Colonial Estates Associates v. Montagna

• Court: Appeals Court of Massachusetts
• Writing for the Court: Before GREANEY
• Citation: Colonial Estates Associates v. Montagna, 469 N.E.2d 1301, 18 Mass.App.Ct. 972 (Mass. App. 1984)
• Decision Date: 31 October 1984
• Parties: COLONIAL ESTATES ASSOCIATES v. Donna MONTAGNA.

Page 1301

469 N.E.2d 1301

18 Mass.App.Ct. 972

COLONIAL ESTATES ASSOCIATES v. Donna MONTAGNA.

Appeals Court of Massachusetts Hampden.

Argued Oct. 2, 1984.

Decided Oct. 31, 1984.

John D. Stuebing, Springfield (J. Paterson Rae, Worcester, with him), for defendant.

Charles W. Danis, Jr., Springfield, for plaintiff.

Before GREANEY, C.J., and ARMSTRONG and SMITH, JJ.

RESCRIPT.

This summary process action was tried to a jury, which found for the defendant (tenant). The lease included a provision allowing the landlord to recover his attorney's fees if he should be successful in prosecuting such an action. By operation of G.L. c. 186, § 20, inserted by St.1977, c. 159, § 1, the lease contained an "implied ... covenant by the landlord to pay to the tenant the reasonable attorneys' fees and expenses incurred by the tenant" if the tenant should prevail. The court denied the tenant's application for the assessment of such fees on the ground that the tenant, as an indigent person, had been represented by a legal services organization and thus had incurred no fee. In Lincoln Street Realty Co. v. Green, 374 Mass. 630, 373 N.E.2d 1172 (1978), it was held that a tenant so represented could not recover an attorney's fee under an express contractual provision that either the landlord or tenant was to be reimbursed for attorneys' fees incurred in successfully prosecuting or defending such an action. The question here presented was expressly left open. Id., at 632 n. 2, 373 N.E.2d 1172.

In Torres v. Attorney General, 391 Mass. 1, 14-15, 460 N.E.2d 1032 (1984), it was held that a plaintiff successfully suing for damages under the Fair Information Practices Act (G.L. c. 66A, inserted by St.1975, c. 776, § 1) was entitled to an award of attorneys' fees under the statutory provision therefor (G.L. c. 214, § 3B, as amended by St.1977, c. 691, § 14), despite the fact that he was represented by a legal services organization. It was observed (at 14, 460 N.E.2d 1032) that other courts had reached the same conclusion under "statute[s] similar to the FIPA " and (at 15, 460 N.E.2d 1032) that the legislative goals of encouraging private law enforcement and discouraging non-compliance "have been given more weight in construing the word 'incurred' in the context of such statutes than has the meaning of the word in a debtor-creditor sense" (emphasis added in both instances). Violations of statutes of the type referred to often involve little in the way of actual, provable monetary damages, with the consequence that the remedy by litigation will often be illusory unless the cost of litigation is transferred...