Galinsky v. Segal

2010 Mass. App. Div. 76, 2010 WL 2103020, 2010 Mass. App. Div. LEXIS 27
CourtMassachusetts District Court, Appellate Division
DecidedMarch 29, 2010
StatusPublished

This text of 2010 Mass. App. Div. 76 (Galinsky v. Segal) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Galinsky v. Segal, 2010 Mass. App. Div. 76, 2010 WL 2103020, 2010 Mass. App. Div. LEXIS 27 (Mass. Ct. App. 2010).

Opinion

Curtin, J.

Blair Galinsky (“Galinsky”) commenced this G.L.c. 186, §15B action to recover the security deposit he had paid on his rental of a house from David Segal, Trustee of the 39 Deerhaven Realty Trust (“Segal”). The complaint sought statutory treble damages and attorney’s fees. Segal counterclaimed for alleged damage to the property, unpaid water and septic bills, lost rent, and other costs. After a jury-waived trial, judgment was entered for Galinsky. Segal filed this appeal.

The record indicates that on July 11,2005, the parties executed a written lease for Galinsky’s rental of Segal’s single-family house in Lincoln for a one-year term ending July 14, 2006 at a monthly rent of $3,500.00. At the commencement of the term, Galinsky paid the first and last month’s rent, plus a $3,500.00 security deposit. The parties extended the lease for an additional year to July 14, 2007. Galinsky did not vacate the premises until August 14, 2007, and paid use and occupancy for that last month.

Segal claimed in this action that all utilities were to be paid by Galinsky pursuant to paragraph 13 of the lease that required the tenant to pay for “fuel, heat, electricity, gas, telephone and other utilities.” At the outset of the tenancy, however, Segal gave Galinsky a handwritten “welcoming note” that, inter alia, instructed Galinsky to “refer to the landlord” the septic system and water bills. Segal, in fact, paid all water bills, and never submitted a water or septic system bill to Galinsky during his tenancy. Segal had the septic system pumped out only after Galinsky vacated the premises.

On August 30, 2007, Segal signed an itemized list of alleged damages that he intended to deduct from Galinsky’s security deposit. Although Galinsky had vacated the premises more than two weeks earlier and had left a forwarding address with the post office, Segal elected to send his damages list to Galinsky by regular mail addressed to Galinsky at the vacant rental property. Not surprisingly, Galinsky never received it. Further, although Segal’s list was notarized and signed by him under the pains and penalties of peijury, it did not include any evidence, beyond Segal’s unsubstantiated assertions, of the estimated or actual cost of repairing the alleged damage [77]*77or of the claimed bills.2 Segal also included with the list two checks for $85.00, representing interest on Galinsky’s last month’s rent and security deposit. As noted, Galinsky never received the mailing.

By letter dated September 13, 2007, Segal sent an “updated” list of damages to Galinsky’s counsel, Attorney Edward Lonergan (“Lonergan”), stating that he still retained Galinsky’s $3,500.00 security deposit and “welcome [d] [Lonergan’s] direction and input on how [he] should apply the security deposit to the outstanding bills for usage, the bills for repairs, and the damages regarding [his] loss of rent.” Again, Segal failed to include any actual evidence substantiating the amounts of the deductions he sought.

Segal leased the house to a new tenant in September, 2007. Only days into that tenancy, the new tenant informed Segal that he had found Galinsky’s missing cat. Galinsky retrieved his cat shortly thereafter. In a subsequent letter to Lonergan, Segal asserted that the cat’s presence in the rental property had extended Galinsky’s tenancy.

After unsuccessful written demands by his attorney in September, 2007 for the return of his security deposit, Galinsky commenced this action on November 5, 2007. Pursuant to G.L.c. 186, §15B(7), the complaint sought treble damages, costs, and attorney’s fees for Segal’s violation of §15B(6) (e) in failing to return Galinsky’s security deposit within 30 days of the end of his tenancy. The complaint also claimed that having failed to comply with the requirements of §15B (4) (iii), Segal was not entitled to take any deductions from the deposit. G.L.c. 186, §15B(6)(b). As noted, Segal counterclaimed for property damage, lost rent, unpaid septic system and water bills, and other alleged costs.

At a January 25, 2008 pretrial conference, the trial court ordered the parties to “exchange documents w[ith] each other to [the] extent they exist” no later than March 17, 2008, and scheduled the case for trial on May 30, 2008.

On April 22, 2008, Galinsky served Segal with requests for admissions. Segal responded on May 16,2008, admitting that (1) Galinsky had vacated the rental property on August 14, 2007; (2) Galinsky had demanded return of the security deposit on September 18, 2007; and (3) Segal had failed to return the security deposit to Galinsky within 30 days after termination of the lease.

On the day of trial, Galinsky’s new counsel, Attorney Leonard A. Frisoli (“Frisoli”), filed a motion in limine to prohibit Segal’s introduction into evidence of the August, 2007 damages list because it had not been received by Galinsky’s counsel before the March 17, 2008 discovery deadline. The trial judge took the motion under advisement, indicating that he would rule on objections to evidence based on the discovery order as the trial progressed. During trial, the court excluded the August, 2007 damages list.

The trial judge found, inter alia, that (1) pursuant to the lease and Segal’s hand[78]*78written “welcoming note,” Segal was responsible for payment of water and septic system charges; (2) Galinsky had vacated the rental property on August 14, 2007, and Galinsky’s missing cat, later found on the premises, did not extend Galinsky’s tenancy or occupancy; (3) Segal failed to return the $3,500.00 deposit within 30 days after termination of the lease, as required by G.L.c. 186, §15B(4); (4) Segal failed, within the same 30 days, to give Galinsky an itemized list of damages, sworn to and supported by proper documentation, as required by G.L.c. 186, §15B(4) (iii); and (5) at the termination of the tenancy, Galinsky owed no payment of rent or water bills to Segal. Based on these facts, the trial judge concluded that Segal had violated G.L.c. 186, §15B (6) (b) and (6) (e), and, thus, had “forfeit[ed] his right to retain any portion of the security deposit for any reason, or ... to counterclaim for any damage to the premises.” G.L.c. 186, §15B (6). The judge ruled that Galinsky was entitled to recover three times the amount of the security deposit, plus interest, costs, and attorney’s fees, under G.L.C. 186, §15B(7).

Segal moved for reconsideration or a new trial, and both Frisoli and Lonergan filed affidavits for attorney’s fees. After a hearing, the trial court reaffirmed its decision, denied Segal’s motion, and awarded Galinsky $11,710.00 in legal fees. Judgment in favor of Galinsky in the total amount of $22,634.85 (treble damages, interest, costs, and attorneys' fees) was entered on August 27, 2008. The trial court subsequently denied a second motion for reconsideration by Segal.

1. Exclusion of Damages List Contrary to Segal’s initial argument on appeal, there was no prejudicial error in the trial judge’s exclusion at trial of Segal’s August, 2007 purported damages list as a sanction for his failure to furnish it to Galinsky before the discovery deadline.3

A trial judge enjoys substantial latitude in pretrial and trial management, including the scope and timing of discovery, the granting of motions in limine, and the admission or exclusion of evidence generally. Mazzoleni v. Cotton, 33 Mass. App. Ct. 147, 150-151 (1992).

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Bluebook (online)
2010 Mass. App. Div. 76, 2010 WL 2103020, 2010 Mass. App. Div. LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/galinsky-v-segal-massdistctapp-2010.