict for interference with quiet
enjoyment was, inescapably, an award of redundant damages" and
vacated the award. Id. at 108. Following Darmetko, the court
held that the triple rent award was not available because the
plaintiff's actual and consequential damages from the flooding,
awarded under the other two theories, exceeded three months'
rent. Id. at 109-110.
Arguing that the $10,000 award was not duplicative, the
tenant in Simon speculated that the jury might have arrived at
that figure based on ten separate awards of three months' rent
for poor conditions in the apartment other than the flooding. 10
Ibid. The court rejected the possibility of multiple triple
rent awards: "When three months' rent has been assessed for one
violation, the incentive function of the triple rent provision
is fulfilled. Therefore, we hold that a tenant proceeding under
§ 14 may collect only one such award, covering all claims that
the tenant raised or reasonably could have raised in the suit."
Id. at 110.
Darmetko and Simon do not strictly govern the case before
us. Despite the extended nature of the violations, the
plaintiffs here were not awarded repeated damages for each
rental period in which the breaches occurred, but rather one
triple rent award for each of two factually distinct breaches.
Nor were the two triple rent awards duplicative of any recovery
for actual or consequential damages.
Nonetheless, the judge's award here is inconsistent with
the language in Simon, supra, that says only one triple rent
award is available in a single proceeding under § 14, no matter
how many ways the landlord interferes with the tenant's quiet
enjoyment.5 The plaintiffs might have shown that the defendant's
5 In providing two triple rent awards, the judge stated that that the defendants' actions violated "separate and distinct prong[s] of G. L. c. 186, § 14," and cited two Housing Court decisions in which tenants recovered two triple rent awards on that basis. Section 14, in fact, prohibits five separate categories of landlord misconduct, the fourth being interference with quiet enjoyment. See note 4, supra. This case involved multiple violations of a single prong of § 14. Our decision 11
interference with the quiet enjoyment of their homes and the
grounds of Leisure Woods caused them damages in excess of three
months' rent, and recovered damages in an amount so shown.
However, because the plaintiffs did not or could not prove
extensive actual and consequential damages, § 14 provided them
minimum damages equal to three months' rent (as well as costs
and attorney's fees) -- but only one triple rent award in a
single proceeding.6 Accordingly, on the facts of this case, we
must vacate one of each plaintiff household's two triple rent
awards.
B. Violation of c. 93A. With regard to the roads, the
judge found that "[t]he extensive pot holes and unattended
accumulation of snow and ice constitute[d] a breach of the
warranty of habitability." The judge further found that the
violation was wilful and knowing: "[t]he defendant knew of, and
recklessly disregarded the need to, repair, plow, and sand
[Leisure Woods's] roads." Accordingly, he trebled the
plaintiffs' damages under G. L. c. 93A.
does not address a situation in which a landlord violated two or more clauses of § 14. 6 Moreover, if the defendant persists in violating § 14, the plaintiffs may return to court. "If new violations arise after the initial suit is filed, the tenant may recover triple rent in a new proceeding." Simon, 385 Mass. at 111. 12
The defendant argues that the judge erred in classifying
the violation as a breach of the warranty of habitability, which
"applies to significant defects in the property itself," because
"[t]he natural accumulation of snow and ice is not such a
defect." McAllister v. Boston Hous. Authy., 429 Mass. 300, 305-
306 (1999).7 We need not address whether the implied warranty of
habitability applies to the roadways of manufactured housing
communities -- which, we note, are an integral part of the
rented premises -- because we affirm the c. 93A award of treble
damages on different grounds from those on which the judge
relied. See Foley v. Lowell Sun Publishing Co., 404 Mass. 9, 11
(1989); Schwartz v. Travelers Indem. Co., 50 Mass. App. Ct. 672,
673 (2001). Here, the defendant's conduct violated c. 93A under
the Attorney General's manufactured housing regulations, 940
Code Mass. Regs. § 10.00 et seq. (1996). "In appropriate cases,
preference should be given to entry of judgment under the
Consumer Protection Act, especially where the Attorney General's
regulations provide that certain conduct . . . is violative of
G. L. c. 93A." Calimlim v. Foreign Car Center, Inc., 392 Mass.
at 235.
7 The reasoning and holding of McAllister have been limited by Papadopoulos v. Target Corp., 457 Mass. 368 (2010), and Sheehan v. Weaver, 467 Mass. 734 (2014). 13
"[T]he Legislature has, by G. L. c. 93A, § 2(c), delegated
to the Attorney General the power to promulgate rules and
regulations defining with specificity acts and practices which
violate G. L. c. 93A, § 2(a). These rules and regulations have
the same force of law as those of any 'agency' as defined in
G. L. c. 30A, § 1(2)." Purity Supreme, Inc. v. Attorney Gen.,
380 Mass. 762, 775 (1980). Relevant to this case, the Attorney
General's manufactured housing regulations specifically provide
that "[a]n operator shall maintain and keep in good repair all
community roadways that are part of the common areas and
facilities, including but not limited to ensuring that roadways
are reasonably free of debris and potholes. An operator shall
provide necessary snow plowing for all community roadways"
(emphasis supplied). 940 Code Mass. Regs. § 10.05(9) (1996).
The judge found "overwhelming" evidence that the roads at
Leisure Woods were significantly damaged by potholes and broken
pavement. The residents "testified credibly about the
defendant's inadequate removal of snow and treatment for ice on
the streets." Thus, the same facts that the judge determined
violated the warranty of habitability, which have not been shown
to be erroneous, also violated the Attorney General's
manufactured housing regulations. As the failure to comply with
the regulations amounts to an unfair or deceptive act or
practice in violation of c. 93A, see 940 Code Mass. Regs. 14
§ 10.02(3) (1996), and the judge found the defendant's
violations to be wilful and knowing, the judge did not err or
abuse his discretion in awarding treble damages.8
2. Excluded witness. The defendant contends that
excluding the testimony of its president, Glenn Gidley, was
"extremely prejudicial" and an abuse of discretion. We
disagree.
Gidley, to whom the defendant refers as a "vital witness,"
arrived inexcusably late on the day he was scheduled to testify
-- the last day of the trial. The second day of trial concluded
with the fourth defense witness, the defendant's on-site manager
(who had been present in court on the first day of trial as
well), on the witness stand. The defense expected to call two
more witnesses the next day, "Spanky" from Spanky's Tree Service
and Gidley. The trial reconvened the next day at 11:05 A.M. and
the manager's direct testimony continued. Her testimony
concluded after about an hour, but the next witness, Spanky, had
8 The judge did not err in awarding damages under c. 93A for the conditions of the roadways in addition to damages under § 14 for the curtailment of the use of the walking trails and the deterioration of the home sites. "[W]here the acts complained of under common law, statute, or regulation are factually separable and distinguishable from those claims to be unfair and deceptive, or where those acts have not been found to be violative of the Consumer Protection Act, there is no error in permitting separate recoveries for separable injuries." Calimlim v. Foreign Car Center, Inc., supra at 236. 15
in defense counsel's words "opted not to show," and Gidley, who
"was supposed to arrive about 12:30," had not yet appeared.
The judge attempted to accommodate the defendant by
granting a recess until 12:30 P.M. When the recess ended at
12:37 P.M. and Gidley still was not present, the judge attended
to a few procedural matters to allow for more time. Finally,
the judge instructed plaintiffs' counsel to begin her closing
argument. Though Gidley arrived during plaintiffs' counsel's
summation, the judge declined the defendant's request to reopen
the evidence over plaintiffs' counsel's objection that it would
be unfair to allow Gidley to testify after her argument.
The judge acted within his discretion in declining to allow
the witness to testify after the evidence had closed. "The
trial judge is in the best position to balance the competing
claims of fairness to the litigants and the case-flow efficiency
presented by such a motion." Scannell v. Ed. Ferreirinha &
Irmao, Lda., 401 Mass. 155, 158 (1987). The defendant was
responsible for getting all of its witnesses to court in a
timely manner, and it would not have been a hardship for Gidley
to arrive at 11:00 A.M., when court was scheduled to convene
that morning. The judge was more than fair and reasonable,
granting the defendant ample time and opportunity to allow for
Gidley's late arrival. The judge's action was "not so much a
punitive sanction as it was the logical and fair resolution of a 16
case where a party had failed properly to protect its
interests." Id. at 160. We discern no abuse of discretion.
See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).9
Conclusion. With respect to each of the seven plaintiff
households, one award of three months' rent ($1,026; $7,182
total) under § 14 is vacated. The judgment is affirmed in all
other respects.
The plaintiffs have requested and are entitled to an award
of appellate attorney's fees under § 14 and c. 93A. See Yorke
Mgmt. v. Castro, 406 Mass. 17, 19 (1989); Homesavers Council of
Greenfield Gardens, Inc. v. Sanchez, 70 Mass. App. Ct. 453, 461-
462 (2007). In accordance with the procedure set forth in Fabre
v. Walton, 441 Mass. 9, 10-11 (2004), the plaintiffs may file
documentation in support of their request for fees and costs
within fourteen days of the date of the rescript, and the
defendant shall have fourteen days thereafter to respond.10
So ordered.
9 Our conclusion that it was within the judge's discretion not to reopen the evidence disposes of the defendant's related argument that the judge erred in making findings regarding the defendant's liability in the absence of Gidley's testimony. 10 The plaintiffs' request for postjudgment interest should be directed to the trial court. See G. L. c. 235, § 8; Mass.R.Civ.P. 54(f), as amended, 382 Mass. 822 (1980).