Henry v. Bozzuto Mgmt. Co.

• Decision Date: 26 October 2020
• Docket Number: No. 19-P-919,19-P-919
• Citation: 159 N.E.3d 701,98 Mass.App.Ct. 690
• Parties: Molly HENRY & others v. BOZZUTO MANAGEMENT COMPANY.
• Court: Appeals Court of Massachusetts

98 Mass.App.Ct. 690

159 N.E.3d 701

Molly HENRY & others¹

v.BOZZUTO MANAGEMENT COMPANY.

No. 19-P-919

Appeals Court of Massachusetts, Essex..

Argued May 4, 2020.

Decided October 26, 2020.

Orestes G. Brown for the plaintiffs.

Donna M. Ashton, Boston, for the defendant.

Present: Neyman, Englander, & Hand, JJ.

HAND, J.

The plaintiffs, Molly Henry and Jon Henry, brought suit against the defendant, Bozzuto Management Company, alleging on behalf of themselves and "all others similarly situated" that the defendant had mishandled tenants' security deposits, violating G. L. c. 186, § 15B ; 940 Code Mass. Regs. § 3.17 ; and G. L. c. 93A. The action, initiated in the Superior Court, was transferred to the Housing Court. Having stayed certain discovery in the case, a judge of the Housing Court denied the plaintiffs' motion for class certification and entered summary judgment in favor of the defendant on all claims. On appeal, the Henrys argue that the judge erred in denying the Henrys' motion for class certification, allowing the defendant's motion for summary judgment on the plaintiffs' claims under G. L. c. 186, § 15B (4) (iii) (G. L. c. 186 claims), and G. L. c. 93A, § 9 (G. L. c. 93A claims), and allowing the defendant's motion to quash the Henrys' deposition subpoena. We discern no error in the denial of the motion for class certification or in the allowance of the motion to quash; however, we conclude that the entry of summary judgment for the defendant on the plaintiffs' G. L. c. 186 and G. L. c. 93A claims was improper. We remand the case to the Housing Court for further proceedings consistent with this opinion, including the entry of judgment for the Henrys on the G. L. c. 186 claims.²

Facts. The following facts are uncontested. In December, 2013, the Henrys entered into a one-year written lease with AvalonBay Communities, Inc. (AvalonBay), for an apartment in a building in Danvers (Danvers property). They completed a "Move-In/Move-Out Checklist" on AvalonBay's preprinted form.³ In addition to the first month's rent, the Henrys provided Avalonbay with a $1,250 security deposit.

During the Henrys' tenancy, Avalonbay sold the Danvers property. At the time that the Henrys signed another lease in September, 2014, the defendant managed the Danvers property. The Henrys' security deposit was carried over to the new tenancy without the completion of a new security deposit agreement.

The Henrys terminated their lease on September 1, 2015, prior to its contractual end date of December 17, 2015. By letter dated September 15, 2015, the defendant advised the Henrys that they owed a balance of $102.94 over the amount of their security deposit. The letter enclosed an unsigned spreadsheet titled "Move Out Statement," which identified certain charges and payments, including "damages" of $1,260, assessed against the Henrys at the time that they left the apartment.⁴ On October 3, 2015, Jon Henry contacted the defendant seeking a more detailed explanation of the damages to which the security deposit had been applied. In response, the defendant provided the Henrys with several photographs of the apartment condition after their move, an invoice for replacement carpet, and an invoice from a cleaning service. On October 7, 2015, thirty-six days after the Henrys' departure, the defendant sent them a copy of the "Move-In/Move-Out Checklist" that they had completed in 2013. But see G. L. c. 186, § 15B (4) (iii) (landlord required to provide tenant with itemized list of damages within thirty days of termination of tenancy). The form included notations concerning the "move-out condition" of the apartment, and a signature by a representative of "management,"⁵ but it had not been signed by the Henrys.

As far as the record reveals, the Henrys had no additional contact with the defendant until nearly a year later. On October 6, 2016, the Henrys sent G. L. c. 93A, § 9 (3), demand letters to the defendant on behalf of themselves and a putative class of similarly-situated former tenants seeking (1) return of three times the Henrys' security deposit, (2) return of three times the security deposits of each "similarly situated" person, and (3) the defendant's agreement not to commit "any further violations of [G. L. c.] 186, § 15B." The defendant made two efforts to settle the case: on November 7, 2016,⁶ the defendant offered to settle all claims for $2,500; on December 1, 2016, the defendant tendered a check made out to the Henrys for the full amount of the Henrys' demand to settle their individual claims, $3,875.⁷ Neither the settlement offer nor the tender addressed the Henrys' claims on behalf of others "similarly situated." The Henrys rejected both the offer and the tender.

On December 9, 2016, the Henrys filed suit in the Superior Court on behalf of themselves and a putative class of others "similarly situated." The complaint alleged violations of G. L. c. 186, § 15B (2) (c ), as "per se unfair and deceptive practices" under 940 Code Mass. Regs. § 3.17(4)(e) (count I);⁸ violations of G. L. c. 186, § 15B (4), as "per se unfair and deceptive practices" under 940 Code Mass. Regs. § 3.17(4)(f) and (g) (count II); and violations of G. L. c. 93A for the practices alleged in the first two counts (count III). The plaintiffs' claims for relief included the return of three times all plaintiffs' unlawfully retained security deposits; trebled nominal damages of at least twenty-five dollars for each plaintiff; injunctive relief requiring the defendant to cease violation of G. L. c. 186, § 15B ; and attorney's fees and costs.

Procedural history. Following both motion practice in the Superior Court and a petition to a single justice of this court, the defendant removed the action to the Housing Court. At a case management conference, the parties stipulated in writing to a discovery schedule. The schedule included deadlines for document requests, interrogatories, and requests for admissions, as well as for motions for summary judgment and class certification, but did not provide for noticing or taking depositions before the motions referred to in the stipulation were decided.⁹ The parties exchanged written discovery. In responding to the defendant's request for admissions, each of the Henrys affirmed, under the pains and penalties of perjury, that they knew of other "similarly situated" tenants and of how the defendant produced its documents and correspondence.

On June 7, 2018, the Henrys served the defendant with a deposition notice pursuant to Mass. R. Civ. P. 30 (b) (6), 365 Mass. 780 (1974); the attached schedule A identified thirty-nine topics of inquiry and sought information about at least twenty-two properties managed by the defendant, and about "all other similarly situated" tenants. The defendant moved to quash the subpoena; the Henrys objected. The judge held a hearing on the motion to quash (which, due to a scheduling error, plaintiffs' counsel did not attend¹⁰ ), afterward staying all depositions pending further court order. After another hearing in August, 2018, at which the Henrys' attorney did appear, the judge again stayed all depositions pending further order of the court -- from the hearing transcript, we conclude that the judge intended to revisit the stay, if necessary, after the resolution of the parties' motions for class certification and summary judgment.

The plaintiffs filed their motion for class certification and the defendant filed its motion for summary judgment; each side opposed the motion of the other. After a January 28, 2019, hearing on both motions, the judge denied the plaintiffs' motion for class certification and, citing Phillips v. Equity Residential Mgt., L.L.C., 478 Mass. 251, 85 N.E.3d 12 (2017), and Kohl v. Silver Lake Motors, Inc., 369 Mass. 795, 343 N.E.2d 375 (1976), allowed the defendant's motion for summary judgment, dismissing the Henrys' complaint. The plaintiffs appealed from the judgment.

Discussion. 1. Class certification. We first consider the Henrys' challenge to the denial of their motion for class certification pursuant to G. L. c. 93A. See G. L. c. 93A, § 9A (2). Acknowledging that our review of motions for class certification under G. L. c. 93A, § 9 (2), is "tempered by the ‘public policy of the Commonwealth [which] strongly favors G. L. c. 93A class actions,’ " we are also mindful of the fact that a judge is afforded broad discretion in ruling on a motion for class certification. Bellermann v. Fitchburg Gas & Elec. Light Co., 475 Mass. 67, 71, 54 N.E.3d 1106 (2016), quoting Feeney v. Dell Inc., 454 Mass. 192, 200, 908 N.E.2d 753 (2009). Reviewing for an abuse of that discretion, we discern none. See Layes v. RHP Props., Inc., 95 Mass. App. Ct. 804, 821, 133 N.E.3d 353 (2019).

"A plaintiff will prevail on her motion for certification under c. 93A upon showings that (1) she was ‘entitled to seek relief under c. 93A for ... injuries resulting from the defendant[s' alleged] unfair or deceptive act or practice’; (2) the ‘assertedly unfair or deceptive act or practice that caused [her] injuries "caused similar injury to numerous other persons similarly situated" ’; and (3) the plaintiff ‘would "adequately and fairly represent[ ] such other persons." ’ " Layes, 95 Mass. App. Ct. at 822, 133 N.E.3d 353, quoting Bellermann, 475 Mass. at 72, 54 N.E.3d 1106. See G. L. c. 93A, § 9 (2). The plaintiff bears the burden of providing " ‘information sufficient to enable the motion judge to form a reasonable judgment that the class meets the requirements" of Mass. R. Civ. P. 23, as amended, 471 Mass. 1491 (2015), and G. L. c. 93A, § 9 (2), although it does "not bear the burden of producing evidence sufficient to prove that the requirements have been met’ (emphasis added; citation omitted)."¹¹ Layes, supra, quoting Kwaak v. Pfizer, Inc., 71 Mass. App. Ct. 293, 297, 881 N.E.2d 812 (2008).

Here, the plaintiffs sought class certification pursuant to G. L. c. 93A, § 9 (2), based on their contention that the defendant systematically...