2018 Mass. App. Div. 216

March 9, 2018 - December 27, 2018

Appellate Division Northern District

Court Below: District Court, Malden Division

Present: Coven, P.J., Crane & Karstetter, JJ.

Alan Scott, pro se.

John Keough, pro se.

KARSTETTER, J. Alan Scott ("Scott") sued his former landlord, John Keough ("Keough"), for unreasonable attempts to collect a debt that he claimed not to owe and breach of quiet enjoyment. His complaint was dismissed pursuant to Mass. R. Civ. P. 12(b)(6) for failure to state a claim. We affirm.

Factual background. Scott alleged that Keough sent two missives to him at two separate addresses (one to a post office box, the other to Scott's aunt's address) in August and September of 2016, respectively. Each had a notation on the outside of the envelope implying that Scott had not paid Keough. The first notation read, "Last attempt before court," and the second read, "Damage Estimate + Unpaid Rent Bills." Notably, Scott had left the premises in July, 2016, before the offending letters were sent. [Note 1]

Scott's complaint had two numbered counts. Each count was based on alleged violations of G.L. c. 93, § 49(a), "93A Consumer Fraud statute," and a breach of his quiet enjoyment of the premises. Reading the complaint liberally, despite the two numbered counts being based on the two offending letters, we observe that the plaintiff essentially alleges two causes of action: one for a violation of G.L. c. 93A, § 9 premised on a violation of G.L. c. 93, § 49(a), and the other for breach of the covenant of quiet enjoyment. The "Damages" section of his complaint read, "By reason of the foregoing [two counts], and the rent having been paid in the amount of $1,000.00 per month, defendant is liable in the amount of statutory damages of $9,000.00 for ... [each count], and plaintiff is entitled to recover damages for defendant's unlawful conduct." He calculated the $9,000.00 for each count based upon the trebling of the $1,000.00 rent under the quiet enjoyment statute and the trebling of that sum pursuant to G.L. c. 93A.

Procedural history. A portion of the procedural history bears mention. Scott filed his complaint on October 31, 2016, and Keough filed his answer with counterclaim on November 15, 2016. Scott filed an answer to the counterclaim on November 21, 2016.

Keough later filed his motion to dismiss Scott's complaint pursuant to Mass. R. Civ. P. 12(b)(6) on March 13, 2017. On March 21, 2017, the plaintiff, who has at all times represented himself, filed, among other things, an opposition to the motion to dismiss

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and a motion for leave to file an amended complaint, to which he attached an amended complaint. This proposed amended complaint contained the same two numbered counts as the first complaint, and added counts for what could be construed to be intentional infliction of emotional distress, defamation, libel or "false light," and invasion of privacy, all of which were also based upon the two missives having been sent.

The court heard argument on March 22, 2017. It is unclear from the record before us whether the court heard argument on Scott's recently filed motion to amend the complaint; we do not have a transcript of the hearing. The motion to amend the complaint in the appendix provided by Scott is not endorsed by the judge; nor does the docket in the appendix include mention of any action on the motion to amend. [Note 2]

Notwithstanding the apparent lack of action on the motion to amend, the docket shows that on April 3, 2017, Keough filed a motion to dismiss most of the numbered counts of the amended complaint [Note 3] and two days later, Scott filed a motion to enlarge the time "1. to file written submissions to Defendant's 1st Motion to Dismiss; ... 3. to file opposition to Defendant's Motion to Dismiss Amended Complaint." On April 21, 2017, Scott filed his "consolidated supplemental briefing and opposition to defendants [sic] motion to dismiss amended complaint." On May 2, 2017, the court allowed Keough's first motion to dismiss by margin endorsement.

Shortly thereafter, Scott filed an appeal from the allowance of the motion to dismiss pursuant to Dist./Mun. Cts. R. A. D. A. 8C, which was dismissed without prejudice as being premature. This Division's decision and order provided: "Upon any allowance by the trial court of the plaintiff's motion for a Rule 54(b) separate judgment against him, or upon the entry of a final judgment adjudicating all claims and counterclaims, the plaintiff shall timely file a new notice of appeal and perfect that appeal under Rules 8A, 8B or 8C."

The litigation continued into 2018. When Keough failed to appear for a pretrial conference, judgment entered for Scott on Keough's counterclaim (it was dismissed), and Scott timely filed the instant appeal. His brief includes arguments with respect to the allowance of the dismissal of the amended complaint. We do not, however, reach those arguments, since the only motion to dismiss that was allowed on the record before us was the first such motion. See n.2, supra, and n.5, infra.

Analysis. Breach of quiet enjoyment claim. Scott alleged that his "claims arise from defendant's willful and malicious breaches of plaintiff's quiet enjoyment of the dwelling place" in violation of G.L. c. 186, § 14, which provides not just for actual damages but, as Scott noted, for "statutory damages of 3 months rent for each and every such violation." In a section of the complaint entitled "Damages," he alleged "the rent having been paid in the amount of $1,000.00 per month, defendant is liable in the amount of statutory damages." (emphasis added).

The covenant of quiet enjoyment "guarantees tenants the right to be free from 'serious' interferences with their tenancies." Jablonski v. Clemons, 60 Mass. App. Ct. 473, 476 (2004). A landlord violates G.L. c. 186, § 14 when his "acts or omissions

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impair the value of the leased premises." Cruz Mgt. Co. v. Thomas, 417 Mass. 782, 789 (1994). The covenant thus protects a tenant against a disturbance of his right to possess or use property. There can be no recovery for a breach of the covenant of quiet enjoyment where, as here, the plaintiff is not in possession of the premises at the time of the act or omission.

In his brief, Scott persisted in the position that because he had recently vacated the property, there was a "close temporal proximity" between the right of quiet enjoyment giving rise to statutory damages and Keough's offending acts. It is definitionally impossible, and therefore clearly erroneous, to posit that the right of quiet enjoyment includes vacated premises, however recently vacated. Because the motion judge would have been aware of Scott's acknowledgment that he was no longer in possession of the premises, see n.1, supra, it was not error to dismiss the quiet enjoyment cause of action. [Note 4]

Unfair debt collection/G.L. c. 93A claim. General Laws c. 93, § 49 prohibits creditors of natural persons in Massachusetts from collecting or attempting to collect a debt in an unfair, deceptive, or unreasonable manner. The statute further provides that the collection or attempt to collect shall be deemed unfair, deceptive, or unreasonable if:

"(a) The creditor communicates, threatens to communicate, or implies the fact of such debt or alleged debt to a person other than the person who might reasonably be expected to be liable therefor.... For the purposes of this paragraph, the use of language on envelopes indicating that the communication relates to the collection of a debt shall be deemed a communication of such debt or alleged debt."

The last paragraph of G.L. c. 93, § 49 provides that the "[f]ailure to comply with the provisions of this section shall constitute an unfair or deceptive act or practice under the provisions of chapter ninety-three A." General Laws c. 93A, § 2 declares such acts as unlawful. General Laws c. 93A, § 9 provides a right of action to any person not involved in trade or commerce "who has been injured by" any method, act, or practice declared unlawful by G.L. c. 93A, § 2. In Hershenow v. Enterprise Rent-A-Car Co. of Boston, Inc., 445 Mass. 790 (2006), the Supreme Judicial Court held that a causal connection is required between the deceptive act and an adverse consequence or loss. Id. at 797. Notably, the injury must be a separate, identifiable harm that is distinct from the unfair or deceptive conduct itself. Tyler v. Michaels Stores, Inc., 464 Mass. 492, 503 (2013).

Keough misguidedly based his motion to dismiss the G.L. c. 93A claim on Scott's failure to allege a "loss of money or property" resulting from the offending acts. The statute (and more particularly § 9) at one time required the plaintiff to have suffered a "loss of money or property." Chapter 406 of the Acts of 1979 (approved July 20, 1979) amended G.L. c. 93A, § 9 by broadening recovery to cases in which there was a showing of an "injury," rather than one of a "loss of money or property." This amendment effectively changed an inadequacy in the law highlighted by the holding

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in Baldassari v. Public Fin. Trust, 369 Mass. 33 (1975), on which Keough relied in his motion, where the plaintiff, who had suffered from the harassing debt collection practices of the defendant, was held not to be able to recover damages because of his failure to show "loss of money or property." We therefore must determine whether there was another basis for the motion judge to have allowed the motion.

The "term 'injury' has two components ... [in that] it denotes 'an invasion of a legally protected interest,' [but] [t]o be actionable ..., that invasion must cause a loss (either economic or noneconomic) to the holder of the legally protected interest" (citations omitted). Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007). See Bellermann v. Fitchburg Gas and Elec. Light Co., 470 Mass. 43, 53 n.9 (2014); Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 175 (2013). Injuries, in the context of claims under G.L. c. 93 A, may be noneconomic, and may include personal injury, measurable emotional distress, or an invasion of a consumer's personal privacy, at least if it causes injury or harm worth more than a penny. O'Hara v. Diageo-Guinness, USA, Inc., 306 F. Supp. 3d. 441, 453 n.1 (D. Mass. 2018); Ferreira v. Sterling Jewelers, Inc., 130 F. Supp. 3d 471, 478 (D. Mass. 2015). See also Tyler, supra at 504 n.20; Maillet v. ATF-Davidson Co., Inc., 407 Mass. 185, 192 (1990) (personal injury is cognizable under G.L. c. 93A). Nominal damages of twenty-five dollars are awarded if actual damages are less than that amount. G.L. c. 93A, § 9(3).

At the pleading stage, the complaint does not need detailed factual allegations, but a plaintiff has the obligation to provide the grounds of his entitlement to relief, which requires more than legal labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Supreme Judicial Court adopted the Twombly standard for the sufficiency of pleadings where they are challenged by a Mass. R. Civ. P. 12(b)(6) motion in Iannacchino v. Ford Motor Co., 451 Mass. 623 (2008). A party asserting a claim for relief under G.L. c. 93A must set forth in the complaint sufficient allegations of actions that violated the statute and state how these actions have caused harm. It is not enough to plead a conclusion without alleging some factual allegations plausibly (rather than merely conceivably) suggesting an entitlement to relief. Iannacchino, supra at 635-636.

In the operative complaint, Scott set forth the facts surrounding the envelopes, and then in a section entitled, "Statement of Claims," he alleged that the mailing of each constituted a violation of G.L. c. 93, § 49(a) and, therefore, of G.L. c. 93A. The sufficiency of the allegations regarding Keough's acts is plain: those acts constitute clear violations of G.L. c. 93, § 49(a).

Fatal to Scott's claim, however, is that Scott did not plausibly allege an actual "injury" with any specificity (or even in any conclusory way) to support any of his causes of action; [Note 5] nor did he identify a separate harm distinct from the unfair or deceptive conduct itself. Scott alleged (and argued on appeal) only one theory of damages -- the statutory right to recovery under G.L. c. 186, § 14, which was inapplicable to him. Scott's only alleged damages, then, were those allowed by statute for a claim that was properly dismissed. Because there were no other allegations of "injury" or damage, he failed to state his other causes of action plausibly or sufficiently. There was no error in the dismissal; judgment affirmed.


[Note 1] While this fact does not appear in the complaint, it does appear in Keough's motion to dismiss and Scott's opposition to that motion. Scott mentioned it in his brief and acknowledged it at oral argument as well. We are cognizant of our duty to review the facts as elaborated in the operative pleading, but note that this fact was (and is) not in dispute and would have been known to the motion judge.

[Note 2] It was incumbent on Scott to ensure that his motion to amend was acted on and that the record was clear.

[Note 3] The motion to dismiss the amended complaint did not include mention of the new invasion of privacy cause of action, but did include mention of the other new causes of action.

[Note 4] "If [on a Rule 12(b)(6) motion] matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Mass. R. Civ. P. 12.

[Note 5] We note in passing that his proposed amended complaint suffers the same deficiencies.