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24-P-961 Appeals Court 25-P-341
AIF DARTMOUTH, LLC vs. LISA HANSON (and a companion case1).
No. 24-P-961.
Bristol. May 5, 2026. - September 14, 2026.
Present: Henry, Brennan, & Allen, JJ.
Summary Process, Appeal. Practice, Civil, Summary process,
Attorney's fees, Special verdict, Instructions to jury,
Waiver. Landlord and Tenant, Repairs, Habitability, Quiet
enjoyment, Tenancy at will, Security deposit, Attorney's
fees. Damages, Attorney's fees, Emotional distress.
Consumer Protection Act, Attorney's fees, Unfair or
deceptive act. Regulation. Evidence, Expert opinion.
Summary process. Complaint filed in the Southeast Division of the Housing Court Department on September 18, 2023.
Motions for attorney's fees and sanctions were heard by Donna Salvidio, J.
Summary process. Complaint filed in the Southeast Division of the Housing Court Department on February 12, 2024.
The case was tried before Joseph L. Michaud, J., and a motion to alter or amend the judgment was considered by him.
1 The companion case is between the same parties.
2
Ami Clifford for the defendant.
Richard J. Manning, Jr., for the plaintiff.
BRENNAN, J. These appeals stem from two residential
summary process actions involving the same parties. The
plaintiff, AIF Dartmouth, LLC (landlord), filed a complaint in
the Housing Court (initial action) seeking possession of an
apartment (premises) from the defendant, Lisa Hanson (tenant).
The landlord voluntarily dismissed its complaint after the
tenant asserted that her daughter was also a tenant of the
apartment. The landlord then refiled the action (subsequent
action) and included the tenant's daughter as a codefendant.2
The tenant appeals from orders in the initial action denying her
request for attorney's fees and awarding sanctions against her.
She also appeals from the final judgment in the subsequent
action, which incorporated the jury's verdict and the judge's
order for damages under G. L. c. 93A. The landlord crossappeals from the denial of its motion to alter or amend the
final judgment pursuant to Mass. R. Civ. P. 59 (e), 365 Mass.
827 (1974). We vacate so much of the final judgment that
awarded "no damages" on the tenant's c. 93A claim related to
2 Ultimately, the parties and the tenant's daughter entered into a stipulation to dismiss her from the subsequent action, with prejudice.
3
certain violations of the sanitary code, and we remand that
portion of the case for further consideration. In all other
respects, the final judgment and orders are affirmed.
Background. In August 2019, the tenant entered into a
lease agreement with the landlord for rental of the premises
through August 2020. She provided the landlord with a security
deposit prior to her tenancy. Within fifteen days after her
tenancy began, the tenant reported a list of issues with the
conditions of the premises, including damaged or missing window
screens and a defective lock on her patio door. In September
2020, she sent the landlord a letter of complaint following up
on these unrepaired issues.
The parties executed lease renewals in 2020 and 2021, with
the last lease covering September 2021 through August 2022. The
landlord gave the tenant a form to sign for a renewal covering
September 2022 through August 2023, which the tenant signed and
returned to the landlord. However, the landlord did not return
to the tenant a mutually signed copy of the lease.3 The tenant
nevertheless began paying rent for the 2022-2023 rental period,
and the landlord accepted payment.
3 In January 2024, during litigation, the landlord produced a countersigned lease renewal rider dated July 7, 2022. At trial, the landlord's property manager testified that the rider was not returned to the tenant because it had been misfiled.
4
In June 2023, the landlord provided written notice to the
tenant that it did not intend to renew her lease. In September
2023, the landlord served the tenant with a notice to quit. The
tenant did not vacate the premises, and the landlord filed the
initial action. After a series of contentious pretrial
hearings, during which a judge struck the tenant's counterclaims
and jury demand as not timely filed and the tenant claimed that
the landlord had failed to name all necessary parties, the same
judge allowed the landlord's motion for a voluntary dismissal
without prejudice in January 2024.
On February 12, 2024, the landlord refiled the summary
process action, adding the tenant's daughter and alleging that
all occupants were tenants at sufferance. The tenant asserted
counterclaims for retaliation, discrimination, breach of the
implied warranty of habitability, violations of the security
deposit law, interference with quiet enjoyment, and violations
of the consumer protection law, G. L. c. 93A. A different judge
(trial judge) presided over this subsequent action. After
trial, a jury found in favor of the tenant, with a specific
finding that her tenancy was at will and not governed by a
lease. The jury awarded $7,068 to the tenant for breach of the
warranty of habitability and $4,950 for interference with quiet
enjoyment. The jury found no liability for the landlord on the
remaining claims for retaliation and violation of the security
5
deposit statute.4 Judgment for possession and damages entered in
favor of the tenant. After an evidentiary hearing on the c. 93A
claims, the trial judge found that the landlord failed to give
the tenant an executed copy of the rental agreement, in
violation of 940 Code Mass. Regs. § 3.17(3)(c) (1993), but found
no other c. 93A violations. The trial judge awarded the tenant
attorney's fees of $8,800 and costs of $550.94 for interference
with quiet enjoyment, and $75 in damages and $4,000 in
attorney's fees for the violation of c. 93A.
Discussion. 1. Attorney's fees for initial action. The
tenant argues she was entitled to payment by the landlord of her
attorney's fees incurred in defending the initial summary
process action because the order of dismissal was tantamount to
a successful defense. We disagree.
The tenant first moved for attorney's fees on February 2,
2024. She argued that the judge had improperly granted the
landlord a voluntary dismissal under subsection (a) (1) of Mass.
R. Civ. P. 41, 365 Mass. 803 (1974) (rule 41), instead of
subsection (a) (2), and that the tenant had a right to seek
attorney's fees for a successful defense. See G. L. c. 186,
§ 20 (lease with attorney's fees provision for landlord who
successfully brings summary process action has implied
4 The trial judge granted the landlord's motion for a directed verdict on the discrimination claim.
6
reciprocal provision granting fees to tenant after successful
defense). Although neither the landlord's motion nor the
judge's order referred to rule 41 (a) (1), a docket entry
incorrectly reflected dismissal under this subsection of the
rule.5 On February 22, 2024, after a lengthy hearing, the judge
corrected the docket to reflect dismissal under subsection
(a) (2) and denied the motion for fees. The tenant did not file
a notice of appeal from this postjudgment order until May 6,
2024, well past the statutory period. See Mass. R. A. P. 4 (a),
as appearing in 496 Mass. 1601 (2025). Accordingly, we lack
jurisdiction over her appeal from this order. See Wells Fargo
Bank, N.A. v. Sutton, 103 Mass. App. Ct. 148, 152-153 (2023).
On March 5, 2024, the tenant filed a second motion for
attorney's fees (March motion). The March motion presented the
same legal argument and requested the same amount of fees as the
motion denied in February. The judge denied the March motion on
the basis that it was substantively duplicative of the motion
fully argued in February. We conclude that the judge acted
within her discretion by declining to consider the fee argument
5 The tenant filed an answer to the complaint but did not stipulate to the dismissal, and therefore the dismissal could not have been pursuant to rule 41 (a) (1). Because the tenant's counterclaims had been deemed waived, she had no right to object to the court's discretionary dismissal, without prejudice, under rule 41 (a) (2).
7
made in the March motion. See Audubon Hill S. Condominium Ass'n
v. Community Ass'n Underwriters of Am., Inc., 82 Mass. App. Ct.
461, 470 (2012) (after denial of motion, judge need not
entertain second motion on same grounds). Because the judge did
not reach the merits of the March motion, the tenant's appeal
from it did not revive the arguments the judge had rejected in
February. See Littles v. Commissioner of Correction, 444 Mass.
871, 875 (2005) ("renewing" motion on which right to appeal has
expired does not revive appellate rights).
After trial in the subsequent action, the tenant submitted
a motion for attorney's fees that included billing for actions
taken on her behalf during the initial action and requested
reimbursement to her daughter for legal expenses incurred
relative to the daughter's motion to be dismissed from the
subsequent action. The trial judge denied the request seeing no
"reasonable nexus or basis to assess any fees and costs against
the [landlord] for the actions related to the first matter . . .
that was voluntarily dismissed." The trial judge also declined
to order reimbursement to the daughter for her attorney's fees
in the subsequent action reasoning that dismissal of the first
action was because of the tenant's misrepresentations. Other
than a passing reference in her brief, the tenant offers no
factual or legal basis to support her claim that the judge's
8
conclusions were in error. Therefore, the argument is waived.6
See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass.
1628 (2019).
2. Attorney sanctions for duplicative motion in initial
action. We also disagree with the tenant's claim that the judge
who presided over the initial action abused her discretion by
imposing sanctions on the tenant's attorney. A judge may impose
sanctions on an attorney who fails to show "a subjective good
faith belief that a pleading or motion has factual and legal
support." Worcester v. AME Realty Corp., 77 Mass. App. Ct. 64,
69 (2010). See Mass. R. Civ. P. 11 (a), as appearing in 488
Mass. 1403 (2021) (rule 11). We review the imposition of
sanctions under rule 11 (a) for an abuse of discretion. See
Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 651
(2010). As discussed above, the judge found the substance of
the tenant's March motion to be entirely duplicative of the
portion of her February motion that requested fees, and which
the same judge previously denied. We disagree with the tenant's
6 Although the tenant makes no such argument on appeal, our dissenting colleague concludes that the judge erroneously found that the tenant misrepresented her daughter's status in the initial action. Even if the issue were properly before us, we discern no error nor do we see any indication that the judge's finding regarding the tenant's lack of forthrightness improperly impacted any other issue in the case, including his calculation of reasonable attorney's fees for the subsequent action.
9
assertions that the judge did not make specific findings to
support sanctions. The judge determined that the March motion
"was not asserted in good faith and counsel's violation of
[r]ule 11 was willful." We thus discern no abuse of discretion
in the imposition of sanctions against the tenant's attorney.
3. Landlord's breach of warranty of habitability required
judge to find a violation of G. L. c. 93A. The tenant contends
that because the trial judge found the landlord violated 940
Code Mass. Regs. § 3.17(1)(e) (1993) by failing to repair window
screens and a patio door promptly, he was required to find that
the landlord had violated c. 93A. We agree.
The Attorney General may promulgate regulations designating
certain acts as unfair or deceptive conduct under c. 93A. These
regulations have the force of law. Purity Supreme, Inc. v.
Attorney Gen., 380 Mass. 762, 775 (1980). Title 940 Code Mass.
Regs. § 3.17(1) provides that "[i]t shall be an unfair or
deceptive act or practice for an owner to" violate any of the
enumerated subsections. Subsection 3.17(1)(e) deems the failure
to make repairs within a reasonable time after a tenant gives
notice of a defect to be an unfair or deceptive practice.
In September 2019, the tenant reported several defects,
including damaged screens in all five of her unit's windows and
a defective lock on her patio door, on the mandatory statement
of conditions form she returned to the landlord within fifteen
10
days of her initial tenancy. See G. L. c. 186, § 15B (2) (c).
One year later, in September 2020, she followed up on these
issues in a letter of complaint to the landlord. Two of the
screens had been replaced in May 2020; however, three windows
were still without screens. At trial, the landlord's property
manager testified that, as he understood board of health
regulations, screens were not required in windows from late fall
through early spring. He described difficulties locating a
replacement frame for one of the windows because of its unusual
shape and explained that a new "supply house" had to be located
because the window manufacturer was no longer in business. The
landlord offered in evidence e-mail message exchanges with the
tenant in which the landlord apologized for not timely
addressing her complaints and attributed delays, in part, to
global supply chain issues caused by the COVID-19 pandemic. The
landlord repaired the patio door in October 2022 and finished
replacing the screens in May of 2022 or 2023.
In his ruling and order on the tenant's motion for damages
under c. 93A, the trial judge found that "the [landlord] did
violate 940 [Code Mass. Regs. §] 3.17(1)(e) by failing to
promptly repair the [window screens and patio door]," but also
that "material extenuating circumstances existed to excuse the
prompt repair of same." He credited the landlord's explanation
that "they made every attempt to get the materials necessary to
11
make [the] repairs," and also credited statements that the
impact on supply chains of the COVID-19 pandemic delayed the
landlord's response to the tenant's concerns. On the record in
this case, we discern no clear error in the judge's findings.
See Corrado v. Hedrick, 65 Mass. App. Ct. 477, 484 (2006)
(findings of judge who saw and heard witnesses and was free to
make credibility determinations not disturbed absent clear
error). However, 940 Code Mass. Regs. § 3.17(1)(e) contains
unambiguous language that "[i]t shall be an unfair or deceptive
act or practice" for a landlord to violate that regulation.
Therefore, based on his finding that the landlord violated 940
Code Mass. Regs. § 3.17(1)(e), the judge did not have discretion
to conclude that the acts "[did] not constitute an unfair and
deceptive practice in violation of G. L. c. 93A." See Anketell
v. Office of Consumer Affairs & Business Regulation, 101 Mass.
App. Ct. 628, 636-637 (2022) (construing similar language in
G. L. c. 142A to mean that violation of statute is per se
violation of c. 93A); Layes v. RHP Props., Inc., 95 Mass. App.
Ct. 804, 811 (2019) (similar language in G. L. c. 140,
§ 32L [7], makes violation of act's provisions per se violation
of c. 93A).
The landlord's argument that c. 93A damages would be
duplicative of the damages awarded by the jury is unavailing.
While the claim before the jury for breach of the warranty of
12
habitability shared a factual basis with the claim for violation
of c. 93A -- missing screens and a damaged lock -- c. 93A
provides for damages beyond those awarded by the jury here. See
McGrath v. Mishara, 386 Mass. 74, 86 (1982) (where landlord
violates both c. 93A and other statute, tenant entitled to
damages under statute awarding greater amount). At a minimum,
even if there are no additional actual damages, c. 93A requires
the trial judge to determine and award attorney's fees and
costs. See G. L. c. 93A, § 9 (4).
4. Jury instructions. a. Retaliation. The tenant next
argues that the trial judge erroneously failed to include on the
special verdict form, as a protected activity giving rise to a
presumption of retaliation, the reporting of a violation of
G. L. c. 186, § 14 (utilities, services, and quiet enjoyment).
We disagree.
At the charge conference, the trial judge separated the
review of the jury instructions from that of the special verdict
slip by hearing all objections to the former and then moving on
to the latter. When reviewing the jury instructions for
retaliation, the tenant objected to the lack of inclusion of
language on reporting violations of G. L. c. 186, § 14. The
trial judge inserted the tenant's requested language and
properly instructed the jury that the landlord would be liable
for taking action "against any tenant of residential premises
13
for the tenant's acts of . . . [r]eporting or proceeding against
violations of Chapter 186 Section 14." Later, when reviewing
the retaliation claim on the special verdict slip, the tenant
stated, "I think we already addressed the reprisal and
retaliation," and raised no objection to that section of the
verdict slip. By failing to object to the verdict slip, the
tenant waived this issue. See Fecteau Benefits Group, Inc. v.
Knox, 72 Mass. App. Ct. 204, 208 n.12 (2008) (objection to
verdict form waived if not raised below).
Even if the issue were preserved, the tenant separately
sought (and received) damages for her underlying interference
with quiet enjoyment claim. The maximum potential damages for
retaliation and interference with quiet enjoyment are identical:
the greater of three months' rent or actual damages, plus costs
and attorney's fees. See G. L. c. 186, §§ 14, 18. Thus, by
removing quiet enjoyment from the portion of the verdict slip on
damages for retaliation, the trial judge avoided duplicate
damages for the same underlying harm, and we discern no
prejudice. See Simon v. Solomon, 385 Mass. 91, 109 (1982).
b. Security deposit. The tenant also contends that the
trial judge erred by failing to instruct the jury on all
elements of the security deposit statute, G. L. c. 186, § 15B,
and that the landlord's failure to pay annual interest on the
14
deposit was a per se violation of c. 93A. On this record, we
disagree.
At trial, it was undisputed that the landlord did not pay
interest for three years, contrary to law, see G. L. c. 186,
§ 15B, but then in February 2023 (seven months before the
tenancy ended), paid out all interest due ($0.43) without any
request by the tenant. We conclude that the judge adequately
instructed the jury on the security deposit statute, and the
verdict slip mirrored his instructions. A violation of the
provision requiring a landlord to pay interest annually only
entitles a tenant to deduct any interest due from the next rent
payment, not to damages equivalent to the entire deposit.7 See
G. L. c. 186, § 15B (3) (b). Because the landlord returned all
overdue interest during the tenancy, it was not error for the
judge to leave this instruction off the verdict slip.
Although failure to pay annual interest on a security
deposit is defined as "an unfair or deceptive practice" by 940
Code Mass. Regs. § 3.17(4)(c) (1993) and the evidence at trial
established that the landlord violated this regulation, the
7 A landlord may be liable for three times the amount of interest together with costs and attorney's fees where the landlord does not return the interest within thirty days of the termination of the tenancy. See G. L. c. 186, § 15B (2) (a), (7). This increased-damages provision did not apply here, because the landlord returned the interest during the tenancy.
15
trial judge denied the c. 93A claim on the failure to pay
interest annually because he chose "not to disturb the findings
of the jury concerning the security deposit." We agree with the
tenant that this was error because the jury did not make
findings on the landlord's failure to pay annual interest.
Nevertheless, we discern no prejudice where the tenant failed to
prove any injury based on the landlord's return of all overdue
interest during the tenancy. See Tyler v. Michaels Stores,
Inc., 464 Mass. 492, 501-503 & n.17 (2013) (even per se
violation of c. 93A must cause separate, identifiable harm to
give rise to claim for damages).8
5. Emotional distress damages. The tenant further
contends that the trial judge erroneously required expert
testimony to substantiate her claim for damages caused by
emotional distress, at both the jury trial and at the hearing to
determine c. 93A damages. The tenant requested emotional
distress damages primarily in connection with the landlord's
8 The tenant's argument that the judge erred in asking the jury on the special verdict form whether the landlord gave the jury the correct account number in which the landlord placed the security deposit fails for the same reason: the tenant did not show an actual loss from this possible breach of the statute. Tyler, 464 Mass. at 503. The jury did find that the landlord placed the security deposit in a separate, interest-bearing account, in a bank located in Massachusetts, and provided the tenant with the bank's name and location along with the amount and "correct account number of the deposit."
16
failure to return the signed lease and then pursuing
"groundless" summary process actions against her. We are not
persuaded that the trial judge erred at either stage of the
proceedings.
a. Jury trial. The tenant claims the trial judge
improperly prevented her from testifying to her emotional
distress without a medical expert. At trial, the tenant
testified multiple times about her subjective feelings in
reaction to the eviction process. She testified that she was
"nauseated, upset, [and] very stressed" when she was notified
her lease would not be renewed, and again was "very stressed and
overwhelmed" when she got a notice to move out of the apartment.
The trial judge sustained the landlord's objection only when the
direct question called for "health impacts" allegedly caused by
the landlord's actions. The judge acknowledged that there is
"going to be some stress" associated with an illegal eviction
action, but sustained the objection where the tenant had no
medical documentation or expert testimony to prove that the
tenant experienced something more. See Rodriguez v. Cambridge
Hous. Auth., 443 Mass. 697, 701 (2005) (expert medical testimony
required to substantiate physical harm caused by emotional
distress). The judge also articulated concerns about the
relevance and repetitiveness of the direct examination, which
had consumed several hours at that point and already covered
17
emotional distress. We discern no abuse of discretion in the
trial judge's sustaining the landlord's objection to additional
testimony on the subject, or in sustaining objections to the
tenant testifying to health impacts of such distress. See Evans
v. Lorillard Tobacco Co., 465 Mass. 411, 458 (2013).
b. General Laws c. 93A hearing. The trial judge also
permitted the tenant to testify to her emotional distress at the
c. 93A hearing, despite his concerns that the testimony would be
duplicative of her testimony at trial. The tenant testified at
length that she experienced anxiety, chest pains, loss of
appetite, panic attacks, and insomnia; that she went to the
emergency room multiple times; and that she believed the anxiety
prolonged her recovery from surgery. The trial judge
acknowledged this testimony but found it to be insufficient to
establish that the landlord's actions caused the tenant's
medical issues.9 The trial judge also noted that the tenant had
not presented any medical documentation to support a direct
relation between the actions of the landlord and her claimed
emotional distress. Based on the judge's factual findings, we
9 We note that a judge may award a tenant emotional distress damages for breach of quiet enjoyment in the absence of bodily harm. Homesavers Council of Greenfield Gardens, Inc. v. Sanchez, 70 Mass. App. Ct. 453, 458-459 (2007) (affirming award of emotional distress damages to tenant, in absence of bodily injury, for anxiety caused by breach of quiet enjoyment).
18
discern no clear error in his conclusions that the tenant was
entitled to nominal damages and reasonable attorney's fees for
the landlord's failure to return the signed lease, and no
damages for the landlord pursuing summary process actions
against the tenant. See Youghal, LLC v. Entwistle, 484 Mass.
1019, 1023 (2020) (court may reject claim of error that "depends
on a view of the facts different from those found by the judge,
after trial").
6. Trial attorney's fees. a. Fees pursuant to the lease.
The tenant asserts that she was entitled to attorney's fees for
the jury trial under G. L. c. 186, § 20, because she
successfully defended against a summary process action. We
disagree.
The tenant's original lease and all subsequent renewals
contained a provision for attorney's fees. Ordinarily, terms of
a lease carry over to a tenancy at will so long as the parties
do not agree to modify them. See Wit v. Commercial Hotel Co.,
253 Mass. 564, 570 (1925) (commercial tenant that fails to
extend lease becomes tenant at will but is still bound by other
terms of lease). See also Walker Ice Co. v. American Steel &
Wire Co., 185 Mass. 463, 467 (1904) (upon termination of written
lease, relationship of landlord and tenant continued as tenancy
at will, with same rights and privileges specified by lease
except as mutually modified by parties). Here, however, the
19
tenant took the position at trial that her tenancy from
September 2022 through August 2023 was not governed by a lease
and that she was a tenant at will. The jury agreed and found on
a special verdict slip that the tenant's occupancy of the
premises during this period was not governed by the terms of a
lease. Based on the tenant's position at trial and the jury's
determination that no lease applied to the relevant time period,
the judge found that the tenant "cannot have it both ways in
first claiming that the tenancy was not subject to the terms of
a lease and after prevailing on that claim then asserting that
the terms of that very same lease now apply to the attorney's
fee provision." We discern no error in the judge's application
of judicial estoppel to deny the tenant's posttrial motion for
fees pursuant to G. L. c. 186, § 20. See Otis v. Arbella Mut.
Ins. Co., 443 Mass. 634, 639-641 (2005) (principles of judicial
estoppel preclude party from asserting position in one legal
proceeding that is contrary to position it previously asserted
and prevailed on in another proceeding).10
b. Calculation of fees. The tenant was awarded a portion
of attorney's fees for the interference with quiet enjoyment and
10Because the tenant did not argue at trial that the terms of the earlier written leases continued into her tenancy at will, the argument is waived on appeal. See Luppold v. Hanlon, 495 Mass. 148, 166 (2025).
20
violation of c. 93A related to the failure to return the lease.
She disputes the method the trial judge used to calculate the
fee award.
We review a judge's award of attorney's fees for abuse of
discretion, with deference to the trial judge's "superior
ability to calibrate such awards to the nuances of the case"
(citation omitted). LaChance v. Commissioner of Correction, 475
Mass. 757, 772 (2016). "This determination should ordinarily
begin with the lodestar calculation, based on the number of
hours that are reasonably expended and adequately documented,
multiplied by a reasonable hourly rate." Id.
Here, the trial judge applied the lodestar method and made
detailed findings to calculate attorney's fees. First, he made
findings about a reasonable rate for the location of the
premises and type of case, based on comparisons to other
attorneys and his own experiences as a judge. Next, the trial
judge assessed a reasonable number of hours to spend on the
quiet enjoyment and c. 93A claims. Because the tenant's counsel
provided a total number of hours but did not delineate the time
spent on each claim, the trial judge was required to estimate
the time spent on the tenant's successful claims. Based on
these estimates, the judge calculated an award of $12,800, which
was substantially lower than the $84,209.44 in fees sought by
the tenant. On this record, we discern no abuse discretion in
21
the judge's calculation of attorney's fees that were tailored to
his detailed findings.
7. Landlord's cross appeal from order denying motion to
alter or amend. The landlord argues that the trial judge abused
his discretion by denying the landlord's motion to overturn the
jury's findings of violation of the warranty of habitability and
interference with quiet enjoyment, or to reduce the damages
(remittitur). We disagree.
We apply a "highly deferential" standard in assessing the
evidence supporting a jury's award of damages and will overturn
such an award only if it is "clearly excessive in relation to
what the plaintiff's evidence ha[d] demonstrated damages to be."
Spinosa v. Tufts, 98 Mass. App. Ct. 1, 10 (2020), quoting Ayash
v. Dana-Farber Cancer Inst., 443 Mass. 367, 404, cert. denied
sub nom. Globe Newspaper Co. v. Ayash, 546 U.S. 927 (2005). We
review the denial of a motion for remittitur for abuse of
discretion. See Reckis v. Johnson & Johnson, 471 Mass. 272, 299
(2015), cert. denied, 577 U.S. 1113 (2016).
The landlord does not dispute that the tenant presented
evidence of defective conditions. However, the landlord
contends that the jury must have ignored the landlord's evidence
that failure to promptly replace or repair window screens
resulted in part from supply chain issues caused by the COVID-19
pandemic, which subsequently was credited by the trial judge at
22
the c. 93A hearing. The landlord further argues that the jury's
finding of a breach of warranty of habitability was against the
weight of the evidence and must have been "based on some other
improper consideration." This argument misapprehends the
applicable law for the judge and our standard of review. Put
simply, the fact that the jury could have credited the tenant's
evidence or weighed the evidence related to the COVID-19
pandemic differently from the judge is insufficient to overturn
a verdict or require remittitur. See Spinosa, 98 Mass. App. Ct.
at 10.
8. Appellate attorney's fees. Under G. L. c. 93A and
G. L. c. 186, § 14, the tenant is entitled to receive appellate
attorney's fees for her successful appeal from the judgment on
her c. 93A and quiet enjoyment claims. See Fontaine v. Philip
Morris USA Inc., 497 Mass. 436, 463 n.23 (2026); Yorke Mgt. v.
Castro, 406 Mass. 17, 19 (1989). The parties may file
applications and oppositions in accordance with Mass. R. A. P.
25 (b), as appearing in 498 Mass. 1601 (2026).
The landlord requests appellate attorney's fees, pursuant
to G. L. c. 186, § 20, for the appeals in both the initial and
subsequent actions. However, the landlord was not the
prevailing party in either action. Moreover, as previously
discussed, the jury found there was no lease, and the landlord
relied on this finding to argue the tenant is not entitled to
23
attorney's fees. Accordingly, the landlord's request for
attorney's fees is denied.
Conclusion. We vacate so much of the final judgment that
denied the tenant's claim for damages under c. 93A based on
certain sanitary code violations, and we remand that portion of
the case for further proceedings consistent with this opinion.
The final judgment is otherwise affirmed. The orders denying
the landlord's motion to alter or amend the final judgment,
denying the tenant's motion for attorney's fees, and allowing
the landlord's motion for sanctions are also affirmed.
So ordered.
HENRY, J. (concurring in part and dissenting in part). I
respectfully dissent from the majority on four issues.
First, I think it is not clear whether the trial judge
denied the tenant emotional distress damages solely because she
did not offer medical records or expert testimony. Although
such evidence can be offered, it is not required and its absence
is not a reason to deny emotional distress damages entirely. I
would include the issue of emotional distress damages in the
remand on the G. L. c. 93A claim so that the judge may clarify
the basis for awarding $0 for emotional distress.
Second, the judge's finding crediting the landlord's claim
that its repair of screens and the patio slider door was delayed
because of the impact of the COVID-19 pandemic on the supply
chains was clearly erroneous to the extent the judge was
addressing the months of delay before COVID-19 swept the planet.
Any delay in August, September, October, November, and December
2019, and possibly up to March 2020 was not caused by COVID-19,
which the judge should consider on remand in determining whether
the landlord's failure to remedy the lack of screens was willful
or intentional.
Third, because we are remanding, presumably to the trial
judge, I would address the judge's erroneous finding that the
tenant misrepresented that her daughter was a tenant of the
apartment. I also would note that the judge did not address
2
conduct by the landlord that overcomplicated this case such that
the trial had to be held in the alternative, i.e., depending on
whether the fact finder found the tenant was a tenant at
sufferance or a tenant at will.
Fourth, I would hold that the attorney's fees provision of
the lease applies regardless of the jury determination that the
tenant's occupancy of the premises between September 1, 2022,
and August 31, 2023, was not governed by the terms of a lease.
1. Emotional distress damages. In ruling on the tenant's
request for emotional distress damages in her claims pursuant to
G. L. c. 93A, the judge wrote:
"I find that the [tenant] failed to present sufficient
evidence on any actual damages that she suffered as a
direct result of the [landlord's] failure to promptly
repair the deficiencies. While she claims that she
suffered from emotional distress, anxiety and other
assorted woes she did not present any medical documentation
that directly tired these claimed maladies [sic]."
He repeats this same belief later, writing:
"[The tenant] claims that the [landlord's] pursuit of two
groundless summary process actions resulted in her visiting
the hospital, therapy, medication, a reduction in leisure
activities, and fearing to have her family come to visit.
"As stated earlier the [tenant] provided little more than
her testimony concerning the direct relation between the
actions of the [landlord] and her alleged damages. There
was no medical documentation or testimony from any medical
expert that attributed her emotional distress et al to the
actions (or lack thereof) of the [landlord].
"As such I find no basis to award damages under this
claim."
3
As the majority acknowledges, ante at note 9, a judge may award
a tenant emotional distress damages for breach of quiet
enjoyment in the absence of evidence of bodily harm. See
Homesavers Council of Greenfield Gardens, Inc. v. Sanchez, 70
Mass. App. Ct. 453, 458-459 (2007) (Homesavers). In Homesavers,
we wrote, "[i]t takes little imagination to understand that a
woman with children living in a subsidized apartment might find
anxiety-provoking a threat to put her on the street for failure
to pay an unreasonable, erroneously determined rent well beyond
her limited financial capacity." Id. at 458. Accordingly, we
affirmed the judge's findings that the tenant experienced severe
emotional distress when she received the notice to quit and that
the landlord's actions were willful. Id. at 458-459.
Here, the tenant reported to the landlord at the outset of
the tenancy that every screen in the apartment save one needed
repair and she could not lock her second-floor balcony slider
door. In response, several screens were removed for months or
years and the landlord suggested she put a wooden dowel in the
slider. When the patio door was replaced in October 2022, the
landlord did not provide a screen and objected to the tenant
procuring one and deducting it from her rent. From this
evidence, it "takes little imagination" to find that this woman
tenant suffered at least some compensable anxiety for the
landlord's inaction. Homesavers, 70 Mass. App. Ct. at 458.
4
First, the fact that the sliding patio door would not lock posed
a safety risk: both the risk of an intruder, even on the second
floor, and the risk that a grandchild could access the balcony
unsupervised and get injured. Second, given the conditions of
the screens, she could not let in fresh air without also letting
in bugs.
Similarly, it "takes little imagination" to find that this
tenant suffered some compensable anxiety over the landlord's
failure to provide a countersigned lease and pursuit of two
unsuccessful summary process actions. Homesavers, 70 Mass. App.
Ct. at 458. See Rental Prop. Mgt. Servs. v. Hatcher, 479 Mass.
542, 554 (2018) ("a summary process complaint brought by a
plaintiff without standing is a groundless claim, and we have
long recognized the harms often associated with having to defend
against groundless claims, including the time and expense of
defending a suit, emotional distress, and harm to reputation").
The landlord's failure to timely return the signed lease renewal
rider was not insignificant. The tenant had to argue the case
in the alternative -- was she a tenant at will or a tenant at
sufferance -- exponentially increasing the complexity of the
litigation and the tenant's potential liability. Under the
lease, if the landlord succeeded in the dispute, the tenant was
liable for use and occupancy payments equal to at least 150
percent of the lease rent, plus attorney's fees, including the
5
extra fees to litigate the rider issue. The majority quotes a
remark the judge made during trial that "there 'is going to be
some stress' associated with an illegal eviction action." Ante
at . The remark is accurate. Yet in his written orders, the
judge did not award the tenant any damages for that stress.
That was error.
2. Chapter 93A and willfulness. We are remanding the
c. 93A claim related to the sanitary code violations for a
determination of damages and attorney's fees, but not whether
the landlord's delay in replacing the tenant's screens was
willful and knowing. The judge credited the landlord's claims
that its delay of months and in some cases years to fix the
window screens and slider door screen was due to factors beyond
its control, namely the impact of the COVID-19 pandemic on
supply chains. However, the tenant notified the landlord of the
missing screens in September 2019. Effects of COVID-19 did not
disrupt supply chains from at least September through December
2019, and maybe even into March 2020.1 See Christie v.
Commonwealth, 484 Mass. 397, 398-399 (2020) (Governor declared
1 Lockdown measures did not start in Wuhan, China, until January 23, 2020. Guo et al., The Impact of Lockdown in Wuhan on Residents Confidence in Controlling COVID-19 Outbreak at the Destination Cities, Frontiers in Pub. Health (Aug. 15, 2022), https://pmc.ncbi.nlm.nih.gov/articles/PMC9421152 [https://perma .cc/QL34-28JF].
6
state of emergency throughout Commonwealth in response to the
spread of COVID-19; World Health Organization declared COVID-19
to be a global pandemic, on March 11, 2020). In other words,
the tenant first notified the landlord of the need for repairs
at least three and possibly six months before supply chains felt
the impact of the COVID-19 pandemic. In considering whether the
landlord's failure to remedy conditions in the apartment was
willful, it was clearly erroneous to excuse the landlord's
inaction based on COVID-19 before the pandemic began.
Accordingly, I also would include in the remand the question
whether the landlord's violation before the COVID-19 pandemic
was willful and knowing.
3. The daughter was a tenant. We are remanding this
matter to address claims on which we reverse the trial judge.
In the interests of fairness and efficiency, I would address the
judge's erroneous finding that the tenant misrepresented that
her daughter was a tenant under the lease. The judge wrote:
"The [tenant] filed an answer that initially included the
misrepresentation that her daughter . . . was also residing
in the premises and was thus a necessary party to the
action. Upon learning this, the [landlord] voluntarily
dismissed the action and immediately restarted the action
naming [the tenant] and her daughter as co-defendants
. . . . Upon learning that she had been named as a codefendant, [the daughter] immediately retained counsel who
filed a motion to dismiss claiming that she was not now and
had never been a resident of the premises. After reviewing
the facts, the parties agreed that [the daughter] was not a
resident at the premises and jointly agreed to a
stipulation of dismissal as to [the daughter] . . . .
7
After securing a jury verdict on two counts [the tenant] is
now seeking attorney's fees under the terms of the lease
and under G. L. [c. 186, § 20,] for the count of breach of
quiet enjoyment. In addition, she is also seeking to
reimburse herself and her daughter for the prior case that
was voluntarily dismissed and for matters directly related
to her own misrepresentations to the opposing parties and
the Court."
The judge even suggested that the daughter look to her mother
for damages. He continued by stating, "[a]s a result, I find
that no fees and costs should be awarded to the [tenant]
concerning" the first summary process action or concerning the
claims of the daughter. He then awarded the tenant a small
fraction of the attorney's fees her attorney represented were
incurred, $12,800 out of the $84,209.44 requested. He also
failed to account for the complexity introduced into this matter
by the landlord's claim that there was a written lease that it
had misfiled, and later found, days before trial was scheduled
to commence in the first summary process action.
The judge's conclusions that the tenant misrepresented the
status of her daughter are not correct. Under the lease, the
tenant's daughter and grandchildren were listed as "APPROVED
TENANTS." This lease provision expressly stated that "[t]he
Resident [the tenant] agrees and hereinafter certifies by
signing this Agreement that only the following named person(s)
shall be considered as a Resident with the lawful right to
occupy the Apartment." The tenant's daughter and grandchildren
8
were listed as such persons.2 One lease even said the daughter
did not live in the apartment and could be called in case of
emergency. On the lease renewal rider that the tenant signed on
June 23, 2022, the tenant listed her daughter and grandchildren
as tenants. This is the rider that the landlord never gave the
tenant until days before trial was scheduled in the first
summary process action (because the landlord maintained over
months that it wanted the tenant to leave).
In responding to the complaint in the first summary process
action, the tenant stated, "The tenants of this Unit are myself,
my daughter . . . , and her two minor children . . . ." That
was not a misrepresentation. That was an accurate statement of
the lease terms and what the tenant had written on the rider,
consistent with the prior leases. The tenant's answer did not
state that the daughter was a "necessary party." To the extent
the tenant's answer implied that the action was procedurally
defective because it did not name the daughter, it was incorrect
as a matter of law. See 21st Mtge. Corp. v. DeMustchine, 100
Mass. App. Ct. 792, 800 (2022) (no authority supports
2 This provision benefited both parties. It protected the landlord from other parties moving into the apartment and claiming protections as a tenant. It benefited the tenant because she traveled extensively for work and the provision ensured her daughter and grandchildren could access the apartment, swim in the pool, and enjoy other amenities.
9
proposition it is impermissible for landlord to evict only one
occupant at a time). The landlord dismissed the first summary
process action for a reason having nothing to do with the
tenant's answer or representation about the daughter,
representing to the judge that it had dismissed the case and
started over because the judge had denied the landlord's motion
to amend the account annexed.3 Id. The fact that the tenant
argued in her request for attorney's fees in the first action
that her daughter should have been included from the beginning
similarly was not a misrepresentation; it was an incorrect
statement of law. Moreover, the judge did not rely on this
pleading in his findings.
The trial judge also did not accurately describe the
stipulation to dismiss the daughter. The stipulation does not
state that "the parties agreed that [the daughter] was not a
resident at the premises." It merely states that the parties
"stipulate[d] to the dismissal of the [landlord's] case against
[the daughter] with prejudice."
The majority contends that the tenant did not challenge as
erroneous the findings that she made misrepresentations in her
answer about her daughter's status. But the tenant stated in
3 Given that the lease named the daughter and grandchildren as tenants and residents, it was to the landlord's benefit to resolve their status.
10
her opening brief that the daughter was a tenant under the lease
and more directly raised this argument in her reply brief.4 More
importantly, because the remand order in this matter includes
the issue of attorney's fees, justice requires us to address
this issue. The judge already denied the tenant attorney's fees
in the first action specifically based on an erroneous finding,
and it is logical to be concerned that the finding affected the
rest of the fee rulings.5 And to the extent that the trial
4 Moreover, the author of the majority opinion raised the question at oral argument.
5 The trial judge's frustration with the tenant is
particularly notable in light of the landlord's unlawful conduct. The landlord is no stranger to landlord-tenant law; it owns and operates 208 luxury apartments across thirteen buildings. Yet, it admits it failed to pay interest on the tenant's security deposit for years.
Moreover, the trial judge reached a different verdict from the jury on whether there was a lease, which the judge is allowed to do. See Kattar v. Demoulas, 433 Mass. 1, 12 (2000) ("It is indeed both possible and feasible for a judge deciding a c. 93A claim to make findings of fact that are contrary to those made by a jury on a parallel common law claim . . . ."). The landlord told the tenant in August and November 2022 that she did not have a mutually signed copy of the lease because the landlord did not sign the lease, and the tenant should move out. After litigation commenced, in January 2024, the landlord produced a countersigned lease renewal rider dated July 7, 2022, that it claimed was misfiled in another tenant's file. By crediting the landlord, the judge allowed the landlord to avoid a finding that it falsified evidence, though it means the landlord violated c. 93A. Of course, had the landlord genuinely intended to renew the tenant's lease, it could have just signed a new copy of the rider when she asked repeatedly for months for a signed copy. Even on appeal, the landlord presses that it is due attorney's fees under the last written lease.
11
judge's order on fees neglects to account for the landlord's
failure to provide the written lease that the judge found
existed and that complicated this entire case, it should be
reconsidered on remand.
4. Attorney's fees pursuant to the lease. The three
written leases between the parties each provided, in relevant
part:
"M. To pay amounts due for all costs, expenses and fees
including reasonable attorney's fees incurred by Management
due to any matter involving Resident including, but not
limited to, any eviction, disruption, loss, damage, or
destruction caused by Resident. Such costs, expenses and
fees shall be deemed additional rent under this Lease
Agreement."
Under G. L. c. 186, § 20, if a residential lease provides, as
here, that "in any action or summary proceeding the landlord may
recover attorneys' fees and expenses incurred as the result of
the failure of the tenant to perform any covenant or agreement"
in the lease, there is implied in the lease a covenant by the
landlord
"to pay to the tenant the reasonable attorneys' fees and
expenses incurred by the tenant as the result of the
failure of the landlord to perform any covenant or
agreement . . . under the lease or in the successful
defense of any action or summary proceeding commenced by
the landlord against the tenant arising out of the lease"
(alteration omitted).
To be fair to the judge, both sides litigated this case aggressively.
12
Aviksis v. Murray, 87 Mass. App. Ct. 141, 143-144 (2015),
quoting G. L. c. 186, § 20.
I agree with the majority that "[o]rdinarily, terms of a
lease carry over to a tenancy at will so long as the parties do
not agree to modify them." Ante at . I do not think the
jury verdict here changes this rule. Those terms carried over
to the tenant's continued tenancy even in the absence of a
written lease governing the tenancy. Even if the attorney's fee
provision of the last written lease did not carry over, the last
written lease did not end when the one-year term ended. Addis
v. Steele, 38 Mass. App. Ct. 433, 438 (1995). This provision,
by its own terms, continued to apply to disputes between the
parties; indeed, both parties agree the fee provision continues
to apply.6
On these limited bases, I respectfully dissent.
6 The majority concludes that "[b]ecause the tenant did not argue at trial that the terms of the earlier written leases continued into her tenancy at will, the argument is waived on appeal." Ante at note 10. The tenant did not waive the issue. Issues addressed by the judge in an order, even if not raised by a party, are not waived. Commonwealth v. Vargas, 475 Mass. 338, 344 n.6, 7 (2016). Here, the judge decided this issue in his order on fees, and the tenant's brief addresses the issue. Ironically, whether the fee provision of the lease survives appears to be the one thing on which the parties can agree.