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.

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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.

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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, supra

is 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.

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