NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1441
JESSICA M. PERRAULT
vs.
BARBARA BROOKS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Jessica M. Perrault (plaintiff), brought a
small claims action in the Housing Court against her landlord,
Barbara Brooks (defendant), seeking reimbursement for
electricity fees that she paid as the defendant's tenant and
alleging a violation of G. L. c. 93A. A first assistant clerk-
magistrate awarded the plaintiff $1,245.10, which included
$334.40 in damages and $761 in attorney's fees. After the
defendant appealed the judgment pursuant to G. L. c. 218, § 23,
a judge of the Housing Court found for the plaintiff but altered
the award to $1,211.30, which included $668.80 in damages and
attorney's fees of $442.50. In appealing from the judgment, the
plaintiff argues that the judge (1) made erroneous factual findings and evidentiary errors concerning the production of
evidence, (2) undercounted actual damages and attorney's fees,
and (3) violated the plaintiff's due process rights. We affirm.
Background. In April 2017, the plaintiff and defendant
entered into a rental agreement for the plaintiff to lease an
apartment. The rental agreement did not include whether the
plaintiff or defendant would pay for electricity costs, but the
parties verbally agreed that the plaintiff would pay for
electricity. In July 2018, the defendant installed a "ductless
mini-split" air conditioning and heating system into the
plaintiff's unit. After the installation, the plaintiff noticed
that her electrical usage had increased despite turning off the
mini-split; she notified the defendant in September 2018. After
investigating the problem, the defendant discovered a problem
with the meter where another unit's electric usage was being
counted towards the plaintiff's unit. To remedy the problem,
the defendant agreed to pay $345 to the plaintiff, which
constituted the difference in electricity costs between the
months where the plaintiff's usage had been cross-metered and
the same months from the year prior.
Following this meeting, however, the plaintiff's attorney
served the defendant with a demand letter pursuant to G. L.
c. 93A, alleging several unfair and deceptive acts and practices
2 relating to her tenancy and demanding $6,458.16. At trial, the
plaintiff argued that she was entitled to all electricity costs
incurred during the time of her tenancy, approximately
$2,663.93, due to a lack of signed agreement specifying her
responsibility to pay electricity under the state sanitary code,
105 Code Mass. Regs. § 410.354 (2005), as well as attorney's
fees of $1,119.15 under G. L. c. 93A. A magistrate awarded the
plaintiff $1,120.40 plus costs of $100.00; the defendant noticed
an appeal, which was untimely, but was granted an extension. A
judge of the Housing Court concluded that the defendant's $345
payment to the plaintiff was an accord and satisfaction that
remedied the problem of the plaintiff's inflated electrical
usage, but determined the plaintiff was entitled to actual
damages of $334.40,1 money damages under G. L. c. 93A of $334.40,
and attorney's fees in the amount of $442.50.
Discussion. 1. Burden of producing evidence. The
plaintiff first argues that the judge committed several errors
in his factual findings and conclusions of law concerning the
production of evidence, asserting the following: (1) the judge
erred in finding the plaintiff did not submit evidence to
demonstrate violations of the warranty of habitability because
1 The plaintiff incurred $334.40 in electricity charges from the time she sent the demand letter pursuant to G. L. c. 93A until she vacated the unit in February 2020.
3 it was the defendant's responsibility to submit the Board of
Health inspection report into evidence; (2) the judge erred in
finding the defendant's violation of the state sanitary code did
not cause the plaintiff's unit to be uninhabitable because the
defendant offered no evidence that the cross-metering problem
was fixed; and (3) the judge committed an evidentiary error by
not asking for the Board of Health inspection report to be
entered into evidence despite it being discussed. These
arguments reflect a misunderstanding of the plaintiff's burden.
It is a basic tenet of our common law that the party bringing a
civil action bears the burden of proving the essential elements
of a claim. See, e.g., Frontier Enters., Inc. v. Anchor Co. of
Marblehead, Inc., 404 Mass. 506, 513 (1989); Smith v. Hill, 232
Mass. 188, 190 (1919). Thus, because it was the plaintiff's
burden to submit evidence to support her claims, the judge did
not commit error here.
2. Damages. The plaintiff also asserts that the judge
erred by failing to award damages for the full relevant time
period, which the plaintiff contends is between when the mini-
splits were installed until the end of her tenancy. The amount
of actual damages is a question of fact for the judge, and "[w]e
will not disturb a judge's findings of fact in a c. 93A claim
4 unless those findings are clearly erroneous." Clegg v. Butler,
424 Mass. 413, 420 (1997).
Because the plaintiff did not request the defendant pay the
electric charges until around December 2018, and the plaintiff
served the defendant with the demand letter on or around January
3, 2020, the judge did not commit clear error in measuring the
plaintiff's actual damages using the period between when the
plaintiff served her chapter 93A demand letter and when she
vacated her unit. See Poncz v. Loftin, 34 Mass. App. Ct. 909,
910-911 (1993) (damages for state sanitary code violation, 105
C.M.R § 410.354 (2005), do not include recovery of tenant's heat
and hot water costs that tenant incurred prior to demand that
landlord pay utilities when "essence of the violation . . . was
the failure to reduce the oral agreement to writing").
Nor was it clear error for the judge, in calculating
damages, to conclude that the defendant's $345 payment to the
plaintiff to reimburse the plaintiff for expenses incurred as a
result of the cross-metering was an accord and satisfaction.
See Williams v. B & K Med. Sys., Inc., 49 Mass. App. Ct. 563,
570 (2000) (accord and satisfaction defense is question of fact
and reviewed for clear error). "The defense of accord and
satisfaction is premised on the principle that '[i]f a creditor,
having . . .
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1441
JESSICA M. PERRAULT
vs.
BARBARA BROOKS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Jessica M. Perrault (plaintiff), brought a
small claims action in the Housing Court against her landlord,
Barbara Brooks (defendant), seeking reimbursement for
electricity fees that she paid as the defendant's tenant and
alleging a violation of G. L. c. 93A. A first assistant clerk-
magistrate awarded the plaintiff $1,245.10, which included
$334.40 in damages and $761 in attorney's fees. After the
defendant appealed the judgment pursuant to G. L. c. 218, § 23,
a judge of the Housing Court found for the plaintiff but altered
the award to $1,211.30, which included $668.80 in damages and
attorney's fees of $442.50. In appealing from the judgment, the
plaintiff argues that the judge (1) made erroneous factual findings and evidentiary errors concerning the production of
evidence, (2) undercounted actual damages and attorney's fees,
and (3) violated the plaintiff's due process rights. We affirm.
Background. In April 2017, the plaintiff and defendant
entered into a rental agreement for the plaintiff to lease an
apartment. The rental agreement did not include whether the
plaintiff or defendant would pay for electricity costs, but the
parties verbally agreed that the plaintiff would pay for
electricity. In July 2018, the defendant installed a "ductless
mini-split" air conditioning and heating system into the
plaintiff's unit. After the installation, the plaintiff noticed
that her electrical usage had increased despite turning off the
mini-split; she notified the defendant in September 2018. After
investigating the problem, the defendant discovered a problem
with the meter where another unit's electric usage was being
counted towards the plaintiff's unit. To remedy the problem,
the defendant agreed to pay $345 to the plaintiff, which
constituted the difference in electricity costs between the
months where the plaintiff's usage had been cross-metered and
the same months from the year prior.
Following this meeting, however, the plaintiff's attorney
served the defendant with a demand letter pursuant to G. L.
c. 93A, alleging several unfair and deceptive acts and practices
2 relating to her tenancy and demanding $6,458.16. At trial, the
plaintiff argued that she was entitled to all electricity costs
incurred during the time of her tenancy, approximately
$2,663.93, due to a lack of signed agreement specifying her
responsibility to pay electricity under the state sanitary code,
105 Code Mass. Regs. § 410.354 (2005), as well as attorney's
fees of $1,119.15 under G. L. c. 93A. A magistrate awarded the
plaintiff $1,120.40 plus costs of $100.00; the defendant noticed
an appeal, which was untimely, but was granted an extension. A
judge of the Housing Court concluded that the defendant's $345
payment to the plaintiff was an accord and satisfaction that
remedied the problem of the plaintiff's inflated electrical
usage, but determined the plaintiff was entitled to actual
damages of $334.40,1 money damages under G. L. c. 93A of $334.40,
and attorney's fees in the amount of $442.50.
Discussion. 1. Burden of producing evidence. The
plaintiff first argues that the judge committed several errors
in his factual findings and conclusions of law concerning the
production of evidence, asserting the following: (1) the judge
erred in finding the plaintiff did not submit evidence to
demonstrate violations of the warranty of habitability because
1 The plaintiff incurred $334.40 in electricity charges from the time she sent the demand letter pursuant to G. L. c. 93A until she vacated the unit in February 2020.
3 it was the defendant's responsibility to submit the Board of
Health inspection report into evidence; (2) the judge erred in
finding the defendant's violation of the state sanitary code did
not cause the plaintiff's unit to be uninhabitable because the
defendant offered no evidence that the cross-metering problem
was fixed; and (3) the judge committed an evidentiary error by
not asking for the Board of Health inspection report to be
entered into evidence despite it being discussed. These
arguments reflect a misunderstanding of the plaintiff's burden.
It is a basic tenet of our common law that the party bringing a
civil action bears the burden of proving the essential elements
of a claim. See, e.g., Frontier Enters., Inc. v. Anchor Co. of
Marblehead, Inc., 404 Mass. 506, 513 (1989); Smith v. Hill, 232
Mass. 188, 190 (1919). Thus, because it was the plaintiff's
burden to submit evidence to support her claims, the judge did
not commit error here.
2. Damages. The plaintiff also asserts that the judge
erred by failing to award damages for the full relevant time
period, which the plaintiff contends is between when the mini-
splits were installed until the end of her tenancy. The amount
of actual damages is a question of fact for the judge, and "[w]e
will not disturb a judge's findings of fact in a c. 93A claim
4 unless those findings are clearly erroneous." Clegg v. Butler,
424 Mass. 413, 420 (1997).
Because the plaintiff did not request the defendant pay the
electric charges until around December 2018, and the plaintiff
served the defendant with the demand letter on or around January
3, 2020, the judge did not commit clear error in measuring the
plaintiff's actual damages using the period between when the
plaintiff served her chapter 93A demand letter and when she
vacated her unit. See Poncz v. Loftin, 34 Mass. App. Ct. 909,
910-911 (1993) (damages for state sanitary code violation, 105
C.M.R § 410.354 (2005), do not include recovery of tenant's heat
and hot water costs that tenant incurred prior to demand that
landlord pay utilities when "essence of the violation . . . was
the failure to reduce the oral agreement to writing").
Nor was it clear error for the judge, in calculating
damages, to conclude that the defendant's $345 payment to the
plaintiff to reimburse the plaintiff for expenses incurred as a
result of the cross-metering was an accord and satisfaction.
See Williams v. B & K Med. Sys., Inc., 49 Mass. App. Ct. 563,
570 (2000) (accord and satisfaction defense is question of fact
and reviewed for clear error). "The defense of accord and
satisfaction is premised on the principle that '[i]f a creditor,
having . . . [a] disputed claim against [her] debtor, accepts a
5 sum smaller than the amount claimed in satisfaction of the
claim, [she] cannot afterwards maintain an action for the unpaid
balance of his original claim.'" Cuddy v. A & E Mech., Inc., 53
Mass. App. Ct. 901, 901 (2001), quoting Chamberlain v. Barrows,
282 Mass. 295, 299 (1933). While the plaintiff argued that the
$345 payment only partially reimbursed her for the extra costs
she incurred from the cross-metering, the record reflects that
the defendant offered the payment as full reimbursement for the
cross-metering charges, and the plaintiff accepted the payment
with this understanding. See Wong v. Paisner, 14 Mass. App. Ct.
923, 924 (1982) ("acceptance and deposit of a check offered in
full payment of a disputed claim constituted an accord and
satisfaction and bar[red] an attempt to collect any balance
outstanding"). See also Malave v. Carney Hosp., 170 F.3d 217,
222 (1st Cir. 1999) ("accord and satisfaction requires a
voluntary, mutually assented to exchange of money for a
release").
The plaintiff also argues that the judge erred in his
calculation of attorney's fees by undercounting the number of
hours the plaintiff's attorney spent working on the action. We
review an award of attorney's fees for abuse of discretion. See
WHTR Real Estate Ltd. Partnership v. Venture Distrib., Inc., 63
Mass. App. Ct. 229, 235 (2005). Here, the plaintiff has not
6 offered a sufficient reason to suggest the judge abused his
discretion, particularly given that the judge took note of the
plaintiff's billing records and reduced the award given by the
magistrate. See Blake v. Hometown America Communities, Inc.,
486 Mass. 268, 284-285 (2020). As such, we decline to disturb
the judge's award of attorney's fees where the judge used the
lodestar method to identify the number of hours reasonably spent
by the plaintiff's attorney on the chapter 93A claim and
determined the hourly rate to be reasonable. See Siegel v.
Berkshire Life Ins. Co., 64 Mass. App. Ct. 698, 706 (2005).
2. Due process. The plaintiff also asserts multiple
arguments concerning her right to due process. Specifically,
the plaintiff claims that the judge did not give the plaintiff a
chance to address statements made by the defendant that were
"false, hearsay, or misleading." However, the plaintiff does
not identify any specific statements she takes issue with.
Thus, this contention does not rise to the level of appellate
argument, and we decline to consider the point further. See
Mass. R. A. P. 16 (a) (4), as appearing in 481 Mass. 1628
(2019).
The plaintiff also argues that she was not afforded the
opportunity to address the defendant's alleged violation of
7 G. L. c. 186, § 15D.2 We review trial management decisions by
judges for abuse of discretion. See Greenleaf v. Massachusetts
Bay Transp. Auth., 22 Mass. App. Ct. 426, 429 (1986). The
plaintiff did not complain of the defendant's alleged failure to
deliver a copy of the new lease in her statement of small
claims, and only briefly mentioned the issue at trial without
providing any legal authority. Upon review of the record, we
conclude that the judge did not abuse his discretion. The
plaintiff was given ample opportunity to present her case, and
the judge acted appropriately as manager of the trial to focus
the parties on the issues reflected in the plaintiff's statement
of small claims and those primarily raised at trial. See
Goldman v. Ashkins, 266 Mass. 374, 380 (1929) ("The trial ought
continuously to march forward without repetitions and without
diversions into collateral or disconnected matters. The judge
ought to be always the guiding spirit and the controlling mind
at a trial in this as in other particulars").
Finally, the plaintiff argues the judge erred in allowing
the defendant's late appeal of the magistrate's judgment. See
G. L. c. 218, § 23 (defendant may file claim of trial by jury
2 The section provides in relevant part: "A lessor who has agreed orally to execute a lease and obtains the signature of the lessee shall, within thirty days thereafter, deliver a copy of said lease to the lessee, duly signed and executed by said lessor."
8 within ten days of receiving adverse small claims judgment). In
granting the defendant an extension and crediting the
defendant's claims that she did not receive the judgment by mail
and subsequently called the clerk's office to remain apprised of
the case, the judge did not abuse his discretion. See Travis v.
McDonald, 397 Mass. 230, 234 (1986) (judge has discretion to
decide small claims case should be heard by jury).3
Judgment affirmed.
By the Court (Henry, Smyth & Toone, JJ.4),
Clerk
Entered: August 22, 2025.
3 Regarding additional claims raised by the plaintiff, we conclude that they do not merit further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954) ("Other points, relied on by the [appellant] but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion").
4 The panelists are listed in order of seniority.