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24-P-1358 Appeals Court
AVALONBAY COMMUNITIES, INC. vs. KRISTEN VARDENSKI & another1
(and a consolidated case2).
No. 24-P-1358.
Essex. January 16, 2026. – July 20, 2026.
Present: Rubin, Grant, & Hodgens, JJ.
Summary Process, Appeal. Bankruptcy. Attorney at Law, Lien.
Lien. Landlord and Tenant, Attorney's fees, Habitability,
Rent. Practice, Civil, Attorney's fees, Summary process.
Damages, Breach of implied warranty of habitability.
Consumer Protection Act, Unfair or deceptive act. Statute,
Construction.
Summary process. Complaints filed in the Northeast Division of the Housing Court Department on November 4, 2013, and July 3, 2015.
After consolidation, the case was heard by Fairlie A. Dalton, J.
Matthew W.H. Wessler for Kristen Vardenski.
David Levinson for the plaintiff.
1 Michael Vardenski. He is not a party to this appeal.
2 AvalonBay Communities, Inc. vs. Kristen Vardenski.
2
GRANT, J. These are cross appeals from judgments of the
Housing Court in consolidated summary process actions. After a
bench trial, the judge found that the defendant, Kristen
Vardenski (tenant), owed rent to the plaintiff, AvalonBay
Communities, Inc. (landlord), and awarded damages to the
landlord for rent and attorney's fees. On the tenant's
counterclaims for breach of the implied warranty of habitability
and unfair or deceptive business practices, G. L. c. 93A, the
judge awarded damages to the tenant, as well as attorney's fees.
On appeal, the tenant argues that the judgments violated G. L.
c. 235, § 27, by setting off the amount of attorney's fees she
owes to the landlord against the amount of attorney's fees the
landlord owes to her, which is subject to her attorney's lien.
In its cross appeal, the landlord argues that the judgments
violated Mass. R. Civ. P. 58 (a), as amended, 371 Mass. 908
(1977) (rule 58 [a]), because they were set forth in two
separate documents; the judge erred in finding that the
landlord's billing practices violated G. L. c. 93A; and the
award of attorney's fees to the tenant was excessive. We
conclude that the judgments impermissibly set off the parties'
attorney's fees awards against each other and, therefore, the
judgments must be amended to include the full amount of
attorney's fees awarded to each party. We otherwise affirm.
3
Background. We summarize the facts based on the judge's
findings after trial. In September 2012, the tenant entered
into a lease for a basement apartment (first apartment) owned by
the landlord. When she moved in, the carpet was wet, and she
complained to the landlord. The landlord tried to remediate the
dampness and replaced the carpet, but the problem persisted. In
September 2013, by agreement of the parties, the tenant moved to
a different apartment (second apartment) owned by the landlord,
this one on the top floor of a building.
In November 2013, the landlord brought a summary process
action alleging that the tenant owed rent. The tenant filed an
answer and brought counterclaims arising from the carpet
dampness in the first apartment, including a claim for breach of
the implied warranty of habitability. In December 2013, the
parties entered into an agreement for judgment that resolved the
issues of possession and rent for the first apartment but
specifically reserved all rights to the landlord's claims for
attorney's fees and late fees.
In February 2015, ice dams on the roof of the apartment
building caused water to leak into the tenant's living room and
two bedrooms. The tenant told the landlord that she wanted
repairs to be done only in her children's bedroom. The repairs,
which were delayed by weather and the unavailability of repair
companies, were completed by April 16, 2015. During this time,
4
when the tenant paid rent, rather than applying the payment to
the current month's rent, the landlord followed a policy of
applying each payment to the oldest amount due, which included
the disputed attorney's fees and late fees.
In July 2015, the landlord brought a second summary process
action alleging that the tenant owed rent. The tenant filed an
answer and brought counterclaims including for breach of the
implied warranty of habitability and violation of G. L. c. 93A.
By the time of trial, the tenant had moved out of the
second apartment, and thus possession was not at issue. After
trial on the consolidated cases, the judge found that the tenant
owed $11,512.50 in unpaid rent, and that conditions in both
apartments amounted to breaches by the landlord of the implied
warranty of habitability warranting reduction in the rent for
the first apartment by $433.50 and for the second apartment by
$976.60. The judge also found that the landlord had violated
G. L. c. 93A by applying payments the tenant made not to the
current month's rent, but to the oldest amounts due, i.e., the
disputed fees. The judge awarded the tenant G. L. c. 93A
damages, doubled, in the total amount of $6,589.06. Offsetting
the damages the parties owed to each other, the judge found that
the tenant owed the landlord a net amount of $3,513.34. On July
27, 2022, judgment for the landlord entered in that amount.
5
The landlord moved for attorney's fees pursuant to
paragraph 21 of the lease, and the tenant moved for attorney's
fees pursuant to G. L. c. 93A. The judge awarded attorney's
fees to both parties and, in March 2023, two separate amended
judgments entered. The judgment for the landlord awarded a
total of $43,108.23 (the original damages award, plus interest,
plus $36,167.40 in attorney's fees). The judgment for the
tenant awarded a total of $49,297.30 ($49,128 in attorney's fees
plus $169.30 in costs).
The landlord filed a motion for relief from judgment,
arguing that the Housing Court had improperly entered two
judgments rather than a single judgment that offset the amounts
the parties owed to each other. The judge allowed the motion
and, in May 2023, ordered that an amended judgment issue that
offset the amounts the parties owed to each other.
The tenant moved to reconsider, arguing that the May 2023
judgment impermissibly set off the attorney's fees awards
against each other in violation of G. L. c. 235, § 27, Fifth.
The judge allowed the motion to reconsider in part, so that the
judgment no longer set off the damages award to the landlord
against the attorney's fees award to the tenant but still set
off against each other the parties' attorney's fees awards. On
February 28, 2024, two amended judgment documents entered. The
judgment for the landlord awarded damages, interest, and other
6
costs, but no attorney's fees, in the total amount of $7,359.26.
The judgment for the tenant awarded $12,960.60 in attorney's
fees and $169.30 in costs, totaling $13,129.90.3 Both the tenant
and the landlord timely appealed.
In July 2024, the tenant filed in the Housing Court a
suggestion of bankruptcy.
Discussion. 1. Tenant's appeal. The tenant argues that
the judge violated G. L. c. 235, § 27, Fifth, by ordering that
the judgments entered on February 28, 2024, set off against each
other the parties' attorney's fees awards. The landlord
counters that § 27 precludes the setoff of attorney's fees only
against a judgment, and not against another award of attorney's
fees.
This case presents questions of statutory construction,
which we review de novo. See Conservation Comm'n of Norton v.
Pesa, 488 Mass. 325, 331 (2021). In interpreting a statute, we
strive to "effectuate the intent of the Legislature" (citation
omitted). Id. We start with the language of G. L. c. 235,
§ 27. It provides as follows:
"Executions between the same parties may, if required by
either party, be set off one against the other . . . ; but
such set-off shall not be allowed --3 The $12,960.60 amount was computed by subtracting the $36,167.40 attorney's fees award to the landlord from the $49,128 attorney's fees award to the tenant.
7
". . .
"Fifth, As to the portion of either execution upon which
the attorney has a lien under [G. L. c. 221, § 50]."
We read the phrase "the portion of either execution" to mean
that, if either execution includes a portion upon which an
attorney has a lien, any competing attorney's fees award cannot
be set off against it.
That reading is supported by cases construing the
attorney's lien statute, G. L. c. 221, § 50. It "was designed
to protect, as a matter of public policy, an attorney's right to
compensation for the rendering of legal services." Ropes & Gray
LLP v. Jalbert, 454 Mass. 407, 413 (2009). The attorney's lien
statute provides that
"[f]rom the authorized commencement of an action,
counterclaim or other proceeding in any court, . . . the
attorney who appears for a client in such proceeding shall
have a lien for his reasonable fees and expenses upon his
client's cause of action, counterclaim or claim, upon the
judgment, decree or other order in his client's favor
entered or made in such proceeding, and upon the proceeds
derived therefrom."
G. L. c. 221, § 50. It allows for "three separate and
independent bases for the assertion of an attorney's lien,"
i.e., "(1) upon [the] client's cause of action, counterclaim or
claim, (2) upon the judgment, decree or other order in [the]
client's favor entered or made in such proceeding, and (3) upon
the proceeds derived therefrom" (quotations omitted). Ropes &
Gray LLP, supra at 414, quoting G. L. c. 221, § 50.
8
The plain meaning of G. L. c. 221, § 50, is that "an
attorney's lien must attach to something" (emphasis added).
Santander Bank, N.A. v. Warrender, 760 F.3d 130, 133 (1st Cir.
2014). See Kourouvacilis v. American Fed'n of State, County &
Mun. Employees, 65 Mass. App. Ct. 521, 521 n.1 (2006) (for
attorney's lien to be enforceable, it would be to extent client
"received any proceeds derived from her cause of action"
[quotations and citation omitted]). In this case, the judge
awarded attorney's fees to the tenant pursuant to G. L. c. 93A,
and the tenant's attorney was entitled to a lien on the
attorney's fees portion of the judgment. See Doe v. Gonpo, 103
Mass. App. Ct. 246, 250 (2023) (cases interpret Massachusetts
fee-shifting statutes to "consistently state that fees are
awarded directly to the prevailing party, not to the party's
attorney").
Conversely, if the tenant has no money to pay the judgment
to the landlord, the landlord would receive no proceeds to which
its attorney's lien would attach. An attorney's "lien exists
only on proceeds obtained by the client in the underlying
proceeding; consequently, if there are no such proceeds, there
is no lien." Curly Customs, Inc. v. Pioneer Fin., 62 Mass. App.
Ct. 92, 97 (2004). In PGR Mgt. Co. v. Credle, 427 Mass. 636,
637 (1998), an indigent tenant owed the landlord more in unpaid
rent than the landlord owed the tenant in damages for
9
interference with quiet enjoyment and attorney's fees. The
court ruled that the attorney's fees award to the tenant, upon
which her attorney had a lien, could not be set off against the
award to the landlord for unpaid rent. Id. at 639-641. "If the
setoff were permitted, because the tenant is unlikely to have
other funds with which to pay her attorney, the tenant's
attorney, rather than the landlord, would bear the expense of
the litigation." Id. at 641. Here, permitting a setoff of the
tenant's $49,128 attorney's fees award against the landlord's
$36,167.40 attorney's fees award would mean that the tenant's
attorney would bear the expense of the litigation. That would
undermine the purpose of the attorney's lien, which, "by
ensuring that lawyers will be compensated for their
services, . . . provides access to legal services to clients
with colorable claims who otherwise could not afford legal
services." Id. at 640.
The landlord further argues in its brief that the tenant
"cannot proceed with an appeal relating to the attorney fee
award as such Judgments were discharged by the Eastern Tennessee
Bankruptcy Court." From documents included in the appendix, the
landlord argues that we should infer that the bankruptcy court
resolved any issue as to attorney's fees, both those owed to the
10
tenant and those owed to the landlord.4 The tenant counters that
because her attorney's lien is a claim in rem, it remains
unaffected by the bankruptcy. See Christakis v. Jeanne D'Arc
Credit Union, 471 Mass. 365, 367-368, cert. denied, 577 U.S. 923
(2015). On the record before us, we cannot determine what
impact, if any, the tenant's bankruptcy had on the attorney's
fees awards. See Home Depot v. Kardas, 81 Mass. App. Ct. 27, 28
(2011) ("Although we may take judicial notice of the docket
entries and papers filed in separate cases, we may not take
judicial notice of facts or evidence brought out in those
separate actions"). At oral argument, the landlord conceded
that it is the province of the bankruptcy court to determine the
effect, if any, of the tenant's bankruptcy on the judgments.
The landlord also admitted that it had not filed in the
bankruptcy court any proof of claim for its attorney's fees. In
those circumstances, we will not conclude, as to either party,
that the judgments for attorney's fees have been discharged.
2. Landlord's appeal. a. Separate judgments. The
landlord argues that the Housing Court violated rule 58 (a) by
4 The Housing Court docket contains the tenant's suggestion of bankruptcy, but no other documents from the bankruptcy court. Included in the record appendix are documents that appear to be the tenant's bankruptcy petition and the bankruptcy court's order of discharge.
11
entering two judgments, one for the landlord and one for the
tenant.
Rule 58 (a) provides that, with certain exceptions not
relevant here, "[e]very judgment shall be set forth on a
separate document." The purpose of that language is not to
require that a judgment be set forth on a single piece of paper,
but rather "to clarify the time from which post-judgment action
shall be commenced." Lewis v. Emerson, 391 Mass. 517, 519
(1984). See Zielinski v. Connecticut Valley Sanitary Waste
Disposal, Inc., 70 Mass. App. Ct. 326, 330 (2007). Because the
point of the separate judgment rule is to enable the parties to
ascertain when to file their notices of appeal and, here, both
parties filed timely notices of appeal from the final judgments
issued on February 28, 2024, there was no prejudice.
Indeed, Mass. R. A. P. 3 (c) (1) (D), as appearing in 491
Mass. 1601 (2023), provides that "the notice of appeal
encompasses the final judgment, regardless of whether that
judgment is set out in a separate document under [rule 58 (a)],
if the notice designates" an order that adjudicates all claims
between the parties. This is not a case where a judgment issued
as to "fewer than all the claims or the rights and liabilities
of fewer than all the parties." Mass. R. Civ. P. 54 (b), 365
Mass. 820 (1974). See Business Interiors Floor Covering
Business Trust v. Graycor Constr. Co., 494 Mass. 216, 228
12
(2024). The landlord misplaces its reliance on a footnote in
one such case, Bragdon v. Bradford O. Emerson, Inc., 19 Mass.
App. Ct. 420, 423 n.3 (1985), in which we criticized the use of
the word "judgment" to refer to such a "piecemeal" ruling, and
suggested that "[i]n the future, . . . the term 'judgment'
should be reserved by the trial court for a single document
finally disposing of all claims." We do not read that reference
to a "single document" to preclude a trial court from disposing
of all claims in two judgment documents, one for each party,
issued simultaneously.
b. Violation of consumer protection statute. The landlord
argues that the judge erred as a matter of law in concluding
that the landlord's billing practices violated G. L. c. 93A, and
in awarding to the tenant attorney's fees pursuant to G. L.
c. 93A, § 9 (4), that were excessive.
The judge concluded that paragraph 21 of the lease, which
permitted outstanding attorney's fees to be listed on the
landlord's ledger, and paragraph 10, which deemed all
outstanding payments to be treated as rent, were not necessarily
unfair or deceptive. However, the judge concluded, the way that
the landlord applied those two paragraphs to the tenant's
circumstances did result in an unfair or deceptive business
practice. The judge found that "[a]n egregious example"
occurred when, prior to the second summary process proceeding,
13
the landlord served a notice to quit alleging that the tenant
had not paid $2,794.53 rent for March and April 2015, when in
fact the ledger showed that the tenant had paid rent, but the
landlord had applied the payment to the disputed charges. The
judge also found it "particularly disturbing" that, after the
landlord informed the tenant that a $514 credit for the water
damage from ice dams could be applied to the April 2015 rent,
the landlord applied the remainder of the tenant's April 2015
rent payment to the disputed charges instead. We discern no
abuse of discretion in the judge's conclusion that the landlord
violated G. L. c. 93A, nor in her award of double damages. See
Exhibit Source, Inc. v. Wells Ave. Business Ctr., LLC, 94 Mass.
App. Ct. 497, 504 (2018).
Nor do we discern any abuse of discretion in the judge's
conclusion that the tenant's rejection of the landlord's
settlement offer did not preclude recovery of attorney's fees.
The judge found that the tenant's rejection of the settlement
offer was not unreasonable or in bad faith "to the degree that
would prohibit the collection of attorney fees for the [tenant]
to litigate the c. 93A claim." We defer to the judge's
assessment. See Klairmont v. Gainsboro Restaurant, Inc., 465
Mass. 165, 184-185 (2013).5
5 We see no merit to the landlord's argument that the judge erred in awarding damages after trial because the amount the
14
We similarly discern no abuse of discretion in the judge's
computation of attorney's fees for the tenant. In a detailed
memorandum, the judge applied the "lodestar" method, assessing
the reasonableness of the tenant's counsel's hourly rate,
counsel's expertise, the number of hours spent, and the
complexity of the issues. See Blake v. Hometown Am.
Communities, Inc., 486 Mass. 268, 284-285 (2020). See also
Hyannis Anglers Club, Inc. v. Harris Warren Commercial Kitchens,
LLC, 91 Mass. App. Ct. 555, 564 (2017) ("The 'lodestar' method
is preferred . . ."). The judge found that "the issue raised in
the [tenant's] c. 93A counterclaim was beyond the usual claims
presented in . . . a summary process case." The judge did find
that some of "the hours claimed by the [tenant] [were]
excessive," and reduced the $81,880 amount the tenant requested
to $49,128. The judge did not abuse her discretion.
3. Appellate attorney's fees for tenant. In her brief,
the tenant requested appellate attorney's fees. "A party [who]
prevails on a claim under G. L. c. 93A is statutorily entitled
tenant sought in her G. L. c. 93A demand letter was "exorbitant." The judge based her findings of a G. L. c. 93A violation on the evidence at trial, not on the demand letter. Cf. Fredericks v. Rosenblatt, 40 Mass. App. Ct. 713, 716 (1996) (judge erred in dismissing G. L. c. 93A claim on ground that amount in demand letter "totally [bore] no relationship whatsoever with regard to the damages established at the time of trial").
15
to recover reasonable appellate attorney's fees and costs with
respect to the claims on which [she] prevailed." Fontaine v.
Philip Morris USA Inc., 497 Mass. 436, 463 n.23 (2026). Because
the tenant made such a request in her brief, she may file an
application for appellate attorney's fees and costs with this
court within fourteen days of the issuance of this opinion in
accordance with the procedure described in Fabre v. Walton, 441
Mass. 9, 10-11 (2004). The landlord shall then have fourteen
days within which to respond.
Conclusion. The judgments dated February 28, 2024, shall
be amended to reinstate the original attorney's fees awards of
$36,167.40 to the landlord and $49,128 to the tenant. As so
amended, the judgments are affirmed.
So ordered.