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15-P-366                                               Appeals Court

     DOUG CLARK & others1       vs.   LEISURE WOODS ESTATES, INC.


                              No. 15-P-366.

        Franklin.        November 13, 2015. - February 23, 2016.

              Present:    Milkey, Carhart, & Massing, JJ.


Damages, Breach of covenant of quiet enjoyment, Breach of
     implied warranty of habitability, Consumer protection case.
     Landlord and Tenant, Quiet enjoyment, Habitability,
     Consumer protection, Multiple damages, Snow and ice.
     Consumer Protection Act, Damages, Landlord and tenant.
     Manufactured Housing Community. Snow and Ice. Practice,
     Criminal, Witness.



     Civil action commenced in the Western Division of the
Housing Court Department on November 2, 2009.

    The case was heard by Robert G. Fields, J.


    Timothy N. Schofield for the defendant.
    Jan Stiefel for the plaintiffs.


    MASSING, J.     This appeal involves a series of landlord-

tenant disputes in the manufactured housing context.        The

    1
       Linda Clark, Alfred Henderson, Arthur Hicks, Donna
Jalbert, Jane Mayo, Shirley Moulton, and Jeannette I. Stefancik.
                                                                   2


plaintiffs, residents of Leisure Woods Estates (Leisure Woods),

a manufactured housing community in Orange, filed a complaint

alleging that the defendant, Leisure Woods Estates, Inc., which

owns, operates, and maintains Leisure Woods, failed to properly

maintain and repair the common spaces, roads, and home sites.

After a jury-waived trial, a judge of the Housing Court entered

judgment in favor of plaintiffs representing seven households,2

finding a breach of the implied warranty of habitability with

respect to the condition of the roads, interference with the

plaintiffs' quiet enjoyment of the common walking trails, and

separate and distinct breaches of the covenant of quiet

enjoyment with respect to the conditions of the seven individual

home sites.   The judge awarded injunctive relief and monetary

damages for the violations, including two separate awards of

three months' rent to each household under G. L. c. 186, § 14

(§ 14), for the breaches of the covenant of quiet enjoyment, and

a twenty percent rent abatement, trebled under G. L. c. 93A

(c. 93A) and the Attorney General's regulations promulgated

thereunder, for the breach of the warranty of habitability.      The


     2
       Originally, the complaint included twenty-two plaintiffs
representing sixteen households. Four of the original
plaintiffs have died since the complaint was filed and
suggestions of death were filed as to them. Ten of the other
original plaintiffs filed stipulations of dismissal during the
course of litigation. The remaining eight plaintiffs are before
us in this appeal.
                                                                   3


judge awarded each household $13,010.40 (a total of $91,072.80),

plus attorney's fees and costs.

    On appeal, the defendant argues that the judge erred in

awarding multiple triple rent damage awards under § 14 for

separate breaches of the covenant of quiet enjoyment, in

applying the warranty of habitability to potholes and

accumulations of ice and snow on the roads, and in excluding the

testimony of a "vital witness" for the defendant who did not

arrive in court until after the close of the evidence.     We

vacate one of the triple rent damages awards as duplicative, but

otherwise affirm the judgment.

    Background.    The defendant purchased Leisure Woods in

December, 1997.   The complex contains approximately 152

manufactured home sites.   The residents own their manufactured

housing units and pay the defendant a monthly rental fee for the

lots on which their homes are situated.   The parties have long

disputed their relative roles and responsibilities with respect

to the maintenance of the manufactured home sites and common

spaces.

    After a three-day trial, the judge made detailed findings

concerning three distinct violations by the defendant.     One

violation, a breach of the covenant of quiet enjoyment, related

to the residents' inability to use the walking trails.     Both the

previous owner and the defendant advertised access to the trails
                                                                   4


as a desirable amenity of tenancy at Leisure Woods, accessible

to all residents.   Beginning in 2007, however, the defendant

posted "no trespassing" notices at the entrances of the walking

trails and installed cables across some of their openings,

closing off access.   The judge awarded each household damages

equal to three months' rent based on the defendant's

interference with their quiet enjoyment of the trails.

    The judge found additional breaches of the covenant of

quiet enjoyment with respect to the plaintiffs' individual home

sites.   The judge found derelict conditions ranging from rotted

and collapsing retaining walls, to unsafe driveways and

walkways, to flooding.   Noting that all of the residents were

seniors, and that many of them suffered from disabling ailments,

the judge found "that the defendant's failure to address the

crumbling infrastructure of the lots has seriously interfered

with the quiet enjoyment and uses of the premises and forms an

independent violation of G. L. c. 186, § 14, separate and

distinct from the . . . the defendant's curtailment of the . . .

walking trails."    He awarded each household another three

months' rent as damages arising from these conditions.

    Finally, the judge found that the defendant chronically

failed to attend to the accumulation of ice and snow on the

roads throughout Leisure Woods, that extensive potholes remained

unfilled, and that the roads were often impassable.    The judge
                                                                       5


found that the defendant's failure in this regard constituted a

breach of the warranty of habitability.      He awarded each

household damages in the form of a rent abatement of twenty

percent for the period from March, 2008, through April, 2013,

and trebled this amount under c. 93A.3

     Discussion.    1.   Damages.   The defendant argues that the

judge made errors of law in providing two awards under the

triple rent clause of § 14 and in applying the implied warranty

of habitability to roadways.     We address each argument in turn.

     A.   Breaches of the covenant of quiet enjoyment.     The judge

found two distinct violations of § 14 based on breaches of the

covenant of quiet enjoyment and awarded each household two

separate awards of three months' rent.      The defendant argues

that § 14 permits only one triple rent award in a single action,

no matter how many distinct breaches of the covenant of quiet

enjoyment are proven.

     In general, an injured party may recover separate awards of

damages for claims or injuries that are "factually separable and

distinguishable."    Calimlim v. Foreign Car Center, Inc., 392

Mass. 228, 236 (1984).     See Abdeljaber v. Gaddoura, 60 Mass.

App. Ct. 294, 301 n.14 (2004).      The usual measure of damages for

breach of the covenant of quiet enjoyment is lost rental value,

     3
       In addition, the judge awarded the plaintiffs reasonable
attorney's fees and costs under both § 14 and c. 93A.
                                                                   6


that is, "the difference between the value of what the lessee

should have received and the value of what he did receive."

Darmetko v. Boston Hous. Authy., 378 Mass. 758, 761 n.4 (1979)

(Darmetko).    Section 14, however, allows tenants to recover

"actual and consequential damages."     G. L. c. 186, § 14, as

appearing in St. 1991, c. 481, § 22.4    This provision "was


     4
         Section 14 provides in part:

          "Any lessor or landlord of any building or part
     thereof occupied for dwelling purposes, other than a room
     or rooms in a hotel, but including a manufactured home or
     land therefor, who is required by law or by the express or
     implied terms of any contract or lease or tenancy at will
     to furnish water, hot water, heat, light, power, gas,
     elevator service, telephone service, janitor service or
     refrigeration service to any occupant of such building or
     part thereof, who [i] willfully or intentionally fails to
     furnish such water, hot water, heat, light, power, gas,
     elevator service, telephone service, janitor service or
     refrigeration service at any time when the same is
     necessary to the proper or customary use of such building
     or part thereof, or any lessor or landlord who [ii]
     directly or indirectly interferes with the furnishing by
     another of such utilities or services, or who [iii]
     transfers the responsibility for payment for any utility
     services to the occupant without his knowledge or consent,
     or any lessor or landlord who [iv] directly or indirectly
     interferes with the quiet enjoyment of any residential
     premises by the occupant, or who [v] attempts to regain
     possession of such premises by force without benefit of
     judicial process, shall be punished by a fine of not less
     than twenty-five dollars nor more than three hundred
     dollars, or by imprisonment for not more than six months.
     Any person who commits any act in violation of this section
     shall also be liable for actual and consequential damages
     or three month's rent, whichever is greater, and the costs
     of the action, including a reasonable attorney's fee, all
     of which may be applied in setoff to or in recoupment
     against any claim for rent owed or owing."
                                                                     7


intended to expand the damages recoverable for breach of the

covenant of quiet enjoyment," allowing tenants to be compensated

for "all reasonably foreseeable losses -- personal as well as

economic -- within the scope of statutory recovery."    Simon v.

Solomon, 385 Mass. 91, 112-113 (1982) (Simon).    Accordingly, the

plaintiffs were entitled to recover for all such losses

attributable to the defendant's interference with their use of

the walking trails and its failure to repair the decaying

infrastructure of their housing sites.

    Frequently, "damages in rent abatement cases are not

capable of precise measurement."    Brown v. LeClair, 20 Mass.

App. Ct. 976, 978 (1985).   Where this is the case, § 14 affords

an alternative remedy:   three months' rent, if greater than

actual and consequential damages.   See Darmetko, supra at 762

("Section 14 allows a minimum recovery of three months' rent as

an incentive to the pursuit of relief where the actual and

consequential damages are slight or are difficult to prove").

    Of course, a party may not recover multiple awards of

damages for the same injury based on different theories of

recovery -- such awards are said to be cumulative or

duplicative.   See Calimlim v. Foreign Car Center, Inc., supra at

235-236; Abdeljaber v. Gaddoura, supra.    See, e.g., Curtis v.

Surrette, 49 Mass. App. Ct. 99, 105 n.14 (2000) (tenants not

entitled to recover under both § 14 and State Sanitary Code
                                                                       8


based upon same lead paint violations).    The defendant relies on

Darmetko and Simon, supra, for the proposition that the two

triple rent awards for its breaches of the covenant of quiet

enjoyment are duplicative and inconsistent with the purpose of

§ 14.

        In Darmetko, a tenant sued the Boston Housing Authority

alleging violations of § 14 for ongoing defects in her

apartment.   Darmetko, supra at 759-760.   Finding a breach of the

implied warranty of habitability, a judge of the Housing Court

awarded the tenant $739.50 to compensate for the reduction of

the value of the leased premises attributable to defective

floors and a leaky roof and $415 as consequential damages,

namely water damage to her personal property.     Id. at 759.     In

addition, the judge found that the leaky roof (but not the

defective floors) interfered with the tenant's quiet enjoyment

of the apartment and awarded her triple rent damages under § 14

for each month during which the breach persisted, another

$5,358.   Id. at 760.

     The Supreme Judicial Court reversed the damages award on

two grounds.   First, the court found no statutory or other basis

for the tenant to recover cumulatively under two theories of

liability for the same wrong.    Id. at 761.   In addition, the

court held that   § 14 does not provide for the triple rent

clause to be invoked for each month in which the violation
                                                                      9


continues.    Id. at 761-762.   To the contrary, "[w]hen the actual

damages exceed three months' rent, . . . § 14 plainly states

that actual damages should be the measure of recovery."      Id. at

762.

       In Simon, 385 Mass. at 93-95, a tenant alleging repeated

flooding of her basement apartment prevailed after a jury trial

on claims of intentional infliction of emotional distress,

breach of the covenant of quiet enjoyment, and breach of the

warranty of habitability.    As in Darmetko, supra, the plaintiff

was awarded damages under each theory:      $35,000 for reckless

infliction of emotional distress, a $1,000 rent abatement for

breach of warranty, and $10,000 under § 14 for interference with

quiet enjoyment.     Simon, supra at 94.   On appeal, the court

concluded "that the $10,000 verdict for interference with quiet

enjoyment was, inescapably, an award of redundant damages" and

vacated the award.     Id. at 108.   Following Darmetko, the court

held that the triple rent award was not available because the

plaintiff's actual and consequential damages from the flooding,

awarded under the other two theories, exceeded three months'

rent.    Id. at 109-110.

       Arguing that the $10,000 award was not duplicative, the

tenant in Simon speculated that the jury might have arrived at

that figure based on ten separate awards of three months' rent

for poor conditions in the apartment other than the flooding.
                                                                  10


Ibid.     The court rejected the possibility of multiple triple

rent awards:     "When three months' rent has been assessed for one

violation, the incentive function of the triple rent provision

is fulfilled.     Therefore, we hold that a tenant proceeding under

§ 14 may collect only one such award, covering all claims that

the tenant raised or reasonably could have raised in the suit."

Id. at 110.

      Darmetko and Simon do not strictly govern the case before

us.     Despite the extended nature of the violations, the

plaintiffs here were not awarded repeated damages for each

rental period in which the breaches occurred, but rather one

triple rent award for each of two factually distinct breaches.

Nor were the two triple rent awards duplicative of any recovery

for actual or consequential damages.

      Nonetheless, the judge's award here is inconsistent with

the language in Simon, supra, that says only one triple rent

award is available in a single proceeding under § 14, no matter

how many ways the landlord interferes with the tenant's quiet

enjoyment.5    The plaintiffs might have shown that the defendant's


      5
       In providing two triple rent awards, the judge stated that
that the defendants' actions violated "separate and distinct
prong[s] of G. L. c. 186, § 14," and cited two Housing Court
decisions in which tenants recovered two triple rent awards on
that basis. Section 14, in fact, prohibits five separate
categories of landlord misconduct, the fourth being interference
with quiet enjoyment. See note 4, supra. This case involved
multiple violations of a single prong of § 14. Our decision
                                                                   11


interference with the quiet enjoyment of their homes and the

grounds of Leisure Woods caused them damages in excess of three

months' rent, and recovered damages in an amount so shown.

However, because the plaintiffs did not or could not prove

extensive actual and consequential damages, § 14 provided them

minimum damages equal to three months' rent (as well as costs

and attorney's fees) -- but only one triple rent award in a

single proceeding.6   Accordingly, on the facts of this case, we

must vacate one of each plaintiff household's two triple rent

awards.

     B.   Violation of c. 93A.   With regard to the roads, the

judge found that "[t]he extensive pot holes and unattended

accumulation of snow and ice constitute[d] a breach of the

warranty of habitability."   The judge further found that the

violation was wilful and knowing:    "[t]he defendant knew of, and

recklessly disregarded the need to, repair, plow, and sand

[Leisure Woods's] roads."    Accordingly, he trebled the

plaintiffs' damages under G. L. c. 93A.




does not address a situation in which a landlord violated two or
more clauses of § 14.
     6
       Moreover, if the defendant persists in violating § 14, the
plaintiffs may return to court. "If new violations arise after
the initial suit is filed, the tenant may recover triple rent in
a new proceeding." Simon, 385 Mass. at 111.
                                                                   12


     The defendant argues that the judge erred in classifying

the violation as a breach of the warranty of habitability, which

"applies to significant defects in the property itself," because

"[t]he natural accumulation of snow and ice is not such a

defect."   McAllister v. Boston Hous. Authy., 429 Mass. 300, 305-

306 (1999).7   We need not address whether the implied warranty of

habitability applies to the roadways of manufactured housing

communities -- which, we note, are an integral part of the

rented premises -- because we affirm the c. 93A award of treble

damages on different grounds from those on which the judge

relied.    See Foley v. Lowell Sun Publishing Co., 404 Mass. 9, 11

(1989); Schwartz v. Travelers Indem. Co., 50 Mass. App. Ct. 672,

673 (2001).    Here, the defendant's conduct violated c. 93A under

the Attorney General's manufactured housing regulations, 940

Code Mass. Regs. § 10.00 et seq. (1996).    "In appropriate cases,

preference should be given to entry of judgment under the

Consumer Protection Act, especially where the Attorney General's

regulations provide that certain conduct . . . is violative of

G. L. c. 93A."   Calimlim v. Foreign Car Center, Inc., 392 Mass.

at 235.




     7
       The reasoning and holding of McAllister have been limited
by Papadopoulos v. Target Corp., 457 Mass. 368 (2010), and
Sheehan v. Weaver, 467 Mass. 734 (2014).
                                                                    13


    "[T]he Legislature has, by G. L. c. 93A, § 2(c), delegated

to the Attorney General the power to promulgate rules and

regulations defining with specificity acts and practices which

violate G. L. c. 93A, § 2(a).    These rules and regulations have

the same force of law as those of any 'agency' as defined in

G. L. c. 30A, § 1(2)."    Purity Supreme, Inc. v. Attorney Gen.,

380 Mass. 762, 775 (1980).    Relevant to this case, the Attorney

General's manufactured housing regulations specifically provide

that "[a]n operator shall maintain and keep in good repair all

community roadways that are part of the common areas and

facilities, including but not limited to ensuring that roadways

are reasonably free of debris and potholes.    An operator shall

provide necessary snow plowing for all community roadways"

(emphasis supplied).     940 Code Mass. Regs. § 10.05(9) (1996).

    The judge found "overwhelming" evidence that the roads at

Leisure Woods were significantly damaged by potholes and broken

pavement.   The residents "testified credibly about the

defendant's inadequate removal of snow and treatment for ice on

the streets."   Thus, the same facts that the judge determined

violated the warranty of habitability, which have not been shown

to be erroneous, also violated the Attorney General's

manufactured housing regulations.    As the failure to comply with

the regulations amounts to an unfair or deceptive act or

practice in violation of c. 93A, see 940 Code Mass. Regs.
                                                                   14


§ 10.02(3) (1996), and the judge found the defendant's

violations to be wilful and knowing, the judge did not err or

abuse his discretion in awarding treble damages.8

     2.   Excluded witness.    The defendant contends that

excluding the testimony of its president, Glenn Gidley, was

"extremely prejudicial" and an abuse of discretion.     We

disagree.

     Gidley, to whom the defendant refers as a "vital witness,"

arrived inexcusably late on the day he was scheduled to testify

-- the last day of the trial.    The second day of trial concluded

with the fourth defense witness, the defendant's on-site manager

(who had been present in court on the first day of trial as

well), on the witness stand.    The defense expected to call two

more witnesses the next day, "Spanky" from Spanky's Tree Service

and Gidley.   The trial reconvened the next day at 11:05 A.M. and

the manager's direct testimony continued.    Her testimony

concluded after about an hour, but the next witness, Spanky, had



     8
       The judge did not err in awarding damages under c. 93A for
the conditions of the roadways in addition to damages under § 14
for the curtailment of the use of the walking trails and the
deterioration of the home sites. "[W]here the acts complained
of under common law, statute, or regulation are factually
separable and distinguishable from those claims to be unfair and
deceptive, or where those acts have not been found to be
violative of the Consumer Protection Act, there is no error in
permitting separate recoveries for separable injuries."
Calimlim v. Foreign Car Center, Inc., supra at 236.
                                                                   15


in defense counsel's words "opted not to show," and Gidley, who

"was supposed to arrive about 12:30," had not yet appeared.

    The judge attempted to accommodate the defendant by

granting a recess until 12:30 P.M.   When the recess ended at

12:37 P.M. and Gidley still was not present, the judge attended

to a few procedural matters to allow for more time.     Finally,

the judge instructed plaintiffs' counsel to begin her closing

argument.   Though Gidley arrived during plaintiffs' counsel's

summation, the judge declined the defendant's request to reopen

the evidence over plaintiffs' counsel's objection that it would

be unfair to allow Gidley to testify after her argument.

    The judge acted within his discretion in declining to allow

the witness to testify after the evidence had closed.    "The

trial judge is in the best position to balance the competing

claims of fairness to the litigants and the case-flow efficiency

presented by such a motion."   Scannell v. Ed. Ferreirinha &

Irmao, Lda., 401 Mass. 155, 158 (1987).   The defendant was

responsible for getting all of its witnesses to court in a

timely manner, and it would not have been a hardship for Gidley

to arrive at 11:00 A.M., when court was scheduled to convene

that morning.   The judge was more than fair and reasonable,

granting the defendant ample time and opportunity to allow for

Gidley's late arrival.   The judge's action was "not so much a

punitive sanction as it was the logical and fair resolution of a
                                                                    16


case where a party had failed properly to protect its

interests."   Id. at 160.   We discern no abuse of discretion.

See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).9

     Conclusion.   With respect to each of the seven plaintiff

households, one award of three months' rent ($1,026; $7,182

total) under § 14 is vacated.   The judgment is affirmed in all

other respects.

     The plaintiffs have requested and are entitled to an award

of appellate attorney's fees under § 14 and c. 93A.     See Yorke

Mgmt. v. Castro, 406 Mass. 17, 19 (1989); Homesavers Council of

Greenfield Gardens, Inc. v. Sanchez, 70 Mass. App. Ct. 453, 461-

462 (2007).   In accordance with the procedure set forth in Fabre

v. Walton, 441 Mass. 9, 10-11 (2004), the plaintiffs may file

documentation in support of their request for fees and costs

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

defendant shall have fourteen days thereafter to respond.10

                                    So ordered.




     9
       Our conclusion that it was within the judge's discretion
not to reopen the evidence disposes of the defendant's related
argument that the judge erred in making findings regarding the
defendant's liability in the absence of Gidley's testimony.
     10
       The plaintiffs' request for postjudgment interest should
be directed to the trial court. See G. L. c. 235, § 8;
Mass.R.Civ.P. 54(f), as amended, 382 Mass. 822 (1980).
