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14-P-1010                                            Appeals Court

              DIANE SAIA1   vs.   BAY STATE GAS COMPANY.


                            No. 14-P-1010.

         Suffolk.      April 15, 2015. - December 15, 2015.

            Present:   Cohen, Wolohojian, & Maldonado, JJ.


Massachusetts Retail Instalment Sales Act. Massachusetts
     Consumer Credit Cost Disclosure Act. Consumer Protection
     Act, Class action. Practice, Civil, Summary judgment.
     Contract, Lease of equipment.



     Civil action commenced in the Superior Court Department on
November 2, 2010.

     After review by this court, 81 Mass. App. Ct. 1127 (2012),
the case was heard by Janet L. Sanders, J., on motions for
summary judgment.


     Valeriano Diviacchi for the plaintiff.
     J. Christopher Allen, Jr. (Troy Lieberman with him) for the
defendant.


     MALDONADO, J.     The plaintiff appeals from a judgment of

dismissal contending, as she did below, that a transaction


     1
       Individually and as a representative of other persons
similarly situated.
                                                                    2


involving the lease of a water heater was actually a credit sale

in disguise, and, consequently, that the defendant's failure to

make certain required disclosures amounted to common-law

misrepresentation and a violation of G. L. c. 93A.    Guided by

Silva v. Rent-A-Center, Inc., 454 Mass. 667 (2009) (Silva), a

Superior Court judge concluded that the transaction at issue did

not meet the definition of either a "credit sale" under the

Consumer Credit Cost Disclosure Act (CCCDA), G. L. c. 140D, § 1,

or a "retail installment sale agreement" under the Retail

Instalment Sales and Services Act (RISSA), G. L. c. 255D, § 1,

and, accordingly, granted summary judgment in favor of the

defendant.   We agree and affirm.

    Background.   In July, 2010, the plaintiff, Diane Saia,

entered into an agreement with the defendant, Bay State Gas

Company (Bay State), for the installation of a new water heater

at her home in Longmeadow.    The plaintiff signed a document

entitled "Appliance Lease Agreement," which obligated her to pay

$28.16 per month for three years for use of a water heater.

The total lease payments for the three-year "minimum term"

amounted to $1,013.76.   That amount combined with a $220 upfront

installation fee brought the plaintiff's total obligation under

the agreement to $1,233.76.    At the end of the minimum term,

both the plaintiff and the defendant could cancel the lease at

any time upon a thirty-day written notice.     Absent the written
                                                                       3


cancellation notice, the lease could continue indefinitely.      The

plaintiff was also given the option to purchase the water heater

at any time during the lease (including within the minimum

term).   Under this buyout option, the purchase price was the

greater of two amounts:   (1) the sum of one-half of the paid

lease payments subtracted from a "total installed price" of

$1,510.87,2 or (2) $75.   After making thirteen lease payments

totaling $366.08, the plaintiff chose to exercise the purchase

option and paid an additional $1,381.66 pursuant to the contract

buyout formula.3    Adding together the lease payments, the

upfront installation fee, the buyout price, and the sales tax,

the plaintiff spent a total of $1,967.74 to take ownership of

the water heater.

     On November 10, 2010, the plaintiff filed a four-count

amended class action complaint asserting misrepresentation

(Count I), violations of G. L. c. 93A (Count II), unjust

enrichment (Count III), and seeking rescission on the basis that

     2
       While not defined in the written agreement, the total
installed price reflected the wholesale cost of the heater plus
a markup, the labor costs for installation, and the defendant's
operating and maintenance costs. The price to purchase the
water heater from the defendant upfront instead of leasing it
would have been similar to the "total installed price."
     3
       Applying the buyout formula, the total rental payments of
$366.08 were divided by two (one half of the total lease
payments paid to date). The resulting figure of $183.04 was
then subtracted from the total installed price of $1,510.87 for
a resulting buyout purchase price of $1,327.83, to which $53.83
in sales tax was added for a sum total of $1,381.66.
                                                                     4


the defendant had violated G. L. c. 93, § 48 (Count IV).       A

Superior Court judge dismissed the entire complaint for failure

to state a claim pursuant to Mass.R.Civ.P 12(b)(6), 365 Mass.

754 (1974).   This court, in an unpublished decision pursuant to

Appeals Court Rule 1:28, affirmed the dismissal of counts III

and IV and reversed the dismissal of the remaining claims which,

resting on the CCCDA and the defendant's failure to disclose

interest charges, alleged common-law misrepresentation and a

violation of G. L. c. 93A.    Saia v. Bay State Gas Co., 81 Mass.

App. Ct. 1127 (2012) (Saia I).4      Following remand on the

reinstated counts, the judge entered summary judgment in favor

of the defendant on the plaintiff's amended complaint, and the

plaintiff timely filed her appeal.

     Summary judgment.   In reviewing a grant of summary

judgment, we consider the evidence in the light most favorable

to the nonmoving party and determine whether "all material facts

have been established and the moving party is entitled to a

judgment as a matter of law."     Augat, Inc. v. Liberty Mut. Ins.

Co., 410 Mass. 117, 120 (1991).      "We may consider any ground

supporting the judgment."    Ibid.

     4
       In the plaintiff's amended complaint and in the appeal
that followed, the plaintiff rested her claim on an alleged
violation of the CCCDA. There was no claim under RISSA.
Accordingly, in Saia I, we did not consider, as we do now, the
effect of RISSA and the Supreme Judicial Court's decision in
Silva (interpreting the application of only the RISSA statute to
a lease agreement) to her claim.
                                                                   5


     The plaintiff contends the transaction at issue was

actually a disguised credit sale or a retail instalment sale

agreement and, as a result, that the defendant failed to make

certain disclosures required by the CCCDA and RISSA.5    The

plaintiff asserts this failure amounts to common-law

misrepresentation and a violation of G. L. c. 93A.   The first

step in our inquiry, therefore, is to determine whether the

transaction meets the definition of a credit sale under the

CCCDA or a retail instalment sale agreement under the RISSA.

The CCCDA defines a credit sale as:

     "any contract in the form of a bailment or lease if the
     bailee or lessee contracts to pay as compensation for use a
     sum substantially equivalent to or in excess of the
     aggregate value of the property and services involved and
     it is agreed that the bailee or lessee will become, or for
     no other or a nominal consideration has the option to
     become, the owner of the property upon full compliance with
     his obligations under the contract."

G. L. c. 140D, § 1, inserted by St. 1981, c. 733, § 2.     The

RISSA similarly defines a retail instalment sale agreement as:

     "any contract in the form of a bailment or lease if the
     bailee or lessee contracts to pay as compensation for use a
     sum substantially equivalent to or in excess of the value
     5
       Following remand, the plaintiff raised RISSA in a motion
seeking partial summary judgment. In granting summary judgment
for the defendant, the motion judge addressed the plaintiff's
claims under RISSA both because the plaintiff raised RISSA in
her motion, and because RISSA spells out the same disclosure
requirements as those specified in the CCCDA. See G. L.
c. 255D, § 31 (indicating that transactions subject to RISSA are
also subject to CCCDA). For the same reasons, we also consider
the application of RISSA.
                                                                      6


    of goods involved and it is agreed that the bailee or
    lessee will become, or for no other or for a nominal
    consideration has the option to become the owner of the
    goods upon full compliance with his obligations under the
    contract."

G. L. c. 255D, § 1, as appearing in St. 1981, c. 733, § 14.       The

operational language of the two statutes is virtually

indistinguishable, differing only in the manner in which each

describes the object of the agreement.       The object of the

agreement in a credit sale is defined as "property and

services," while it is defined simply as "goods" for a retail

instalment sales agreement.     We nevertheless address each

statute separately.

    In Silva, the Supreme Judicial Court considered a certified

question from a judge of the United States District Court for

the District of Massachusetts concerning whether a "consumer

lease agreement" for a laptop computer was actually a retail

instalment sale agreement in disguise and, therefore, subject to

RISSA regulation.     Silva, supra at 668.    Emphasizing that both

requirements of the statute had to be met, the court stated that

in order for a transaction to be a retail instalment sale

agreement, the contract must both "obligate the consumer to pay

an amount substantially equivalent to, or in excess of [the

value of] the goods involved and the consumer must have the

option to become the owner for no other or nominal consideration
                                                                   7


on full compliance with his or her contractual obligations."

Id. at 673 n.11.   In evaluating a contract under this two-prong

test, the court directs that we look "to the nature of the

contract at the time it was formed, focusing on the parties'

contractual rights and obligations at that point.     See 4 J.J.

White & R.S. Summers, Uniform Commercial Code § 30-3, at 19 (5th

ed. 2002)."   Id. at 674.   The court also observed that

"application of a regulatory framework does not depend on the

economics of hindsight."    Ibid.   Applying this analytical

framework to the lease agreement into which the plaintiff

entered here, we conclude the agreement with Bay State does not

qualify as a retail instalment agreement under RISSA.

     While it appears that there may be at least a colorable

claim that the lease agreement at issue here meets the first

prong of the test identified in Silva, supra at 673 n.11,6 we


     6
       Under her lease agreement, the plaintiff was obligated to
pay a monthly rental fee, including tax, of $28.16 for a minimum
term. At the end of the minimum three-year lease term, the
plaintiff would have been obligated to have paid $1,013.76 in
rental fees, plus an additional upfront installation fee of $220
for a total contract price of $1,233.76, inclusive of sales tax.
This figure amounts to about seventy-five per cent of the stated
$1510 installed price, which is significantly higher than the
minimal one-week $39 payment required in Silva, supra. Plus,
the plaintiff asserts that $1510 is an inflated price for a
water heater. According to the plaintiff, the actual price of
an installed water heater is $1200, and the defendant does not
dispute that there is arguably a factual question regarding the
installed price, which, according to the plaintiff, results in a
sum "substantially equivalent to or in excess of the value" of
the water heater. See Silva, supra at 674. Without conceding
                                                                      8


nevertheless agree with Bay State that the plaintiff's claim

fails on the second prong.     In order for the plaintiff to take

ownership of the water heater at the end of her three-year lease

term, she would have had to make an additional payment of

$1,003.99 -- the $1510 installed price minus $506.88 (one-half

of   $1,0137) plus tax.    That payment, which is nearly two thirds

of the $1,510.87 installed price, is, in the words of the

statute, neither "no other" nor "nominal consideration" and,

accordingly, precludes a conclusion that the lease agreement at

issue here constitutes a retail instalment sale agreement under

RISSA.8     See Silva, supra at 674.



that the first prong is satisfied by the three-year lease term
at issue here, the defendant contends that even if that prong
was satisfied, the plaintiff's claim fails on the second prong.
Ibid.
      7
          Three years of monthly rental payments at $28.16.
      8
       Counterintuitively, the transaction may have qualified as
an instalment sale had the payoff amount been less. In other
words, by charging more money, i.e., structuring the deal such
that only a small portion of the lease payments was credited
toward the purchase price, the transaction was potentially
transformed from a sale to a lease, and fell outside of RISSA's
consumer protection reach, even though considering the upfront
payment, lease payments, and payoff payment, the consumer would
have paid approximately forty-six per cent above the $1,510
installed price to take ownership of the water heater. Saia
contends that because the agreement involves a long-term lease
of a permanent household fixture, which by its very nature
results most often in purchase, extension, or renewal of the
lease at the end of the three years, RISSA applies. Stated that
way, however, while the agreement may appear to disfavor
consumers in that regard, she points to no wording in the
statute or any case law that draws the distinctions she urges.
                                                                     9


    Bay State now urges that we apply the reasoning of Silva to

the plaintiff's claim under the CCCDA.    As noted, Silva

addressed the definition of a retail instalment sale agreement

under RISSA.   We agree that the identical language used by the

two statutes in defining their respective sales transactions

invites application of the same analysis.    That approach was

recently acknowledged by the United States Court of Appeals for

the First Circuit in a similar case involving a water heater

lease.    See Philibotte v. Nisource Corporate Servs. Co., 793

F.3d 159, 167 (1st Cir. 2015).   The court noted, however, that

the Supreme Judicial Court had not yet spoken to the application

of Silva in the CCCDA context.    Id. at 166.   Instead, the court

reasoned that the plaintiff's lease in that case failed to meet

the first prong of the CCCDA definition for a credit sale and.

thus, the court did not address whether Silva required the same

result.   See Philibotte v. Nisource Corporate Servs. Co., supra

at 167 ("We need not, and so should not, reach that issue

because Philibotte's claim plainly fails to meet the first prong

of the CCCDA definition").

    In light of Philibotte v. Nisource Corporate Servs. Co.,

supra, and the arguments raised in this appeal, we are now

persuaded that Silva's interpretation of the definition of a

retail installment sale under RISSA should apply as well to the

CCCDA's definition of a credit sale.     First, the two statutes
                                                                  10


are expressly connected pursuant to § 31 of RISSA, as appearing

in St. 1981, c. 733, § 23, which provides that "[a] transaction

subject to the provisions of this chapter shall also be subject

to the provisions of chapter one hundred and forty D . . . ."9

We interpret this to mean that the statutes should be given the

same consideration, so as to achieve their common goal.    See

generally, May v. SunTrust Mort., Inc., 467 Mass. 756, 759

(2014), quoting from Fidler v. Central Coop. Bank, 226 B.R. 734,

736 (Bankr. D. Mass. 1998) (CCCDA designed "to assure a

meaningful disclosure of credit terms" and protect against

inaccurate and unfair credit billing); Wilkins, The New

Massachusetts Retail Installment Sales Act, 51 Mass. L.Q. 205,

206-208 (1966) (RISSA to provide substantial protection to

consumers, including the disclosure of finance charges on

obligations paid in more than one instalment).

     Furthermore, the two statutes share the same overriding

purpose and, with respect to the relevant definitions, nearly

identical language.    Therefore, they should be treated in a

consistent manner.10   That the two statutes are aimed at somewhat


     9
       Although RISSA was enacted in 1966, § 31 was amended in
1981 to make reference to c. 140D, when the latter went into
effect. See St. 1981, c. 733, § 23.
     10
       A similar approach has been adopted with respect to
identical language in the disclosure requirements of the CCCDA
and the Federal Truth in Lending Act (TILA), 15 U.S.C. § 1635.
See, e.g., May v. SunTrust Mort., Inc., 467 Mass. 756, 759
                                                                   11


different aspects of consumer credit transactions reflects, we

believe, the historical development of consumer credit

legislation generally, rather than a legislative intent that

their virtually identical provisions be treated differently.

See Curran, Legislative Controls as a Response to Consumer-

Credit Problems, 8 B.C. Indus. & Com. L. Rev. 409, 419 (1967)

(as a result of piecemeal legislation responding to changes in

the consumer-credit market, "[w]hen regulation of the same

subject matter occurs in acts that apply to different classes of

arrangements, similarity of treatment may be observed").

    For these reasons, in our view, application of Silva's

RISSA analysis to the identical operational language in CCCDA's

definition of a credit sale compels the same result.   As noted

in our discussion under RISSA, we understand full compliance

with contractual obligations, under the second prong of the

CCCDA's definition, to mean completion of the three-year lease

term, irrespective of the option to renew.   Since the plaintiff

could not become the owner of the water heater for nominal

consideration at the end of the three-year term, the lease

agreement did not constitute a credit sale under the CCCDA, and

Bay State's alleged failure to provide the plaintiff with the


(2014) (interpreting CCCDA consistently with TILA, upon which
the State statute was modeled); Rodrigues v. Members Mort. Co.,
323 F. Supp. 2d 202, 210 (D. Mass. 2004) (essentially identical
disclosure requirements of the CCCDA and TILA "do not require
separate analysis").
                                                                   12


disclosures required under the CCCDA did not constitute a

violation of c. 93A.

     Because the parties' transaction involving the water heater

was neither a credit sale nor a retail instalment sale

agreement, Bay State was not obligated to make disclosures

pursuant to the CCCDA or RISSA.11    The lack of statutory

disclosure, therefore, cannot serve as the basis for common-law

misrepresentation or c. 93A claims.    We affirm the entry of

summary judgment on that basis.

     Other matters.    a.   Unreviewable claims.   The plaintiff

also appeals from what she claims is the judge's denial of her

motion to further amend the complaint.    On the record before us,

however, there is no indication that the judge acted on this

motion.   Without a ruling on the motion, there is no disposition

for us to review.     Marcil v. John Deere Indus. Equip. Co., 9

Mass. App. Ct. 625, 632 (1980).12



     11
       The Philibotte case involved the same plaintiff's counsel
and defense counsel, as well as the same defendant, as in this
case. (Nisource was described as doing business as Bay State
Gas Co. Philibotte v. Nisource Corporate Servs. Co., supra at
160.) It also involved the same general allegations that a
transaction involving a water heater was actually a disguised
credit sale and that the defendant failed to make the required
disclosures. Id. at 161.
     12
       The plaintiff also seeks to appeal from the judge's
denial of her motion for a preliminary injunction. In view of
our disposition of the case on the merits, we need not address
this claim.
                                                                     13


    b.    Motion to vacate.   The plaintiff appeals from the

judge's denial of a motion to vacate the dismissal of her unjust

enrichment claim, which dismissal we affirmed in Saia I.       The

plaintiff cites no authority, and we know of none, that

authorizes the Superior Court to effectively overrule our

decision.   The plaintiff mistakenly cites the "law of the case"

doctrine, see Peterson v. Hopson, 306 Mass. 597, 601-602 (1940),

which has no application in the circumstances presented here.

    c.    Dismissal of recission claim.   Finally, we also reject

the plaintiff's claim that the judge misinterpreted our decision

in Saia I by declining to consider her G. L. c. 93, § 48,

claims.   In Saia I we expressly affirmed the dismissal of the

plaintiff's claim for rescission of the agreement under G. L.

c. 93, § 48, and the judge did not err in so concluding.

                                    Judgment affirmed.
