Slater v. Traynor Mgmt., 21-P-1055

CourtAppeals Court of Massachusetts
Writing for the CourtSACKS, J.
PartiesJACOB SLATER & another [1] v. TRAYNOR MANAGEMENT, INC. si, & another. [2]
Docket Number21-P-1055
Decision Date16 September 2022

JACOB SLATER & another [1]


No. 21-P-1055

Appeals Court of Massachusetts, Suffolk

September 16, 2022

Heard: June 7, 2022.

Civil action commenced in the Eastern Division of the Houng Court Department on December 11, 2020. The case was heard by Irene H. Bagdoian, J., on a motion for summary judgment, and a motion for reconsideration was also heard by her.

Lenard B. Zide for the defendants.

John A. Mangones for the plaintiffs.

Present: Neyman, Sacks, & D'Angelo, JJ.


The defendants, a rental property management company and the property owner (collectively, the landlord),


appeal from a Housing Court judgment concluding, on the plaintiff tenants' motion for summary judgment, that the landlord had failed timely to return the tenants' security deposit as required by G. L. c. 186, § 15B. The judgment requires the landlord to pay damages equal to three times the deposit plus interest, together with costs and attorney's fees. See G. L. c. 186, § 15B (7). On appeal, the landlord argues that the motion judge (1) abused her discretion in ruling on a discovery matter that the landlord raised in opposing summary judgment, (2) erred in ordering summary judgment where there remained genuine issues of material fact regarding whether the landlord had violated the statute, (3) erred in declining to recognize the landlord's force majeure defense based on the COVID-19 pandemic, and (4) abused her discretion in awarding $17,780 in attorney's fees where the amount of the security deposit, trebled, was only $7,275. We affirm.


We recount the undisputed facts shown in the summary judgment record, noting also a possible factual dispute that we conclude is not material. The landlord owns and manages a residential apartment unit in Boston. On January 24, 2018, the plaintiffs, Jacob Slater and Nicholas Alessi (collectively, the tenants), acting jointly and severally, executed a lease agreement with the landlord for the apartment for the period from September 1, 2018, to August 31, 2019. The parties later


extended the lease for a year, so as to expire on August 31, 2020. As part of the lease, Slater paid the landlord a $2,425 security deposit. [3]

On August 31, 2020, the lease expired and the tenants vacated the apartment. Immediately after moving out, Slater contacted an officer of the landlord, Wendy Traynor, to ask when the security deposit would be returned. On September 1, 2020, Traynor sent a text message to Slater acknowledging that the landlord was holding the security deposit and further stating, "I have [thirty] days to send it back. I need to talk to [the landlord's facilities manager] and make sure there's no damage. I'm not really worried. Please email forwarding addresses." Slater replied that same day with a text message saying that he would send Traynor his new address by e-mail.

On September 15, 2020, the facilities manager inspected the apartment and found it to be in the condition required under the lease. The landlord asserts that Traynor then called Slater and told him that, if he wanted his check immediately, he could schedule a time to meet her at the management office, which was


closed due to the COVID-19 pandemic. [4] Slater denies ever receiving such a call from Traynor. [5]

On September 23, 2020, the deposit not having been returned, Slater sent a text message to Traynor, stating that he had sent an e-mail message to her with his and Alessi's addresses "for our security deposit but I never heard anything back so I thought I'd shoot you the info again via text." That same day, Traynor replied, "End of [S]ept." Slater then sent another text message to Traynor, which listed his mailing address in Forest Hills, New York, and Alessi's mailing address in Weymouth, Massachusetts. On September 30, 2020, Alessi sent a text message to Traynor asking when he could expect the return of the security deposit. Traynor did not respond to that message.

On October 28, 2020, nearly two months after the end of the tenancy, Slater retained an attorney, who sent the landlord a demand letter seeking return of the security deposit, trebled, plus $363.75 in interest and $1,250 in attorney's fees, for a


total of $8,888.75. On November 4, 2020, the landlord's counsel responded, disputing much of Slater's attorney's legal analysis but indicating that he would return Slater's half of the security deposit and would be willing to return Alessi's half if furnished proper authorization. Counsel also proposed that the parties sign general releases. The following day, the landlord's counsel sent a letter to Slater's attorney enclosing separate checks made out to Slater and Alessi, each for $1,236.87, representing half of the security deposit plus some interest, but not treble damages or attorney's fees. [6] After negotiations over additional payments to the tenants failed, the tenants commenced this action in the Housing Court.

The landlord moved, unsuccessfully, to dismiss the complaint, counterclaimed for abuse of process, and conducted considerable discovery, leading to a motion (discovery motion) to determine whether Slater's objections to certain requests for admissions about his attorney's demand letter were insufficient. [7]


The tenants, after conducting minimal discovery, moved for summary judgment. The landlord filed a response pursuant to Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974), asking that the judge rule on their discovery motion.

At a hearing, the judge denied the discovery motion and then heard argument on the tenants' motion for summary judgment. She later issued a written decision concluding that, on the undisputed facts, the landlord had violated the security deposit law by failing to return the deposit within thirty days after termination of the tenancy. See G. L. c. 186, § 15B (4), (6) (e). She ruled that the landlord was liable for three times the amount of the deposit plus interest, along with costs and attorney's fees. [8] See G. L. c. 186, § 15B (7).

The landlord moved for reconsideration, contending that the judge had overlooked the dispute of fact regarding whether Traynor had called Slater and offered to return his security


deposit to him at the management office. After a hearing, the judge ruled that the dispute was not material, because the law required the "security deposit to be returned" within thirty days after termination of the tenancy and did not allow a landlord to escape liability by merely "trying" to return a deposit. The judge also allowed the full amount of the tenants' attorney's fees request, $17,780, plus costs. This appeal followed. [9]


1. Rule 56 (f).

The landlord first argues that the judge abused her discretion in denying its request under rule 56 (f) to defer action on the tenants' summary judgment motion until the judge ruled on the landlord's discovery motion. This argument is meritless because, at the summary judgment hearing, the judge in fact proceeded as the landlord had requested.

The landlord's rule 56 (f) request, made as part of its summary judgment opposition, was notably vague. The opposition recited that (1) there were genuine issues of material fact (without specifying what those issues were); (2) the landlord's


discovery motion was outstanding; and (3) the judge could, under rule 56 (f), defer ruling on the summary judgment motion, because the landlord had shown a need for additional time to marshal facts essential to its opposition (without specifying what those facts were). The opposition "request[ed] relief under . . . [r]ule 56 (f)," without specifying how much time or what additional discovery the landlord needed. The opposition also asked the judge to deny the summary judgment motion, but it specified no basis for doing so.

At the motion hearing, the judge first heard argument on the landlord's discovery motion. She concluded that Slater's objections were sufficient and that allowing the motion would not produce any relevant or material evidence; she therefore denied it from the bench. The judge then heard argument on the tenants' summary judgment motion and took it under advisement. At no time during the argument did the landlord object that, given the denial of its discovery motion, it needed additional time to prepare a more substantive summary judgment opposition than it had already filed. [10] Indeed, the landlord was able to make the same argument about counsel's demand letter -- that the letter was sent before counsel represented Alessi -- that it could have made had its discovery motion been allowed.


In these circumstances, we see no abuse of discretion in the judge's action on the landlord's rule 56 (f) request. She effectively allowed it, by ruling on the landlord's discovery motion before reaching the merits of the tenants' summary judgment motion. [11] The landlord neither objected at the time to the manner in which the judge proceeded nor has shown any resulting prejudice.

2. Landlord's attempt to "return" deposit.

The landlord next argues that summary judgment was erroneous because, in light of Traynor's claimed telephone call to Slater offering to meet at the management office, there remained a genuine issue of material fact regarding whether the landlord had violated the requirement to return the deposit within thirty days of the end of the tenancy. "We review a grant of summary judgment de novo, construing all facts in favor of the nonmoving party." Miller v. Cotter, 448 Mass. 671, 676 (2007).

Under G. L. c. 186, § 15B (4), "[t]he lessor shall, within thirty days after . . . the end of the tenancy as specified in a valid written lease agreement, return to the tenant the security deposit or any balance thereof," [12] subject to certain permissible


deductions not applicable here. Here, the landlord asserts that its claimed attempt (through...

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