133 WEST MAIN STREET REALTY, LLC v. ALLEN KIMBALL & Another

APPEALS COURT

133 WEST MAIN STREET REALTY, LLC vs. ALLEN KIMBALL & another[1]

Docket:

24-P-245

Dates:

October 8, 2024 – February 14, 2025

Present:

Neyman, Singh, & Toone, JJ.

County:

Essex

Keywords:

Summary Process. Practice, Civil, Summary process, Consumer protection case, Damages, Interest. Consumer Protection Act, Landlord and tenant, Trade or commerce. Landlord and Tenant, Consumer protection, State sanitary code. State Sanitary Code. Damages, Interest. Interest. Statute, Construction.

Summary Process. Complaint filed in the Northeast Division of

the Housing Court Department on June 26, 2023.

The case was heard by Gustavo A. del

Puerto, J.

Michael Brier for

the landlord.

Timothy H. Barnes

for the tenants.

NEYMAN, J.

The plaintiff, 133 West Main Street Realty, LLC (hereafter, 133 West

Main or landlord), brought a summary process action to recover possession of a

premises located at 133 West Main Street in Merrimac and damages for unpaid

rent. The defendants, Allen and Ashley

Kimball (referred to individually by their first names and collectively as the

Kimballs or tenants), filed an answer asserting various affirmative defenses

and counterclaims. Following a trial in

the Housing Court, a judgment issued awarding the landlord unpaid rent and

costs and awarding the tenants possession along with damages for a violation of

the State sanitary code and G. L. c. 93A (c. 93A), breach of the

implied warranty of habitability, and partial attorney's fees under

c. 93A. On appeal, we consider

whether the judge erred in (1) determining that the rental activity in which the

landlord was engaged constituted "trade or commerce" within the

meaning of G. L. c. 93A, § 2; (2) awarding actual rather than

nominal damages for the c. 93A violation predicated on the State sanitary

code violation; and (3) failing to add interest to the landlord's back rent

award under G. L. c. 239, § 8A.

We affirm in part, vacate in part, and remand.

Background. We recite the trial judge's relevant findings

of fact, supplemented with undisputed evidence from the record. Allison v. Eriksson, 479 Mass. 626, 627

(2018). The premises consists of a 4,000

square foot, three-story, single-family house situated on "just over"

four acres of land. The house has eight

rooms, four bedrooms, and a "few baths." In January 2009, Daniel K. Mayer purchased

the premises and, in December 2012, conveyed it to 133 West Main, which owns

and leases the premises. Mayer also

operates Mayer Tree Service. Mayer and

Dickran Babigian, the "CFO" of Mayer Tree Service, manage 133 West

Main and "various properties," including residential and commercial

real estate.[2]

Allen began working for Mayer Tree Service

in or around 2003. In 2009, Mayer

allowed Allen to move into the premises because Allen was separating from his

first wife and needed a place to live.[3]

There was no written lease agreement, and for the first four years of

the tenancy, Mayer did not charge Allen rent.

Since the inception of the tenancy, Allen agreed to pay for the

utilities (electricity, water, and sewer) at the premises.[4]

In 2013, Ashley, Allen's girlfriend at the

time, moved into the premises. Beginning

in 2014, Allen began paying rent in the amount of $175 per week. That amount was deducted from Allen's

paycheck from Mayer Tree Service. In or

around July 2017, the rent was increased to $280 per week, and it was still

paid as a weekly deduction from Allen's paycheck.

In 2021, the now-married Kimballs learned,

through a pediatrician, that their young daughter's "lead level" was

high. As a result, the Commonwealth

conducted an inspection, and on December 10, 2021, the landlord learned of the

presence of lead paint at the premises.

133 West Main paid for the remediation of the lead paint, which was

"abated as of March 20, 2022."

For approximately two weeks, while the remediation was ongoing, Mayer

Tree Service paid for the Kimballs to stay at a hotel.

The Kimballs made their final rent payment

in late January 2022, and as of February 5, 2022, were behind on rent. On June 26, 2023, 133 West Main commenced the

present summary process action against the Kimballs. On August 24, 2023, the Kimballs filed their

answer and counterclaims alleging breach of the warranty of habitability,

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

c. 93A. The Kimballs also raised

affirmative defenses including "illegal rental" for failing to obtain

an occupancy permit prior to the tenancy as required by the regulations of the

town of Merrimac, and retaliation.

On October 16 and 20, 2023, a two-day

bench trial was held in the Housing Court.

On November 20, 2023, the trial judge issued findings of fact, rulings

of law, and an order for entry of judgment.

The judge awarded 133 West Main $24,640 in unpaid rent and for the

Kimballs' use and occupancy, and $238.60 in court costs, but he did not award

interest. On the counterclaims, the

judge awarded the Kimballs damages of $1,680 for 133 West Main's breach of the

warranty of habitability "due to the presence of lead paint at the

[p]remises." On the c. 93A

counterclaim, the judge found that 133 West Main was "in trade or commerce

with [the Kimballs]," and he awarded the Kimballs $9,487.34 "doubled,

for a total award $18,974.68," for violation of the State sanitary code by

failing to reduce to writing the Kimballs' obligation to pay for utilities,

which the judge found constituted a violation of c. 93A. The judge also awarded attorney's fees to the

Kimballs in the amount of $1,505 for the c. 93A violation.[5] The judge concluded that 133 West Main's

violation of the State sanitary code did not interfere with the Kimballs' quiet

enjoyment of the premises and denied relief on that claim, as well as on the

Kimballs' remaining claims of misrepresentation, retaliation, and illegal

rental. On December 8, 2023, the judge

issued an amended order for entry of judgment[6] delineating the damages

described above, and ordering that "[i]n accordance with G. L.

c. 239, § 8A, if the [Kimballs] deposit $4,223.92 with the Clerk's

Office of this Court within ten (10) days from the date of this order . . .

, judgment shall enter for the [Kimballs] for possession and the monies will be

disbursed by the Court to [133 West Main]" (emphasis in original). The Kimballs paid the required deposit, and

on December 21, 2023, judgment for the Kimballs entered. 133 West Main filed a timely notice of

appeal.

Discussion. 1.

General Laws c. 93A trade or commerce. 133 West Main first contends that the judge

erred in finding that it was engaged in trade or commerce within the meaning of

c. 93A. For the reasons discussed

below, we disagree.

General Laws c. 93A, § 2,

proscribes "unfair or deceptive acts or practices in the conduct of any

trade or commerce." Although the

statute does not specifically define the phrase "in the conduct of any

trade or commerce," the Supreme Judicial Court has explained that it

"must be read to apply to those acts or practices which are perpetrated in

a business context." Lantner v.

Carson, 374 Mass. 606, 611 (1978). See

Sullivan v. Five Acres Realty Trust, 487 Mass. 64 , 69 (2021), quoting Lantner,

supra at 607-608, 611 ("trade or commerce" provision of G. L.

c. 93A, § 2, "is intended to apply to individuals acting in a

business context and is therefore not applicable 'where the transaction is

strictly private in nature, and is in no way undertaken in the ordinary course

of a trade or business'").[7]

Whether the conduct at issue occurred in a business context "must

be determined from the facts of each case" and requires a court to

"examine the nature of the transaction, the character of the parties involved,

and the activities engaged in by the parties." Billings v. Wilson, 397 Mass. 614, 616

(1986). Ultimately, where the landlord

is "in the trade or business of providing rental housing, G. L.

c. 93A is implicated." Poncz

v. Loftin, 34 Mass. App. Ct. 909, 910 (1993).

Chapter 93A "may apply in some cases where the transaction does not

concern the principal business of the defendant"; however, courts

"should [also] examine whether the transaction is motivated by business or

personal reasons." Billings, supra.

In the present case, 133 West Main argues

that it was not acting in trade or commerce because Mayer allowed Allen to

reside at the premises as a friendly gesture; Allen lived there rent free for

four years; 133 West Main subsequently charged Allen rent below market rate;[8]

133 West Main did not generate a profit from the rental of the premises; and

there was no evidence that 133 West Main ever received any material financial

benefit from the rental of the premises.

The argument has some facial appeal.

See, e.g., Billings, 397 Mass. at 616 ("in the circumstances here,

concerning the rental of a dwelling unit in an owner-occupied two-family house,

where the landlord owns no other rental real property, c. 93A is not

applicable"); Neihaus v. Maxwell, 54 Mass. App. Ct. 558, 563 (2002)

(homeowner not liable under c. 93A "because he was not engaged in

trade or commerce with respect to the isolated rental of his [single-family]

home while he was temporarily living overseas"); Young v. Patukonis, 24

Mass. App. Ct. 907, 910 (1987) ("owner-occupant of a three-family

building, whose primary objective is personal, is not subject to G. L.

c. 93A"). Nevertheless, under

the particular facts of this case, we cannot conclude that the judge erred in

determining that 133 West Main was "in trade or commerce with [the

Kimballs]."

First, unlike in Billings, 397 Mass. at

616 , and Patukonis, 24 Mass. App. Ct. at 910 , there was no owner-occupant

involved in the rental, as the premises was owned by 133 West Main, a limited

liability company (LLC), and there is no evidence in the record that either

Mayer (or any of the LLC's managers) ever lived there. See Linthicum v. Archambault, 379 Mass. 381,

387 (1979) (plaintiff acting in business context within meaning of c. 93A

where she was using entire house as rental property when she contracted with

defendant to reshingle roof of home).

Second, while it appears that 133 West Main did not own any additional

properties apart from the premises, it was not an isolated rental property. Contrast Billings, supra at 614

("landlord owns the house and occupies the second-floor apartment. It is clear from the briefs of both parties

that this one apartment is the only rental property with which the landlord is

concerned"); Neihaus, 54 Mass. App. Ct. at 563 (personal residence rented

out by homeowner while he temporarily traveled overseas). Rather, it is undisputed that Mayer (and

Babigian) managed and leased numerous single and multifamily residential

properties as well as commercial properties.[9]

Third, on behalf of 133 West Main, Babigian worked with the Kimballs to

resolve issues, paid bills, and comanaged the premises, in addition to his role

managing other properties owned or operated by or through Mayer. Fourth, the Kimballs were not the first or

only tenants to occupy the premises.

Indeed, at Mayer's request, Allen removed the personal property of the

prior tenants because they had stopped paying rent. Finally, 133 West Main is itself an LLC. Of course, that status alone does not

establish that 133 West Main operated in trade or commerce under

c. 93A. See Sullivan, 487 Mass. at

69; Wodinsky v. Kettenbach, 86 Mass. App. Ct. 825, 833-834 (2015). See also Billings, supra at 616 ("the

character of the parties involved" is one factor in ascertaining whether

conduct occurred in business context).

However, viewed in conjunction with the other factors discussed above,

it is suggestive of a business context in this case.

The above-referenced evidence demonstrated

that 133 West Main, managed by and through Mayer and Babigian, was "in the

trade or business of providing rental housing"; that what may have

commenced as a transaction motivated by personal reasons morphed into one

occurring in a business context; and that c. 93A applies. Poncz, 34 Mass. App. Ct. at 910 . Thus, the totality of factors was sufficient

to support the judge's conclusion that 133 West Main was "in trade or

commerce" with the Kimballs.

2.

Damages for violation of State sanitary code. The judge found that 133 West Main's failure

to reduce to writing the Kimballs' obligation to pay for utilities at the

premises violated the State sanitary code and thus was an unfair practice under

c. 93A. For this violation, the

judge awarded the Kimballs actual damages of $9,487.34, doubled for a total

award of $18,974.68, plus a reasonable attorney's fee. 133 West Main does not challenge the judge's

findings of violations, nor could it.

The State sanitary code protects "the health, safety, and

well-being of occupants and the general public" by requiring the owner of

a dwelling to provide water, sewer, and gas or electricity absent a written

agreement for them to be provided by the occupant. 105 Code Mass. Regs. §§ 410.001(A), 410.130(C)(3),

410.200(A)(2) (2023).[10] In turn any

act or practice that "fails to comply with" laws or regulations

"meant for the protection of the public's health, safety, or welfare"

is a violation of c. 93A. 940 Code

Mass. Regs. § 3.[16](3) (1993). 133

West Main argues instead that where there was no violation of the covenant of

quiet enjoyment or diminution of the fair rental value of the premises, it was

error to award actual damages. We agree.

Our court addressed this very issue in

Poncz, 34 Mass. App. Ct. at 911 . There,

we considered whether actual damages should have been awarded to a tenant for a

landlord's violation of the State sanitary code where, "without any

written agreement, [the landlord] required the tenant to pay the electrical

charges for his heat and hot water throughout his occupancy." Id. at 910 .

We held that where "[t]he essence of the violation . . .

was the failure to reduce the oral agreement to writing," and where the

tenant did not prove actual damages, "only nominal damages may be

recovered." Id. at 911 . Critical to our holding, we noted that the

State sanitary code violation, which constituted "an unfair practice in

violation of G. L. c. 93A," did not render the premises

defective or uninhabitable. Id. at 910,

911 . We further recognized certain

additional circumstances that tenants could prove (in addition to the

landlord's failure to reduce to writing the agreement to pay utilities) to

sustain an award of actual damages. Id.

at 911 . Specifically, we stated that:

"Damages,

possibly multiple, might have been recoverable had the tenant proved that the

landlord had failed to provide adequate heating facilities . . . or

that the arrangement actually had a negative impact on his use and enjoyment of

the premises. Damages might also have

been recoverable had the tenant shown that he had objected to the arrangement

during the tenancy, that the rent and the cost of the utilities, together, were

more than the fair rental value of the premises, or that there was a meter

violation by the landlord" (footnotes omitted).

Id. As in Poncz, the violation of the State

sanitary code in the present case, which likewise constituted a violation of

c. 93A, involved the same failure to reduce to writing the tenant's

agreement to pay for utilities.

The Kimballs acknowledge the applicability

of Poncz, 34 Mass. App. Ct. at 911 , but claim that some of the above-noted

circumstances applied here. Initially,

the Kimballs argue that "the arrangement actually had a negative impact on

[their] use and enjoyment."

Id. This argument fails where the

judge found that the Kimballs "agreed to pay for the utilities since the

inception of the tenancy"; that 133 West Main had not "breached the

covenant of quiet enjoyment in this case"; and that the Kimballs'

obligation to pay for utilities without a written agreement did not constitute

a violation of their quiet enjoyment of the premises. These explicit findings refute any suggestion

that the Kimballs' obligation to pay for utilities interfered with their use

and enjoyment of the premises.

The Kimballs also contend that 133 West

Main failed to provide adequate heating facilities. This argument likewise fails for several

reasons. First, the judge made no such

finding. Second, the argument ignores

the explicit determination that the violation of the State sanitary code and

c. 93A for failing to reduce to writing the Kimballs' obligation to pay

for utilities did not constitute a violation of the Kimballs' quiet enjoyment

of the premises.[11] Third, the Kimballs

point to evidence at trial to the effect that on moving into the premises in

2009, Allen had to use space heaters and fix the heating system;[12] the

Kimballs experienced various electrical issues such as "breakers

popping"; and other heating issues arose during their tenancy. Here again, the judge's findings either

contradict these claims or do not support them.[13]

Next, the Kimballs contend that the amount

they paid in rent and utilities "far exceeded the rental value of the

premises." See Poncz, 34 Mass. App.

Ct. at 911 . Here, the Kimballs did not

provide any evidence at trial to show that the amount they paid in rent and

utilities exceeded the fair rental value of the premises. The judge made no such finding, and moreover,

the only evidence at trial regarding the fair rental value of the premises was

Babigian's testimony that the premises could have been rented for approximately

$4,000 to $5,000 per month.

Finally, it is undisputed that the judge's

award of actual damages -- $9,487.34 -- was the exact amount the Kimballs paid

for water and sewer utilities, as reflected by the invoices and payments

introduced at trial and through Ashley's testimony.[14] In addition, the judge's award of actual

damages did not include the amount that the Kimballs paid for electrical

utilities.[15]

In short, where (1) the sole basis for the

violation of c. 93A was the technical violation of the State sanitary

code, (2) the Kimballs agreed to pay for utilities since the inception of the

tenancy, and (3) the judge made an explicit and repeated finding that this violation

did not constitute a breach of the covenant of quiet enjoyment, the judge erred

in awarding actual rather than nominal damages.

Poncz, 34 Mass. App. Ct. at 911-912 .

See Youghal, LLC v. Entwistle, 484 Mass. 1019 , 1023 (2020) (no error by

judge in awarding nominal damages and reasonable attorney's fees to tenants for

landlord's violation of State sanitary code where lack of written agreement

concerning payment of utilities did not violate covenant of quiet enjoyment);

Knott v. Laythe, 42 Mass. App. Ct. 908, 910 (1997) ("judge was correct in

awarding statutory damages of $25 and a reasonable attorney's fee" for

requiring tenant to pay electrical charges for heat and hot water without

written agreement, which constituted violation of State sanitary code and

unfair practice under c. 93A). See

also Tyler v. Michaels Stores, Inc., 464 Mass. 492, 503 (2013) (invasion of

consumer's legal right without more "does not necessarily mean the

consumer has suffered an injury or a loss entitling her to at least nominal

damages and attorney's fees;" rather "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").

Contrast Wolfberg v. Hunter, 385 Mass. 390, 397-398 (1982) (discussing

calculation of actual damages award for landlord's violation of c. 93A in

case involving rodent infestation that created "substantial interference

with the use and enjoyment of the apartment" leased by tenants).

The findings of a violation of the State

sanitary code and corresponding liability under c. 93A are affirmed, as is

the judge's award of attorney's fees for the c. 93A violation. See Youghal, LLC, 484 Mass. at 1023. The amount of damages for the underlying

violation, however, along with any multiplying under c. 93A, must be

vacated and remanded to the Housing Court for recalculation.[16]

3.

Statutory interest. In the

amended order for entry of judgment, the judge declined to add interest to the

landlord's award under G. L. c. 239, § 8A. Instead, the judge ordered that the Kimballs

would have to pay interest only if they failed to make the $4,223.92 deposit

required under G. L. c. 239, § 8A. 133 West Main argues that the judge erred in

this regard. We agree.

"Our primary duty in interpreting a

statute is 'to effectuate the intent of the Legislature in enacting

it.'" Commonwealth v. Sabin, 104

Mass. App. Ct. 303 , 305 (2024), quoting Commonwealth v. Sousa, 88 Mass. App.

Ct. 47, 49 (2015). "The language of

the statute is the starting point for all questions of statutory

interpretation." Sabin, supra,

quoting Bank of N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503 , 507 (2019). "Statutory language should be given

effect consistent with its plain meaning.

Where . . . that language is clear and unambiguous, it is

conclusive as to the intent of the Legislature." Bank of N.Y. Mellon, supra, quoting Patriot

Resorts Corp. v. Register of Deeds for the County of Berkshire, N. Dist., 71

Mass. App. Ct. 114, 117 (2008).

The relevant portion of G. L.

c. 239, § 8A, provides:

"[i]f the

amount found to be due the landlord exceeds the amount found to be due the

tenant or occupant, there shall be no recovery of possession if the tenant or

occupant, within one week after having received written notice from the court

of the balance due, pays to the clerk the balance due the landlord, together

with interest and costs of suit."

The plain

language of the statute provides for the inclusion of interest without

exception. Because the judge here

determined after trial that the amount due to 133 West Main exceeded the amount

due to the Kimballs, the statute required the Kimballs to pay to the clerk the

balance due "together with interest." G. L. c. 239, § 8A. That amount should be calculated in the

present case from June 26, 2023, the date that the landlord commenced the

action. See G. L. c. 231,

§ 6C.[17] This portion of the

judgment also must be vacated and remanded.

Conclusion. For the reasons set forth above, we affirm in

part and vacate in part the judgment entered December 21, 2023. So much of the judgment that awarded damages

to the Kimballs for 133 West Main's violation of the State sanitary code, and

correspondingly under c. 93A, is vacated, as is the portion of the

judgment awarding the landlord back rent without interest. Those issues are remanded to the Housing

Court for recalculation as set forth in this opinion. In all other respects, the judgment is

affirmed.[18]

So ordered.

footnotes

[1] Ashley

Kimball.

[2] Mayer also

testified that he and his wife manage 133 West Main but did not testify as to

what her role in the management entailed.

[3] The judge

found that Allen was a tenant at will at the premises since November of

2008. This appears to be an error, as

the evidence at trial was that Allen moved into the premises in 2009.

[4] In 2009, when

Allen moved into the premises, there were problems with the heat that required

Allen to use space heaters. Shortly

thereafter, Allen notified Mayer about a broken hot water heater. Mayer told Allen that if he "wanted to

start paying rent, that he'd have it taken care of." Allen opted to fix the hot water heater

himself.

[5] The judge

determined the amount of attorney's fees after receiving posttrial submissions

from the parties.

[6] The amended

order for entry of judgment corrected a calculation error in the original order

for entry of judgment.

[7] General Laws

c. 93A, § 1 (b), defines trade and commerce to

"include" the "rent or lease" of real property. Insofar as there is no dispute that 133 West

Main ultimately rented the premises to the Kimballs, the conduct at issue would

seem to fall within the plain language of the statute. See McGrath v. Mishara, 386 Mass. 74, 86

(1982) ("The protection of c. 93A clearly extends to lessors of real

property, see G. L. c. 93A, § 9 [1], and thus to the

landlord-tenant relationship").

However, as the Supreme Judicial Court has clarified, such is not always

the case because § 1 of the statute must be read together with § 2,

which requires us to consider whether the act or practice at issue occurred in

a business context. See Lantner, supra

at 608-611 .

[8] As detailed

above, Allen lived at the premises rent free for approximately four years. It is undisputed, however, that the Kimballs

later paid rent to 133 West Main from 2014 to 2022.

[9] There is no

dispute that Mayer purchased the premises in 2009, transferred the premises to

133 West Main in late 2012, and at all relevant times, managed 133 West Main

and other residential and commercial properties.

[10] During the

Kimballs' tenancy these provisions were located at 105 Code Mass. Regs.

§ 410.001 (1997) and 105 Code Mass. Regs. § 410.354 (2005).

[11] The judge

did find that 133 West Main violated the implied warranty of habitability due

to the presence of lead paint in the home and awarded damages for that breach. However, it is clear from the judge's

findings and rulings that the breach of the implied warranty was limited to the

lead paint issue and did not pertain to the c. 93A violation that is the

subject of this appeal. Indeed, neither

party addresses the judge's implied warranty of habitability determination, and

the Kimballs do not claim in their appellate brief that that violation could

have served as the basis for the c. 93A damage award. Such an argument would have been futile, in

any event, where the judge explicitly found that (1) the c. 93A violation

stemmed from the failure to reduce the Kimballs' agreement to pay utilities to

writing, and (2) this violation did not constitute a violation of the covenant

of quiet enjoyment.

[12] It is

undisputed that the Kimballs did not begin paying rent until "[a]fter the

heating unit was fixed downstairs."

[13] Allen

testified at trial that at some point the hot water heater ceased working for a

second time, but he did not inform 133 West Main or Mayer about it. Ashley also testified to certain electrical

issues that arose, but she likewise testified that she did not relay those

concerns to 133 West Main or Mayer. See

G. L. c. 239, § 8A ("Whenever any counterclaim or claim of

defense under this section is based on any allegation concerning the condition

of the premises or the services or equipment provided therein, the tenant or

occupant shall not be entitled to relief under this section unless: [1] the owner or his agents, servants, or

employees, or the person to whom the tenant or occupant customarily paid his

rent knew of such conditions before the tenant or occupant was in arrears in

his rent").

[14] As noted

above, the judge doubled the $9,487.34 award to $18,974.68.

[15] The judge's

findings do not specify why he chose not to include the Kimballs' payments for

electrical utilities as part of the award of actual damages for the c. 93A

violation. We note, however, that there

was evidence at trial that Allen operated a marijuana "growth

facility," characterized by Mayer as a "major operation," in the

basement of the premises. Mayer

testified that the "operation" involved multiple lights and consumed

approximately thirty percent of the thirteen hundred square foot basement. Allen acknowledged at trial that he grew

marijuana in the basement of the premises "for a couple months

. . . to have a little fun" and agreed that it required a "significant

amount of electricity."

[16] In view of our

determination that the award of actual damages for the violation of c. 93A

cannot stand, the award of multiple damages likewise cannot stand, and we need

not address 133 West Main's claim of insufficient evidence that the violation

was willful and knowing. See Leardi v.

Brown, 394 Mass. 151, 163 (1985), abrogated in part by Tyler, 464 Mass. at

501-503 ("Because the Legislature has determined that an award of $25

suffices as nominal damages, it would be incongruous and inconsistent with that

determination to infer that in any circumstances the Legislature intended that

the nominal sum should be multiplied").

See also Lord v. Commercial Union Ins. Co., 60 Mass. App. Ct. 309 , 313

n.6 (2004), citing Leardi, supra at 162-163 ("The judge originally awarded

$50 in damages, doubling the statutory minimum of $25 because she found that

the defendant's violation was 'knowing.'

On the defendant's motion for partial reconsideration on the ground that

the statutory damages were not subject to multiplication, the judge reduced the

award to $25").

[17]

"General Laws c. 231, § 6C, provides that prejudgment interest

is awarded 'from the date of the breach or demand,' if established, but

otherwise from the date of the commencement of the action." Aronovitz v. Fafard, 78 Mass. App. Ct. 1, 10

(2010). Here, the judge did not make any

findings regarding the "date of the breach or demand," but he

explicitly found that 133 West Main "commenced this action by serving a

summary process summons and complaint upon [d]efendants . . . on June

26, 2023."

[18] The Kimballs

have requested attorney's fees pursuant to c. 93A. See Yorke Mgt. v. Castro, 406 Mass. 17, 20

(1989). In the present case, where the

Kimballs have prevailed on their c. 93A claim and we are remanding only

for recalculation of damages, a partial award of fees is warranted. See Northern Sec. Ins. Co. v. R.H. Realty

Trust, 78 Mass. App. Ct. 691, 698 (2011).

Accordingly, pursuant to the procedure set forth in Fabre v. Walton, 441

Mass. 9, 10-11 (2004), the Kimballs may file an application for appellate

attorney's fees within fourteen days of this decision, along with supporting

documentation, after which the landlord shall have fourteen days within which

to respond.