NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

14-P-17                                                Appeals Court

           SHOREH KARAA & another1    vs.   KUK YIM & others.2


                               No. 14-P-17.

         Middlesex.       October 8, 2014. - December 5, 2014.

              Present:     Kafker, Trainor, & Milkey, JJ.


Real Property, Lease. Contract, Performance and breach.
     Landlord and Tenant, Termination of lessee's obligation,
     Rent, Security deposit, Consumer protection. Damages,
     Mitigation, Attorney's fees. Consumer Protection Act,
     Landlord and tenant, Trade or commerce.



     Civil action commenced in the Superior Court Department on
September 30, 2011.

     The case was heard by Kathe M. Tuttman, J.


     Edward A. Broderick for the plaintiffs.
     Wei Jia, for the defendants, submitted a brief.


     KAFKER, J.       The primary issue presented in this landlord-

tenant case is the proper application of the security deposit


     1
         Fadi Karaa.
     2
       China Real Estate Development Investment & Trust Fund
Corporation and Chiung Fong.
                                                                      2


provisions in G. L. c. 186, § 15B.    The residential property was

owned by Shoreh Karaa and Fadi Karaa (collectively, the Karaas),

and rented by China Real Estate Development Investment & Trust

Fund Corporation (CREDIT), Kuk Yim, and Chiung Fong

(collectively, the tenants).    After a bench trial, the Superior

Court judge found that the tenants had breached their lease with

the Karaas, and that the tenants' obligations under the lease

were not excused under the doctrine of frustration of purpose.

The judge also found that the Karaas were not liable for alleged

violations of G. L. c. 186, § 15B, stemming from their

mishandling of the tenants' security deposit.     The judge further

determined that the Karaas had not committed fraud or breached

the covenant of quiet enjoyment, that they properly had

mitigated their damages, and that they were not liable for

alleged violations of G. L. c. 93A.    The trial judge did find,

however, that the Karaas were liable under G. L. c. 186,

§ 15B(2)(a), for their failure to pay interest on the tenants'

last month's rent.    On appeal, the tenants take issue with the

trial judge's holdings in favor of the Karaas.     We affirm.

    Background.      In March, 2010, the Karaas placed their home

located at 83 Spring Valley Road in Belmont (property) up for

rent at $4,500 per month through listings on the Internet site

"Craigslist" and with a real estate agent.     On May 10, 2010, the

tenants and the Karaas entered into a written lease agreement
                                                                    3


for the property at a reduced rent of $4,300 per month, with a

starting date of June 16, 2010.   The lease was for one year and

fifteen days.   The lessees initially listed on the lease were

CREDIT and Yim, as the lease was signed by Yim both in her

personal capacity and in her capacity as chief financial officer

for CREDIT.   Subsequently, a new cover page to the lease was

substituted, listing Yim and Fong as lessees.   This change was

made to allow their children to attend school in Belmont.

     At the time Yim signed the lease, the tenants gave the

Karaas a check for $8,600, which included $4,300 for a security

deposit and $4,300 for the last month's rent.   Shoreh3 requested

a tax identification or Social Security number so that she could

open an escrow account to deposit the funds, and the tenants

responded that they would provide the number at a later date.

Shoreh deposited the check into her own interest-bearing account

the same day the lease was signed.   Over the course of the

tenancy, the tenants never provided the Karaas a tax

identification or Social Security number.   Though the Karaas

previously had leased other properties and knew that they were

required to segregate the security deposit from their personal

account and to provide the tenants with a receipt in compliance

with G. L. c. 186, § 15B, they did not do so.


     3
       We use the first names of the Karaas, where applicable, to
avoid confusion.
                                                                    4


     In August of 2010, Fong and Yim, and their children,

traveled to China.   They intended to return to Belmont later

that month, but due to complications with their visas, they were

unable to reenter the United States.    The tenants paid rent for

August, September, and October.4    On October 26, 2010, Yim sent

the Karaas an electronic mail message (e-mail) stating that,

because the visa applications for herself and the three children

had been rejected, they would not be able to return to the

United States, and that the tenants therefore would be

terminating the lease.    She stated that the Karaas should apply

the tenants' earlier check of $8,600 to cover the November rent

and as "compensation" for the termination of the lease.     Yim

further stated that Fong would be returning to the United States

around November 15 and would arrange for the move and any

necessary paperwork.

     In early December, the Karaas posted the house for rent on

Craigslist and with a real estate agent.    Because of their past

experience leasing other properties, the Karaas were aware that

it likely would be more difficult to lease the property during

the winter months.     They eventually relet the house for $4,200

per month beginning April 1, 2011.    On September 30, 2011, the

Karaas brought a two-count complaint against the tenants for


     4
       The tenants earlier had paid rent covering June 16 through
July 31.
                                                                   5


breach of contract and breach of the implied covenant of good

faith and fair dealing.   Prior to litigation, the Karaas sent

the tenants a check, dated September 25, 2011, for $4,604.88 for

"security deposit return."5   The Karaas did not pay the tenants

any interest on the last month's rent.

     In response, Yim brought counterclaims alleging that the

Karaas breached the lease by failing to deliver the entire

property, did not comply with the statutory requirements of the

security deposit statute and the last month's rent statute, and

engaged in unfair and deceptive practices in violation of G. L.

c. 93A.   Yim additionally claimed that her purpose in entering

the lease, i.e., to allow her children to attend school in

Belmont, was frustrated by circumstances beyond her control, the

rejection of their visa applications.    Lastly, Yim claimed the

Karaas failed to mitigate their damages subsequent to the

breach.

     After a jury-waived trial, the judge found for the Karaas,

awarding them $19,861,6 plus statutory interest of $5,106.23, and


     5
       The Karaas voluntarily added twelve percent interest to
this amount.
     6
       The judge arrived at $19,861 by calculating as follows:
rent of $4,300 per month for the seven-month period from
December 1, 2010, through June 30, 2011 ($30,100); utilities for
December of 2010, through March of 2011 ($1,800); and the real
estate agent's fee of $750, for a total of $32,650. Subtracted
from this amount was the rent collected from the successor
tenant for the months of April, May, and June, 2011 ($4,200 per
                                                                      6


attorney's fees in the amount of $24,098.70.7     The judge included

an offset of $189 for trebled interest on Yim's last month's

rent deposit,8 though the judge otherwise dismissed the

counterclaims.

     Discussion.     1.   The tenants' obligations under the lease.

A.   Yim's frustration of purpose defense.    Yim cannot be excused

from her obligation under the lease to pay rent on the basis of

a frustration of purpose argument.     Yim argues that her

principal purpose in leasing the property was to send her

daughter to school in Belmont, and that once her and her

family's visa applications were rejected, thereby preventing

them from reentering the United States, this purpose was

substantially frustrated.     Yim maintains that this frustration

discharged her obligations under the lease.

     The Supreme Judicial Court has held that the doctrine of

frustration of purpose is a companion rule to the doctrine of

impossibility.     See Mishara Constr. Co. v. Transit-Mixed


month, totaling $12,600), and $189 for interest due to Yim on
the last month's rent.
     7
       The terms of the lease provided the basis for the award of
attorney's fees.
     8
       The judge held that because the Karaas paid no interest on
the last month's rent payment of $4,300, Yim was entitled to
recover five percent interest on that amount from June 16, 2010,
the date of commencement of the tenancy, through October 31,
2010, the last day she paid rent for the premises. That
amounted to sixty-three dollars, which then was trebled in
accordance with the statute. G. L. c. 186, § 15B(2)(a).
                                                                        7


Concrete Corp., 365 Mass. 122, 128-129 (1974); Chase Precast

Corp. v. John J. Paonessa Co., 409 Mass. 371, 374 (1991).       "The

principal question in both kinds of cases remains whether an

unanticipated circumstance, the risk of which should not fairly

be thrown on the promisor, has made performance vitally

different from what was reasonably to be expected."     Chase

Precast Corp., supra (citations omitted).     When applying the

doctrine of frustration of purpose, a judge must consider "the

foreseeability of the supervening event, allocation of the risk

of occurrence of the event, and the degree of hardship to the

promisor."    Id. at 375 n.4.   Given the importance of the factual

context surrounding the lease agreement, the determination of

these questions is reserved for the trier of fact.    See Mishara

Constr. Co., supra at 127, 130; Chase Precast Corp., supra at

376.    In the case before us, the trial judge found the tenants'

visa problems to be a foreseeable risk.

       "[A] contracting party cannot be excused where the only

'frustration' consists in the fact that known risks assumed by

him have turned out to his disadvantage."     Baetjer v. New

England Alcohol Co., 319 Mass. 592, 602 (1946).     See Essex-

Lincoln Garage, Inc. v. Boston, 342 Mass. 719, 721 (1961).        The

trial judge found that Yim "knew or should have known that there

was a possibility that the family's visa status might change,

and she voluntarily undertook that risk."     The record supports
                                                                    8


this conclusion.9   Thus, the trial judge was correct in finding

that the doctrine of frustration of purpose did not excuse the

tenants' obligations under the lease.

     B.   CREDIT's obligations under the lease.   The tenants

posit that CREDIT should not be held liable for breach of the

lease due to the later substitution of the lease cover page,

which listed Yim and Fong, not CREDIT, as tenants.   However, the

tenants did not raise this issue in their pleadings or at trial.

Therefore, we decline to consider this argument, as it was not

properly preserved for appeal.   See Milton v. Civil Serv.

Commn., 365 Mass. 368, 379 (1974); R.W. Granger & Sons, Inc. v.

     9
       As stated in Yim's testimony at trial, the tenants planned
their trip to China in large part because, though Yim had been
granted L-1A status as of April 15, 2010, she and her children
would need to reenter the country in order to secure their
visas. L-1A visas are available to executives and managers of
international companies, and allow these foreign employees to
relocate to their company's United States office or, for those
foreign companies that do not yet have affiliated United States
offices, allow them to send an executive or manager to the
United States to help establish a United States office or
subsidiary. In order to qualify, the foreign employee must have
worked abroad for the company for at least one continuous year
within the three years prior to their admission into the United
States. Yet, Yim had spent the prior three years living in the
United States to care for her children, who were attending
United States schools. The record shows that Yim and Fong
submitted their visa applications months prior to their trip to
China, with the assistance of legal counsel. This, in
conjunction with the trial judge's finding that Yim had prior
experience traveling between the United States and China,
suggests that Yim knew or should have known that she was in
violation of her L-1A status. These facts support the trial
judge's conclusion that Yim knowingly and voluntarily undertook
the risk that she and her family might not be able to reenter
the United States.
                                                                   9


J & S Insulation, Inc., 435 Mass. 66, 73-74 (2001); Reading Co-

Op. Bank v. Suffolk Constr. Co., 464 Mass. 543, 545 n.1 (2013).

     2.   Burden to prove mitigation of damages.   The tenants

argued at trial that, despite the underlying breach of the

lease, the Karaas failed to mitigate their damages by diligently

attempting to relet the property.   Nonetheless, the trial judge

held that the Karaas "used reasonable precautions to mitigate

their damages."   In reaching her conclusion, the trial judge

stated that the "defendant bears the burden of proving that a

plaintiff has failed to mitigate [her] damages . . . [and] Yim

has failed to meet her burden of proof on this issue."    On

appeal, the tenants argue that the trial judge improperly placed

the burden of proof regarding mitigation on the tenants, and

that the burden should have been on the Karaas, as the

landlords.

     Though who bears the burden at trial regarding the

mitigation of damages within the landlord-tenant context is the

subject of some uncertainty in Massachusetts,10 we need not


     10
       In Woodbury v. Sparrell Print, the Supreme Judicial Court
held that, in a claim for unpaid rent after termination of a
tenancy, the burden falls upon the landlord to show a reasonable
attempt to mitigate damages: "When therefore the answer sets up
neglect of the plaintiffs it must be considered not as a defence
in the way of confession and avoidance, but as a denial of the
existence of one of the essential elements of the case of the
plaintiffs, namely, due diligence as to reletting. The burden
of showing due diligence was upon the plaintiffs." 198 Mass. 1,
10 (1908). However, more than eighty years later in Atkinson v.
                                                                     10


resolve that issue here, as the trial judge explicitly found

that the Karaas did in fact mitigate their damages by acting in

a "timely and diligent manner" based on the evidence provided by

the Karaas at trial.   As discussed in the judge's order, the

Karaas advertised the house for rent in early December, 2010,

approximately one month after the tenants notified them of their

intention to terminate the tenancy.    The trial judge credited

Shoreh's testimony that she and Fadi paid a fee of $750 to a

real estate agent in an effort to relet the property.    Moreover,

the Karaas were able to secure a tenant by April of 2011,

despite the difficulty of the winter rental market.     Regardless

of which party the burden ultimately fell on, the evidence

supports the trial judge's conclusion that the Karaas indeed

fulfilled their duty to mitigate their damages, and we decline

to overturn such a finding.

    3.   General Laws c. 186, § 15B.    We are confronted with how

to apply the security deposit law requirements and penalties to



Rosenthal, this court took the opposite approach, stating that
"the burden of proving that the landlord had not made a
commercially reasonable lease, i.e., had not been diligent in
obtaining a reasonably fair rent, fell on the tenants." 33
Mass. App. Ct. 219, 224-225 (1992). The case cited by the trial
judge, McKenna v. Commissioner of Mental Health, addresses the
burden of proof issue only in the context of labor and
employment. 347 Mass. 674, 676 (1964). For further discussion
of the uncertainty in the case law, see Daher & Chopp, Landlord
and Tenant Law § 15:27, at 231-232 (3d ed. 2000); Warshaw,
Massachusetts Landlord-Tenant Law § 6:10 (2d ed. 2001 & Supp.
2014).
                                                                    11


the Karaas, who failed to place the security deposit in a

separate account when their tenants, who terminated the lease

seven months early, offered the security deposit and the last

month's rent as compensation for the early termination.     The

Karaas returned the security deposit five months after the

termination of the lease, shortly before bringing suit for

breach of the lease for failure to pay rent.     The tenants seek

treble damages for the failure to segregate the security deposit

and return it to them within thirty days of the termination of

the lease.   To resolve these claims, we must interpret the

complicated interplay between three subsections of G. L. c. 186,

§ 15B:   subsections (3)(a), (6), and (7), particularly as they

have been interpreted in two prior decisions of this court,

Castenholz v. Caira, 21 Mass. App. Ct. 758 (1986); and Taylor v.

Beaudry, 75 Mass. App. Ct. 411 (2009), S.C., 82 Mass. App. Ct.

105 (2012) (Taylor I).

    A.   The Karaas' § 15B(3)(a) violation.     Subsection (3)(a)

"imposes two duties on the landlord:     first, to establish the

escrow account, and, second, to furnish the tenant with a

conforming receipt, both within a thirty-day period measured

from receipt of the security deposit."     Castenholz, 21 Mass.

App. Ct. at 760.   The purpose of this subsection is to insure

that "tenant monies are protected from potential diversion to

the personal use of the landlord, earn interest for the tenant,
                                                                       12


and are kept from the reach of the landlord's creditors."

Neihaus v. Maxwell, 54 Mass. App. Ct. 558, 561 (2002).       Failure

to establish a separate, interest-bearing account or to provide

a tenant with an appropriate receipt represents a failure to

comply with the subsection, and entitles the tenant to

"immediate return of the security deposit."    G. L. c. 186,

§ 15B(3)(a), as appearing in St. 1978, c. 553, § 2.    See

Castenholz, supra.

    In the instant case, the Karaas clearly violated these

requirements.    The failure of the tenants to provide a Social

Security number did not preclude the Karaas from establishing a

separate account in compliance with § 15B.    See Neihaus, supra

at 560-561 (security deposit held separately from landlord's

funds in management company's account, in combination with

management company's internal accounting system, did not violate

§ 15B[3][a]).    The consequence of the violation, however, is

less obvious.

    Subsection (3)(a) works in tandem with subsection (6).        In

relevant part, subsection (6), as appearing in St. 1978, c. 553,

§ 2, provides:   "The lessor shall forfeit his right to retain

any portion of the security deposit for any reason, or, in any

action by a tenant to recover a security deposit, to

counterclaim for any damage to the premises if he:     (a) fails to

deposit such funds in an account as required by subsection (3)
                                                                  13


. . . [or] (e) fails to return to the tenant the security

deposit or balance thereof to which the tenant is entitled after

deducting therefrom any sums in accordance with the provisions

of this section, together with any interest thereon, within

thirty days after termination of the tenancy."

    The subsection (6) violations also trigger subsection (7),

which provides:   "If the lessor or his agent fails to comply

with clauses (a) . . . or (e) of subsection 6, the tenant shall

be awarded damages in an amount equal to three times the amount

of such security deposit or balance thereof to which the tenant

is entitled plus interest at the rate of five per cent from the

date when such payment became due, together with court costs and

reasonable attorney's fees."    G. L. c. 186, § 15B(7), as

appearing in St. 1978, c. 553, § 2.

    However, the imposition of damages under subsection (7) is

not automatic.    It first will depend on whether the violation at

issue concerns subsection (6)(a) or (6)(e).    As this court

explained in Castenholz, which involved a claim by a tenant

still in possession of the leased premises, subsection (7) is

triggered when the landlord "fails to comply with" the listed

clauses of subsection (6), yet subsection (6)(a) does not

include a deadline for returning forfeited funds to the tenant,

thereby leaving no means for determining what qualifies as
                                                                  14


noncompliance for the purpose of subsection (7).    Castenholz, 21

Mass. App. Ct. at 762.   See Taylor I, 75 Mass. App. Ct. at 414.

    In an effort to uphold the security deposit law's original

purpose of establishing "an equitable relationship between

tenants and landlords," rather than "pillory[ing] the landlord"

and being "arbitrarily penal," the Castenholz court emphasized

that though a tenant may be entitled to return of a security

deposit due to his landlord's noncompliance with subsection

(3)(a), the landlord would not be held to be in violation of

subsection (6)(a) unless, after the tenant demands return of the

deposit, the landlord "refuses to acknowledge his error and

return the deposit, thus forcing the tenant to employ legal

process to vindicate his rights."   Castenholz, supra at 763

(citations omitted).

    When applying the Castenholz framework, the facts before us

do not support the Karaas' liability under subsection (7) based

solely on their violation of subsection (3)(a).    Though the

tenants' counterclaim functions as an adequate demand for the

return of their security deposit, see Castenholz, supra at 764;

Young v. Patukonis, 24 Mass. App. Ct. 907, 909 (1987), the

Karaas did return the security deposit four days prior to the

initiation of the underlying litigation and more than one month

before the filing of the tenants' answer and counterclaims.     As

such, the Karaas are in violation of subsection (3)(a), but have
                                                                    15


not triggered the treble damages provisions of subsection (7)

through a violation of (6)(a).    We turn next to the alleged

violation of subsection (6)(e).

    B.   The Karaas' alleged § 15B(6)(e) violation.    Subsection

(6)(e) provides that a lessor forfeits his right to the security

deposit if he "fails to return to the tenant the security

deposit or balance thereof to which the tenant is entitled after

deducting therefrom any sums in accordance with the provisions

of this section, together with any interest thereon, within

thirty days after termination of the tenancy."    G. L. c. 186,

§ 15B(6)(e).   Ordinarily, this subsection allows a landlord to

withhold the entirety or a portion of a tenant's security

deposit for unpaid rent that a tenant has not validly withheld.

G. L. c. 186, § 15B(4)(i).   The trial judge here concluded that

the Karaas could have kept the security deposit because the

tenants "owed additional rent for the remaining lease term."

The Karaas, however -- due to their failure to place the

security deposit in a separate account -- already had forfeited

their right to retain the security deposit "for any reason,"

including the use of the security deposit as an offset for

unpaid rent.   G. L. c. 186, § 15B(6)(a).

    The tenants argue that by holding onto the security deposit

until September 25, 2011, more than five months after the end of

the tenancy, the Karaas therefore violated subsection (6)(e) and
                                                                         16


triggered the treble damages provisions of subsection (7).            The

tenants rest their argument on Taylor I.    In that case a

landlord returned a portion of a security deposit back to the

tenants after making deductions for cleaning and repairs.         75

Mass. App. Ct. at 412.   He did not make the deductions, however,

in accordance with the statutory requirements,11 and the tenant

filed a complaint that the failure to return his entire deposit

within thirty days violated subsection (6)(e).       Ibid.    After

receiving the complaint, the landlord returned to the tenant the

balance of the security deposit.   Ibid.   The trial judge

declined to award treble damages but this court reversed,

emphasizing that subsection (6)(e), unlike subsection (6)(a),

includes a set deadline for compliance -- within thirty days of

the termination of the tenancy.    Id. at 415-416.     Thus, the

Taylor I court held that the Castenholz framework, which

disallowed treble damages unless the landlord failed to return

the deposit after the tenant demanded its return, "is

inapplicable to a landlord's failure to return the tenant's

security deposit within the specified thirty days.      The

statutory obligation to return the deposit is clear, as is the

     11
       The landlord in Taylor I sent the tenant a check "with an
undated letter explaining that the check covered the security
deposit plus accrued interest," minus a sum "for cleaning and
repairs to the tenant's apartment. The landlord did not sign
the damage list under the pains and penalties of perjury, nor
did he provide . . . any evidence . . . of the estimated or
actual cost of repairing the damage." 75 Mass. App. Ct. at 412.
                                                                     17


time within which the deposit must be returned.     Equally

unambiguous are the consequences of failing to comply with that

deadline."   Id. at 416.

    However, Taylor I's strict application of subsection (7)

did not involve tenants who specifically offered the security

deposit as "compensation" for their breach of the lease.

Indeed, just the opposite was true in Taylor I:      the tenant in

Taylor I steadfastly demanded return of the entire security

deposit.   Id. at 412.     The record here indicates that the

security deposit was the subject of much of the communication

between the parties after the termination of the tenancy, with

the tenants attempting to use the security deposit as a

bargaining chip to avoid paying, and being sued about, the

remaining four months' rent.     Where the tenants offer the

security deposit as compensation for their own breach of the

lease, a landlord's failure to return the security deposit

within thirty days will not require an award of treble damages.

Rather, to avoid treble damages pursuant to subsection (7), the

landlord must return the security deposit, as was done here,

prior to the tenant's resort to litigation.

    The security deposit law was designed to afford "a wronged

tenant easy and inexpensive means of securing the repayment of

the security deposit, with penalty awards in appropriate cases,"

Jinwala v. Bizzaro, 24 Mass. App. Ct. 1, 6 (1987), i.e., those
                                                                     18


"that deal with conduct the Legislature considered 'particularly

reprehensible.'"     Taylor I, 75 Mass. App. Ct. at 415 (citations

omitted).    Though the Karaas violated § 15B(3)(a), the tenants'

offer of the security deposit as compensation prevents us from

concluding that the Karaas' failure to return it within thirty

days was the type of reprehensible conduct the Legislature

intended to target with subsection (7).

    4.      Evidence of attorney's fees.   General Laws c. 186,

§ 15B(2)(a), requires a landlord who receives rent in advance

for the last month of a tenancy to pay interest at the rate of

five percent per year.     After the parties' jury-waived trial,

the trial judge found for the tenants on their G. L. c. 186,

§ 15B(2)(a), claim.     In addition to providing a cause of action,

§ 15B(2)(a) also provides for the award of attorney's fees and

court costs.    Though the tenants assert that the trial judge

abused her discretion by preventing the tenants from presenting

evidence on this point, the record before us provides no support

for this contention.    The record and the trial judge's order

support the conclusion that the tenants introduced no evidence

at trial as to any court costs or attorney's fees they incurred

in connection with recovering the interest owed on the last

month's rent.    The trial judge cannot be faulted for failing to

admit evidence that was not offered at trial or even by way of

posttrial motions.     Moreover, by failing to argue this issue at
                                                                    19


trial, the tenants have failed to preserve it for appeal, and it

is therefore waived.    See Milton, 365 Mass. at 379; R.W. Granger

& Sons, Inc., 435 Mass. at 73-74; Reading Co-Op. Bank, 464 Mass.

at 545 n.1.

    5.     The tenants' G. L. c. 93A claim.   Under G. L. c. 93A,

§ 2(a), only unfair methods of competition and unfair or

deceptive acts or practices in the conduct of any trade or

commerce are prohibited.    In response to the tenants' claim that

the Karaas violated § 2(a) by failing to set up a separate

security deposit account, the trial judge found that the Karaas

could not be liable under the statute because they were not

"engaged in trade or commerce" when they leased their primary

residence to the tenants.    Neihaus, 54 Mass. App. Ct. at 563

(isolated rental of home while owner temporarily living overseas

did not amount to engaging in trade or commerce under G. L.

c. 93A).   See Young, 24 Mass. App. Ct. at 910 (actions of owner-

occupant of three-family building did not constitute trade or

commerce).    Based on the judge's factual findings, we discern no

error.

    Even if we were to distinguish this case from Neihaus or

Young by finding that the evidence of the Karaas' other real

estate activities suggests that the Karaas were in fact engaged
                                                                   20


in trade or commerce,12 the tenants still have failed to provide

sufficient evidence to support a claim for damages under G. L.

c. 93A.   The $4,300 security deposit together with interest at

twelve percent was returned to the tenants prior to the

commencement of litigation.   The security deposit also was

offered by the tenants as compensation for unpaid rent before it

was returned.

     "The invasion of a consumer's legal right (a right, for

example, established by statute or regulation), without more,

may be a violation of G. L. c. 93A, § 2, and even a per se

violation of § 2, but the fact that there is such a violation

does not necessarily mean the consumer has suffered an injury or

a loss entitling her to at least nominal damages and attorney's

fees; instead, the violation of the legal right that has created

the unfair or deceptive act or practice must cause the consumer

some kind of separate, identifiable harm arising from the

violation itself."   Tyler v. Michaels Stores, Inc., 464 Mass.

492, 503 (2013).   In specifically overturning their decision in

Leardi v. Brown, 394 Mass. 151 (1985), the Supreme Judicial


     12
       Previously, the Karaas had rented out the property for a
span of roughly five years, starting in the late 1990s. The
Karaas also owned several other rental properties in the prior
decade, up through the time of the trial. These facts are
consistent with the trial judge's findings that the Karaas had
prior experience as landlords, though the judge concluded that
the Karaas were not engaged in trade or commerce in this
instance, as the property was their primary residence.
                                                                  21


Court held in Tyler that "a plaintiff bringing an action for

damages under c. 93A, § 9, must allege and ultimately prove that

she has, as a result, suffered a distinct injury or harm that

arises from the claimed unfair or deceptive act itself."   Tyler,

supra.

    The tenants here failed to present argument, both at trial

and on appeal, regarding this most salient point.   Thus, based

on the record before us, the trial judge's holding that the

Karaas are not liable under G. L. c. 93A must stand.

    6.   Appellate attorney's fees.   The Karaas in their brief

have requested, and we grant, an award of appellate attorney's

fees pursuant to the lease, which provides for recovery of costs

and attorney's fees for breach.   In accordance with the

procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11

(2004), the Karaas may file documentation in support of their

request within fourteen days of the date of the rescript, and

the tenants shall have fourteen days thereafter to respond.

                                    Judgment affirmed.
