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23-P-178 Appeals Court
LOUISE CONNOR & others1 vs. MARRIOTT INTERNATIONAL, INC., & another.2
No. 23-P-178.
Norfolk. November 8, 2023. – March 18, 2024.
Present: Rubin, Massing, & Desmond, JJ.
Consumer Protection Act, Unfair or deceptive act. Practice, Civil, Summary judgment, Consumer protection case.
Civil action commenced in the Superior Court Department on November 13, 2019.
The case was heard by Paul D. Wilson, J., on a motion for summary judgment.
Olena Savytska for the plaintiffs. Sally A. Morris for the defendants.
MASSING, J. The plaintiffs made reservations at the
defendants' hotel for the express purpose of meeting with
1 NY Kids Showroom, Inc., and Stephanie Fishman.
2 Giri Dedham, LLC, doing business as the Fairfield Inn Dedham. 2
prospective clients for their business -- the sale of children's
clothing to retailers -- as they had done in the past. When
they arrived, the hotel informed them of a new, unwritten policy
that prohibited doing business in the hotel. When the
plaintiffs argued about the surprise imposition of the new
policy, they were forced to leave. The plaintiffs claim that
their removal from the hotel violated a provision of the so-
called "innkeeper's statute," G. L. c. 140, § 12B, which they
contend amounts to an unfair or deceptive trade practice under
G. L. c. 93A, § 2, as a matter of law. A Superior Court judge
entered summary judgment for the defendants. Although we reject
the plaintiffs' claim that § 12B of the innkeeper's statute is a
consumer protection statute, the violation of which
automatically violates c. 93A, we vacate the allowance of
summary judgment on their c. 93A claim. The defendants did not
demonstrate that the plaintiffs had no reasonable expectation of
proving that the hotel's conduct was unfair or deceptive.
Background. "We recite the material facts in the light
most favorable to the plaintiff[s], the part[ies] who opposed
the motion for summary judgment." Sarkisian v. Concept
Restaurants, Inc., 471 Mass. 679, 680 (2015).
Plaintiffs Louise Connor and Stephanie Fishman and their
businesses, plaintiff NY Kids Showroom, Inc., and nonparty
Appaman, Inc., respectively, sell high-end children's clothing 3
and merchandise to retailers ranging from local boutiques to
major department stores. For several years the plaintiffs took
rooms at the defendant, Fairfield Inn Dedham,3 to showcase their
wares to retail customers in the Boston area. The location of
the hotel was particularly attractive because of its proximity
to trade shows held at a children's clothing market nearby.
For their stays, the plaintiffs requested specific suites
at the hotel to give them ample space to meet with potential
clients and display sample merchandise. To set up, the
plaintiffs "had to wheel in large merchandise displays and bring
in boxes of merchandise." They made appointments or met with
walk-in visitors, from whom they took orders for items that
would be produced and shipped months later. The plaintiffs did
not accept payment or distribute merchandise directly from the
hotel.
On the afternoon of September 14, 2019, Fishman drove to
Dedham from New Jersey. She called ahead to the hotel to
request a late check-in and discuss the handling of the large
boxes of samples that had been shipped to the hotel in advance.
3 At all relevant times, defendant Giri Dedham, LLC, operated and did business as the Fairfield Inn Dedham. The record is unclear as to the relationship between Giri Dedham, LLC, and defendant Marriott International, Inc. The general manager of the hotel testified at his deposition that Fairfield Inn is a "subsidiary" of Marriott and "[t]hey go off of Marriott's policy because they are Marriott." 4
The front desk employee not only confirmed the booking and the
hotel's receipt of five large boxes of samples, but also
welcomed Fishman as a repeat guest and remembered her preference
for a larger suite.
Connor arrived before Fishman; the hotel manager, Matthew
Cooke, checked her into her room. Soon thereafter, Cooke
visited Connor's room to inform her she "couldn't do any
business" there. Connor explained that she had visited the
hotel for business many times before and had never sold
merchandise out of the hotel room. Cooke said, "[F]ine," and
left the room, but soon returned, after telephoning the hotel's
general manager, and directed Connor to leave the premises
because the hotel's policy had changed and she was on a "do not
rent" list. Cooke told Connor that the plaintiffs "no longer
fit the image of the hotel." The general manager, citing the
safety risks of allowing unregistered visitors into the hotel to
view the plaintiffs' products, instructed Cooke to call the
police to remove Connor.
When Fishman arrived, Connor had already been speaking with
the police for about fifteen minutes in the parking lot in an
attempt to resolve the conflict. The plaintiffs repeatedly
asked to see a written copy of the new no solicitation policy or
the do not rent list, but Cooke refused, leading Fishman to
suspect that they did not exist. An undated document labeled as 5
a do not rent list does exist in the summary judgment record and
includes the plaintiffs' names, but the general manager of the
hotel conceded at his deposition that the plaintiffs were not on
the list when they arrived and were ejected only for violating
the no solicitation policy. The confrontation lasted for hours
and sparked rumors among the plaintiffs' potential customers.
The police briefly and reluctantly handcuffed Connor before
she and Fishman agreed to leave the premises. The hotel
refunded Connor for the cost of her room. As Fishman had not
checked in, no refund was necessary. Although Fishman found a
different hotel and managed to reschedule most of their
scheduled appointments, the plaintiffs claimed damages based on
the last-minute change of hotels, loss of business, and the
reputational harm they suffered as they were confronted by
uniformed officers in sight of potential customers.
Discussion. The plaintiffs argue that because the hotel
removed them based on an undisclosed policy, the hotel violated
G. L. c. 140, § 12B, of the innkeeper's statute, which they
contend amounts to a per se violation of c. 93A. Setting the
innkeeper's statute aside, the plaintiffs also argue that the
hotel's acts amounted to "unfair or deceptive acts or practices
in the conduct of any trade or commerce." G. L. c. 93A, § 2.
We review de novo the entry of summary judgment to
determine "whether, viewing the evidence in the light most 6
favorable to the nonmoving party, all material facts have been
established and the moving party is entitled to a judgment as a
matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.
117, 120 (1991). Summary judgment is proper if the moving party
shows "that the party opposing the motion has no reasonable
expectation of proving an essential element of that party's
case." Scholz v. Delp, 473 Mass. 242, 249 (2015), cert. denied,
578 U.S. 1023 (2016), quoting Ravnikar v. Bogojavlensky, 438
Mass. 627, 629 (2003). "The moving party bears the burden of
demonstrating the absence of a triable issue of fact on every
relevant issue." Scholz, supra. The only issue in this appeal
is whether the defendants have shown that the plaintiffs have no
reasonable expectation of proving that the hotel's conduct was
unfair or deceptive.4
1. Innkeeper's statute. The plaintiffs rely on a section
of the innkeeper's statute that lists a number of permissible
reasons for a hotel to remove guests:
"An innkeeper may remove or cause to be removed from a hotel a guest or other person who: refuses or is unable to pay for accommodations or services; while on the premises of the hotel acts in an obviously intoxicated or disorderly manner, destroys or threatens to destroy hotel property, or causes or threatens to cause a disturbance; or violates a rule
4 The plaintiffs' complaint alleged claims of intentional infliction of emotional distress, tortious interference with advantageous business relations, and violation of c. 93A. Summary judgment entered on all three counts. On appeal, the plaintiffs advance only their c. 93A claim. 7
of the hotel that is clearly and conspicuously posted at or near the front desk and on the inside of the entrance door of every guest room. If the guest has paid in advance, the innkeeper shall tender to the guest any unused portion of the advanced payment at the time of removal."
G. L. c. 140, § 12B. The plaintiffs argue that because the
hotel's supposed no solicitation policy was not "clearly and
conspicuously posted," they were removed in violation of § 12B.
And they argue that a violation of § 12B is a per se violation
of c. 93A by the vehicle of 940 Code Mass. Regs. § 3.16(3)
(1993). The hotel counters that its prohibition against
conducting business from hotel rooms did not have to be posted
because it was merely a "policy" but not a "rule," and in any
event, it properly removed the plaintiffs under § 12B for
"caus[ing] a disturbance."
Under 940 Code Mass. Regs. § 3.16(3), the Attorney General
defines an act or practice to violate G. L. c. 93A, § 2, if
"[i]t fails to comply with existing statutes, rules, regulations
or laws, meant for the protection of the public's health,
safety, or welfare promulgated by the Commonwealth or any
political subdivision thereof intended to provide the consumers
of this Commonwealth protection." The regulation "by its terms
imposes the substantive limitation that the law or regulation at
issue must be intended to protect consumers." Klairmont v.
Gainsboro Restaurant, Inc., 465 Mass. 165, 174 (2013). 8
We are aware of no authority that identifies § 12B of the
innkeeper's statute as a consumer protection statute, nor do we
think that it qualifies as such. To the contrary, § 12B
provides protection for innkeepers, who are required under the
licensing provisions of G. L. c. 140, §§ 2, 5, and 6, "to be
provided at all times with suitable food for strangers and
travellers and . . . suitable rooms with beds and bedding for
the lodging of its guests." Commissioner of Corps. & Taxation
v. Chilton Club, 318 Mass. 285, 290 (1945). See Tamerlane
Realty Trust v. Board of Appeals of Provincetown, 23 Mass. App.
Ct. 450, 454 (1987). Under § 12B, by contrast, hotels have the
right to remove guests who refuse to pay, are unruly, or violate
posted rules. Rather than provide protections for hotel guests,
§ 12B provides a safe harbor for innkeepers who properly act to
eject customers.
Our reading of § 12B as an innkeeper protection statute is
confirmed by its legislative history. The provision was
inserted, together with G. L. c. 140, §§ 12A, 12C, and 12D, by
chapter 167 of the Acts and Resolves of 2000. Section 12A
defines "hotel," while sections 12C and 12D provide additional
rights for innkeepers: allowing them to refuse service to
certain individuals and to limit the number of guests who may
occupy a room, authorizing certain steps to ensure payment for
rooms and reimbursement for damages to hotel property, and 9
providing a cause of action against guests who negligently or
intentionally damage hotel property or cause injury to others on
the premises. Tellingly, the bill in which these provisions
were included was titled, "An act further establishing the
rights of innkeepers." St. 2000, c. 167.
Accordingly, we hold that § 12B of the innkeeper's statute
is not a consumer protection statute within the meaning of 940
Code Mass. Regs. § 3.16(3).5 Therefore, even if the hotel did
not comply with § 12B in removing the plaintiffs, its
noncompliance would not amount to a per se violation of c. 93A.
On the other hand, even if the hotel had properly removed the
plaintiffs under the provisions of § 12B, its compliance would
not automatically insulate it from liability under c. 93A.
"Legality of underlying conduct is not necessarily a defense to
a claim under c. 93A." Kattar v. Demoulas, 433 Mass. 1, 13
(2000). Whether an act or practice violates c. 93A is based on
the totality of the circumstances. See Herman v. Admit One
Ticket Agency LLC, 454 Mass. 611, 616 (2009); Kattar, supra at
13-14. Thus, whether the defendants' alleged unfair or
deceptive act or conduct was authorized by § 12B is one factor
5 Even if § 12B were a consumer protection statute, a violation would not be a per se violation of c. 93A unless "the conduct leading to the violation is both unfair or deceptive and occurs in trade or commerce." Klairmont, 465 Mass. at 174. 10
that should be considered, but is not dispositive. See Herman,
supra; Schubach v. Household Fin. Corp., 375 Mass. 133, 137
(1978).6
We reject the defendants' suggestion that § 12B authorizes
innkeepers to remove guests for violations of unwritten
policies. While innkeepers need not post all of their policies
or rules, they may claim the protection of § 12B to remove
guests only if the policy or rule violated is prominently
posted. Still, whether the hotel's removal of the plaintiffs in
this case comported with § 12B cannot be resolved at the summary
judgment stage. Genuine disputes of fact apart from the
plaintiffs' alleged policy violation exist about whether the
plaintiffs were removed in compliance with § 12B, for example,
for causing a disturbance. Although their removal is not the
sole basis for the plaintiffs' c. 93A claim, the hotel's
compliance or noncompliance with § 12B should be considered, and
given whatever weight the trier of fact may attach to it, in
assessing the merits of the c. 93A claim.
6 For example, if the defendants had posted their new no solicitation policy by the front desk and in every room, but failed to inform the plaintiffs about the policy in advance, knowing the purpose of the plaintiffs' upcoming stay, this conduct might still be considered unfair or deceptive in the circumstances of this case. 11
2. Unfair or deceptive trade practices. General Laws
c. 93A, § 2, makes unlawful "unfair or deceptive acts or
practices in the conduct of any trade or commerce."7 An act or
practice violates c. 93A if it is either unfair or deceptive, as
"[t]he proscription is disjunctive." Lee v. Conagra Brands,
Inc., 958 F.3d 70, 76 (1st Cir. 2020). See Massachusetts Farm
Bur. Fed'n, Inc. v. Blue Cross of Mass., Inc., 403 Mass. 722,
729 (1989) ("An act or practice may be 'unfair' within the
statutory meaning without being deceptive or fraudulent");
Cherick Distribs., Inc. v. Polar Corp., 41 Mass. App. Ct. 125,
128 (1996) ("deception is only one prong of the prohibited
conduct under G. L. c. 93A").8 "[W]hether a particular set of
acts, in their factual setting, is unfair or deceptive is a
question of fact. But whether conduct found to be unfair or
deceptive rises to the level of a chapter 93A violation is a
7 The plaintiffs' complaint does not specify whether their c. 93A claim is brought under § 9 or § 11. Although they alleged that they sent a demand letter, as required by § 9, we note that the plaintiffs are two individuals and one corporation and that their claim might be viewed as arising under § 11, as their alleged injuries stem from losses incurred in their conduct of trade or commerce, which led to a loss of money or property. See Giuffrida v. High Country Investor, Inc., 73 Mass. App. Ct. 225, 237 (2008). In any event, the parties do not raise this issue on appeal.
8 Although not every unfair act or practice is deceptive, almost all deceptive acts and practices are unfair. See Nei v. Burley, 388 Mass. 307, 312-313 (1983). 12
question of law" (quotations and citation omitted). H1 Lincoln,
Inc. v. South Washington St., LLC, 489 Mass. 1, 13-14 (2022).
The plaintiffs argue that their ouster was both unfair and
deceptive. Given the many disputed issues of material fact, we
agree that summary judgment should not have entered. The
materials in the summary judgment record, viewed in the light
most favorable to the plaintiffs, are sufficient to permit a
finder of fact to determine that the defendants' conduct
violated c. 93A.
To assess whether an act or practice is "unfair," "[w]e
focus on the nature of challenged conduct and on the purpose and
effect of that conduct as the crucial factors." Massachusetts
Employers Ins. Exch. v. Propac-Mass, Inc., 420 Mass. 39, 42
(1995). "We have stated that a practice or act will be unfair
under G. L. c. 93A, § 2, if it is (1) within the penumbra of a
common law, statutory, or other established concept of
unfairness; (2) immoral, unethical, oppressive, or unscrupulous;
or (3) causes substantial injury to competitors or other
business people." Heller Fin. v. Insurance Co. of N. Am., 410
Mass. 400, 408 (1991).
The evidence, considered in the light most favorable to the
plaintiffs, shows that they made arrangements to stay at the
defendants' hotel, reserving suites and shipping merchandise to
the hotel as they had done in the past without incident. The 13
hotel accepted the plaintiffs' reservations with full knowledge
of their purpose and practices, even receiving the plaintiffs'
advance shipment of five boxes of merchandise. The plaintiffs
traveled to the hotel in reliance on the front desk clerk's
affirmative representation that their business visit would be
welcomed and accommodated. When the plaintiffs arrived, the
hotel seemingly invented a rule to thwart the very reason for
their stay. The hotel's managers could not offer a cogent
explanation of their rule change or produce a copy of their no
solicitation policy or do not rent list, but they nonetheless
called the police to have the plaintiffs physically removed.
The plaintiffs were forced to cancel or reschedule appointments,
find alternative accommodations, make new arrangements for
transportation of their merchandise, and suffer losses to their
business prospects and reputations.
Two aspects of the hotel's conduct, if proven, stand out as
unfair within the meaning of c. 93A. One is that the hotel
allowed the plaintiffs to make travel plans, ship merchandise,
and arrange to meet with clients, all the time knowing that the
hotel would upend the plaintiffs' plans and disrupt their
business as soon as they arrived. This sort of "stringing
along" conduct has been held to be actionable under c. 93A.
See, e.g., H1 Lincoln, Inc., 489 Mass. at 16, quoting Greenstein
v. Flatley, 19 Mass. App. Ct. 351, 356 (1985) ("Stringing along 14
tactics involve the use of a protracted 'pattern of conduct
. . . calculated to misrepresent the true situation' to the
target business and thereby induce detrimental reliance on the
target's part"). The other is that when the hotel sought to
oust the plaintiffs, it purported to justify its actions based
on what the trier of fact could find to be a policy that did not
exist, obscuring whatever true motives the hotel may have had.
See Exhibit Source, Inc. v. Wells Ave. Business Ctr., LLC, 94
Mass. App. Ct. 497, 501 (2018) (violation of c. 93A supported by
evidence that defendant provided "manufactured" and pretextual
reasons for its actions).
The defendants argue that their conduct was justified
because the plaintiffs' customers, coming in and out of the
hotel, might pose a security threat; that their failure to
disclose their supposed no solicitation policy to the plaintiffs
in advance was no different from failing to notify arriving
guests that a particular amenity might not be available; and
that their conduct was at worst imperfect customer service,
falling below the level of a c. 93A violation. We are not
persuaded that these reasons entitle the defendants to judgment
as a matter of law. Knowing the business purpose of the
plaintiffs' stay, the hotel's failure to tell them in advance
that they could not do business there was unlike neglecting to
warn that an elliptical machine in the hotel gym was out of 15
order, and more akin to neglecting to tell arriving guests that
rooms are not furnished with beds. While the defendants will
have an opportunity to explain their conduct to the trier of
fact, the plaintiffs are entitled to an opportunity to persuade
the fact finder that this sequence of events, as described by
the plaintiffs, was unfair and caused substantial injury to
their business.
The defendants' conduct could also be found to be deceptive
within the meaning of c. 93A. "An act or practice will be found
deceptive 'if, first, there is a representation, omission, or
practice that, second, is likely to mislead consumers acting
reasonably under the circumstances, and third, the
representation, omission, or practice is material.'"
Commonwealth v. AmCan Enters., Inc., 47 Mass. App. Ct. 330, 334
(1999), quoting Cliffdale Assocs., Inc., 103 F.T.C. 110, 165
(1984). A deceptive practice is one that "could reasonably be
found to have caused a person to act differently from the way he
otherwise would have acted." Purity Supreme, Inc. v. Attorney
Gen., 380 Mass. 762, 777 (1980), quoting Lowell Gas Co. v.
Attorney Gen., 377 Mass. 37, 51 (1979).
Viewing the summary judgment record in the light most
favorable to the plaintiffs, the hotel knew the purpose of their
reservations and affirmatively represented that the plaintiffs
were welcome to stay there and do business as they had done in 16
the past. The hotel argues that its failure to inform the
plaintiffs of the change in policy was not a material omission
because the ability to display items for sale is not a "central
feature" of the services offered by a hotel. See Tomasella v.
Nestlé USA, Inc., 962 F.3d 60, 72 (1st Cir. 2020), quoting Hall
v. SeaWorld Entertainment, Inc., 747 F. App'x 449, 453 (9th Cir.
2018) ("SeaWorld's failure to disclose facts about the poor
treatment of its orca whales was not an unfair or deceptive act
because such treatment '[did] not concern a central feature of
the entertainment experience' inherent to the purchase of
SeaWorld tickets"). Here, however, the ability to display items
for sale was the central purpose of the plaintiffs' visit -- and
the plaintiffs provided competent evidence at the summary
judgment stage to show that the hotel both knew this and
accepted the plaintiffs' reservations, as well as their
shipments of merchandise, with that specific understanding. The
hotel's misrepresentation of assent to the plaintiffs' business
trip could be found to be an affirmative act that misled the
plaintiffs into making a reservation and traveling to the
defendants' hotel, rather than someplace else, which they would
not otherwise have done. See Purity Supreme, Inc., 380 Mass. at
777. At the very least, the plaintiffs have presented a triable
issue of fact whether the hotel's use of an arguably fictitious 17
policy and do not rent list was a deceptive means of forcing
them out of the hotel.9
Conclusion. We vacate so much of the judgment as grants
summary judgment in favor of the defendants on the plaintiffs'
c. 93A claim, and remand the case for further proceedings
consistent with this opinion. The judgment is affirmed in all
other respects.
So ordered.
9 The parties' requests for attorney's fees are denied. If, after remand, judgment is granted in favor of the plaintiffs on their c. 93A claim, the plaintiffs shall be awarded reasonable attorney's fees under that statute. See G. L. c. 93A, §§ 9 (4), 11. Attorney's fees attributable to this appeal and any proceedings after remand may be included in the award. See Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 272 (1985).