BERTHA KANEUNYENYE & Another v. CLINTON MILLWORKS TENANT, LLC, & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-835
BERTHA KANEUNYENYE1 & another2
vs.
CLINTON MILLWORKS TENANT, LLC, & others.3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs appeal from a summary judgment entered by
the Superior Court in favor of defendant Minol, Inc. (Minol).
We affirm.
Background. We briefly summarize the relevant facts from
the summary judgment record in the light most favorable to the
nonmoving party, here the plaintiffs. See Milliken & Co. v.
Duro Textiles, LLC, 451 Mass. 547, 550 n.6 (2008). Clinton
Millworks Tenant, LLC, is the landlord of 132 units at "The
Lofts," which is a residential property (the property) located
in Clinton. In 2012, Clinton Millworks, LLC,4 contracted with
1 Individually and on behalf of all others similarly situated.
2 Rufaro Nyarota, individually and on behalf of all others
similarly situated.
3 Clinton Millworks Manager, LLC; and Minol, Inc.
4 It appears that Clinton Millworks, LLC, is a separate entity
from defendants Clinton Millworks Manager, LLC, and Clinton
Minol to provide gas and water and sewer submetering services
for the property. Pursuant to that 2012 agreement, Minol was
responsible for the installation, billing, calculation, and
collection of payments for gas and water and sewer utilities on
behalf of Clinton Millworks, LLC.
On December 1, 2017, the plaintiffs entered into a rental
agreement with Clinton Millworks Tenant, LLC, to rent apartment
unit C415 at the property. While living at the property, the
plaintiffs paid Minol for submetered gas and for submetered
water and sewer utilities. Prior to invoicing the plaintiffs
for such charges, Minol had received a notice from the
Massachusetts Department of Public Health (DPH) stating, inter
alia, that "Massachusetts law and regulation prohibits sub-
metering of gas," and that some of its practices (related to
submetering and surcharges Minol included on its bills to
different tenants) violated Massachusetts law and regulation.
On May 16, 2019, the plaintiffs filed a putative class
action complaint, and on July 15, 2019, filed a first amended
class action complaint containing various causes of action
Millworks Tenant, LLC. For purposes of our analysis, any
distinction among any Clinton Millworks entities is immaterial
because the present appeal centers solely on the conduct of
Minol, and all claims against the named Clinton Millworks
entities have been dismissed.
2
against Minol and the Clinton Millworks defendants.5 On December
4, 2019, a Superior Court judge (first judge) allowed Minol's
partial motion to dismiss pertaining to the plaintiffs' common
law claims of unjust enrichment and negligent misrepresentation
against Minol. The remaining counts against Minol were two
counts for violations of G. L. c. 93A, § 2, and one count for
declaratory judgment. See note 5, supra.
In December 2020, a Superior Court judge (second judge)
denied Minol's first motion for summary judgment.6 On or about
March 19, 2021, the first judge denied the plaintiffs' motion
for class certification as to the plaintiffs' submetering claims
against Minol. In her decision denying class certification, the
first judge determined that the measure of damages for both the
gas and the water and sewer submetering violations "is the
5 The first amended complaint contained seven counts against
Minol: unjust enrichment (counts I and IV); negligent
misrepresentation (counts II and V); violation of G. L. c. 93A,
§ 2, for violations of 105 Code Mass. Regs. § 410.354(C) (2005)
for the submetering of gas (count III); violation of c. 93A for
violations of G. L. c. 186, § 22, for the submetering of water
and sewer service (count VI); and declaratory judgment (count
IX).
6 In her written memorandum of decision, the second judge noted
that the plaintiffs alleged in their first amended complaint
that they had "suffered financial harm as a result of [Minol's]
conduct"; that they had retained an expert witness who planned
to visit the property to determine "the amount by which the
total of rent and additional rent paid by the [p]laintiffs
exceeded the fair rental value of the premises"; and that she
was inclined to grant the plaintiffs' request for further
discovery under Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974),
at that stage of the case.
3
amount the plaintiffs paid for rent and additional charges that
exceeded the fair rental value of their unit."7,8 The first
judge further noted that "[t]he plaintiffs have accepted this
measure of damages as an alternative theory of injury here."
On September 28, 2021, Minol filed its second motion for
summary judgment. In a comprehensive memorandum, a different
Superior Court judge (third judge) allowed the motion. This
appeal ensued.
Discussion. 1. Standard of review. Summary judgment is
appropriate where there are no genuine issues of material fact,
and the moving party is entitled to judgment as a matter of law.
Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). We
review a decision to grant summary judgment de novo. See Berry
v. Commerce Ins. Co., 488 Mass. 633, 636 (2021).
2. Analysis. The plaintiffs argue that Minol's knowing
and unlawful submetering of both gas and water and sewer
utilities constituted a violation of G. L. c. 93A;9 that Minol's
7 The first judge had previously referenced this measure of
damages in her 2019 decision allowing Minol's partial motion to
dismiss, as did the second judge in her denial of Minol's first
motion for summary judgment.
8 Where we conclude, for the reasons discussed infra, that the
plaintiffs failed to demonstrate that they suffered a cognizable
harm for purposes of c. 93A -- economic or otherwise -- we need
not decide whether this measure of damages is correct.
9 The plaintiffs also claimed that Minol's conduct violated G. L.
c. 186, § 22 (c), (e), and (j). See note 5, supra. That
statute applies to a "landlord" or "owner" of property and thus
does not apply to Minol. Indeed, the second judge recognized as
4
imposition of added "base charges" to the plaintiffs' utility
bills was likewise unlawful; and that these practices caused
them financial harm. Minol counters that the plaintiffs failed
to present expert testimony or any nonspeculative evidence to
demonstrate that the plaintiffs suffered any distinct cognizable
injury, and that there is no evidence in the summary judgment
record showing that the submetering or the imposition of base
charges made them "worse off" than they would have been had
Minol not submetered their utilities and imposed base charges.
On the record before us, Minol has the better argument.
Viewed in the light most favorable to the plaintiffs, the
evidence shows that Minol violated regulatory prohibitions by
submetering and by imposing base charges on the plaintiffs'
utility bills. This conduct constituted an invasion of a
legally protected interest, which, without more, does not
entitle a plaintiff to nominal damages and attorney's fees. See
Tyler v. Michaels Stores, Inc., 464 Mass. 492, 503 (2013).
"[I]nstead, the violation of the legal right . . . must cause
the consumer some kind of separate, identifiable harm arising
much in her decision denying Minol's first motion for summary
judgment, but held that Minol's conduct could constitute a
violation of G. L. c. 93A in the form of "unfair or deceptive
acts . . . without an underlying statutory violation." In any
event, for the reasons discussed infra, we conclude that the
plaintiffs have failed to demonstrate that they suffered a
distinct, compensable harm for purposes of c. 93A.
5
from the violation itself." Id. Here, the evidence does not
show anything beyond the violation itself. A plaintiff is not
entitled to recover statutory damages and attorney's fees simply
because a defendant did not comply with a statute or regulation.
See, e.g., Bellermann v. Fitchburg Gas & Elec. Light Co., 475
Mass. 67, 73 (2016); Hershenow v. Enterprise Rent-A-Car Co. of
Boston, 445 Mass. 790, 801-802 (2006) (nothing suggests that
Legislature ever intended noncompliance with statutes or
regulations to automatically constitute an "injury" for purposes
of c. 93A). Rather, the plaintiff must also demonstrate that
the noncompliance caused a distinct compensable loss, economic
or otherwise. See Hershenow, supra at 791 ("proving a causal
connection between a deceptive act and a loss to the consumer is
an essential predicate for recovery under our consumer
protection statute"). See also Tyler, supra; Lord v. Commercial
Union Ins. Co., 60 Mass. App. Ct. 309, 321-322 (2004).
We further note that here, the plaintiffs alleged, in part,
that they suffered economic harm, but failed to proffer expert
testimony, or other evidence, showing that the amount paid by
the plaintiffs for their utilities exceeded the amount that they
would have paid had Minol not submetered their utilities and
added base charges.10 See Bellermann, 475 Mass. at 75 n.14.
10To be clear, we do not hold that a plaintiff in a case brought
under G. L. c. 93A, § 9, must always show economic harm. That
6
Indeed, their claims are speculative at best.11 Moreover, to the
extent that the plaintiffs argue that they suffered noneconomic
harm, their evidence shows nothing more that the type of
inchoate harm that our courts have rejected. See Tyler, 464
Mass. at 503; Hershenow, 445 Mass. at 800-801 (plaintiffs did
not experience any claimed loss, economic or noneconomic, where
plaintiffs were not "worse off" than they would have been absent
statutory noncompliance); Lord, 60 Mass. App. Ct. at 321-322.
In sum, on the record before us, the plaintiffs have not
demonstrated that Minol's deceptive act caused actual
compensable loss, economic or otherwise. See Hershenow, suprais not the state of the law in Massachusetts. See, e.g., Greene
v. Philip Morris USA, Inc., 491 Mass. 866, 878-879 (2023)
(evidence supported determination that defendant's deceptive
acts caused noneconomic harm by causing plaintiff to switch to
light cigarettes and continue smoking rather than quit). In the
present case, however, the plaintiffs did claim that Minol's
conduct caused them economic harm. To the extent that the
plaintiffs also claim that they suffered noneconomic harm, their
allegations and evidence align with the overly broad
interpretation of Leardi v. Brown, 394 Mass. 151, 160 (1985),
that Massachusetts appellate courts have since rejected. See
Tyler, 464 Mass. at 502-503; Hershenow, 445 Mass. at 800-802.
11 The plaintiffs assert in their brief that Minol charged them
an amount greater than what they would have paid "if they had
been provided their utility service by the authorized Utility
Provider." The only evidence the plaintiffs cite to in support
of that proposition, however, are utility bills from Minol.
That evidence failed to demonstrate that the plaintiffs paid
more than they would have if Minol had not submetered their
utilities or added additional charges.
7
at 802.12 Therefore, we affirm the allowance of summary
judgment.13,14
Judgment affirmed.
By the Court (Neyman, Grant &
Hershfang, JJ.15),
Clerk
Entered: July 21, 2023.
12 Our decision should not be read as an endorsement of Minol's
conduct. We merely hold that in the absence of evidence of a
distinct cognizable injury -- in this limited context and under
these particular facts -- the third judge properly granted
summary judgment in Minol's favor.
13 To the extent we do not discuss other arguments made by the
parties, they "have not been overlooked. We find nothing in
them that requires discussion." Commonwealth v. Domanski, 332
Mass. 66, 78 (1954).
14 We reject Minol's assertion that the plaintiffs' appeal was
frivolous and decline its request for attorney's fees, double
costs, and interest pursuant to Mass. R. A. P. 25, as appearing
in 481 Mass. 1654 (2019), Mass. R. A. P. 26, as appearing in 421
Mass. 1655 (2019), and G. L. c. 211A, § 15. We likewise deny
the plaintiffs' request for appellate attorney's fees and costs.
15 The panelists are listed in order of seniority.
8