2020 Mass. App. Div. 167

June 16, 2020 - September 30, 2020

Appellate Division Northern District

Court Below: District Court, Malden Division

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

Philip R. Gindi for the plaintiff.

John C. Solomon for the defendant.

CRANE, J. The owner of a range with a gas oven whose igniter was allegedly defective appeals from summary judgment granted to the defendant that allegedly manufactured or designed the range. We affirm that ruling. The plaintiff also appeals from the failure to act on her motion to amend her complaint. We return that issue for further proceedings as described below.

1. Factual and procedural background. Plaintiff Rhoda Bianchi, a consumer, purchased the range with a gas oven in 2012. The defendant, Haier U.S. Appliance Solutions, Inc., d/b/a GE Appliances ("GE"), manufactured or designed the range, including the oven. The plaintiff made a call for service in 2018, complaining that the gas oven was not igniting when switched on resulting in an odor of gas followed by what she described as the sound of small explosions from the oven. According to the plaintiff, the condition occurred intermittently because the igniter mechanism was defective in its design or manufacture. She then brought this action, alleging that the defendant was negligent for defective design of the igniter, construction of the range with a defective igniter, and for placing the range with a defective igniter in the stream of commerce, knowing that it was defective. The plaintiff also asserts that the same acts that were allegedly negligent, as well as a breach of agreement with the defendant, constitute unfair or deceptive acts or practices that violate G.L. c. 93A. The plaintiff seeks damages for what she was charged for labor and parts for a service call and because GE refused to warrant that any defect in the igniter was cured.

The court conducted a hearing on defendant's motion for summary judgment on July 10, 2019. The plaintiff opposed the motion, arguing that discovery was not complete. The same judge who granted summary judgment had continued a hearing on the motion for summary judgment and ordered further discovery on April 30, 2019. On July 8, 2019, after hearing, the same judge denied further motions by the plaintiff that claimed that the defendant's supplemental discovery was inadequate. In response, at the hearing on the motion for summary judgment, the defendant argued that regardless of the status of discovery, the claims for negligence were barred by the economic loss rule and that the claim for violation of G.L. c. 93A could not be maintained unless the condition of the allegedly defective igniter violated some governmental standard. The court allowed the motion for summary judgment

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with the endorsement, "Motion allowed. See Iannicchino v. Ford, 451 Mass. 623, 633 (2008). Judgment to enter for defendant." Following a further hearing, the same motion judge denied the plaintiff's motion for reconsideration of the allowance of summary judgment. The court took no action on the plaintiff's motion for findings of fact, which was filed with the motion for reconsideration. It also took no action on a motion to amend the complaint to add a claim for breach of implied warranty of merchantability and negligent repair, the latter apparently arising from the work performed by technicians on September 13, 2018 and two other later dates.

On appeal, the plaintiff contends that it was error (1) to grant summary judgment against her because she is entitled to recover economic loss without physical injury for violation of G.L. c. 93A, and because discovery was not complete; (2) to fail to make findings of fact as requested; and (3) to fail to act on her motion to amend the complaint.

2. Summary judgment. a. Standard of review. Summary judgment shall be granted where there are no genuine issues as to any material fact and where the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56 (c); Casesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, "and [further] that the moving party is entitled to judgment as a matter of law." Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). See SCA Servs., Inc. v. Transportation Ins. Co., 419 Mass. 528, 531 (1995).

As in this case, when the moving party does not bear the burden of proof at trial, the moving party must either (1) submit affirmative evidence negating an essential element of the nonmoving party's claim; or (2) demonstrate that the nonmoving party's evidence is insufficient to establish an essential element of its claim. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 715-716 (1991). It is only when the moving party has met this initial burden that the burden shifts to the nonmoving party to defeat summary judgment by "set[ting] forth specific facts showing that there is a genuine issue for trial." Id. at 716, quoting Mass. R. Civ. P. 56(e). The nonmoving party "cannot rest on his or her pleadings and mere assertions of disputed facts." LaLonde v. Eissner, 405 Mass. 207, 209 (1989).

"In reviewing the grant of a motion for summary judgment, we conduct a de novo examination of the evidence in the summary judgment record . . . ." LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318 (2012).

b. Discussion. The undisputed facts are that the plaintiff purchased the range with gas oven in 2012. The defendant does not dispute that it designed or manufactured it. However, the defendant disputes that the igniter or any other part was defective. In September and October 2018, the plaintiff complained that her oven was not igniting when she switched it on, resulting in a strong odor of gas. The condition described by the plaintiff began in the summer of 2018 while she was attempting to start the oven. The first technician serviced the oven on September 13, 2018, and replaced the igniter. The plaintiff complained that the condition continued intermittently. A second technician serviced the oven for the same complaint and replaced some parts and ordered others. That technician returned when the ordered parts were delivered and replaced them. There is nothing in the record about what parts were replaced by him. There is also nothing in the record about whether the removed parts were preserved or examined by anyone with any expertise in the design or manufacture of an oven igniter.

The plaintiff does not claim that she suffered any personal injury or property damage as a result of this alleged defect other than $150 she paid for the service calls and any replacement parts. She claims damages because her oven is not useful to her since the oven fails to ignite intermittently, and she has no warranty that it will be free from defect in the future. The plaintiff has not asserted that the alleged defect in the design or manufacture of the oven igniter violated any governmental or industry standard. She has not provided any documentation or other evidence of any express warranty, written or oral.

The plaintiff argues that she is not barred from recovery under G.L. c. 93A, § 9, despite the lack of any accident related injury or manifest defect in the oven, citing language from Iannacchino v. Ford Motor Co., 451 Mass. 623, 625 (2008). The defendant responds that there was no error because the only damages the plaintiff seeks are an economic loss. The plaintiff may not recover these damages on her negligence claims because of the applicable statute of limitations. She is also prohibited from recovery on any claims for violation of G.L. c. 93A arising from any alleged breach of warranty because she has not provided any evidence that the design or manufacture of the oven igniter violated any government, industry, or engineering standard that made it defective.

The amount paid by the plaintiff for parts and labor to repair the oven is an economic loss. See Bay State-Spray & Provincetown S.S., Inc. v. Caterpillar Tractor Co., 404 Mass. 103, 109-110 (1989). The statute of limitations applicable to claims seeking recovery for economic loss for breach of warranty or negligence resulting only in damage to the product is four years from the date of sale. G.L. c. 106, § 2-725; Bay State-Spray & Provincetown S.S., Inc., supra. There is no dispute that this action was filed more than four years after the plaintiff bought the range and oven in 2012. Consequently, there was no error in granting summary judgment to the defendant on the negligence claims or any claims for violation of G.L. c. 93A derived from any alleged breach of warranty. G.L. c. 260, § 5A.

The plaintiff has not provided an opinion affidavit of any properly qualified expert that identifies any industry or engineering standard that the oven igniter failed to meet in support of her claim that the igniter was defective. A consumer claiming a breach of an implied warranty of merchantability because a product is defective has the burden to show that the product was defective when delivered because of its design or manufacture; that the defect caused damage or injury to the consumer; and that the consumer gave timely notice to the seller. Collins v. Sears, Roebuck & Co., 31 Mass. App. Ct. 961 (1992).

The plaintiff urges that there was evidence to support a conclusion that the igniter was defective. She contends that the defendant knew it was defective, based upon nothing more than seven consumer complaints about the same model oven out of over 66,000 it manufactured, without any other information about the circumstances of those complaints, together with plaintiff's counsel's affidavit that an unidentified appliance dealer told him the igniter was defective as well as reference to four reviews he found online from unidentified persons. [Note 2] This was not adequate to meet

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the plaintiff's burden to present evidence that the oven igniter was defective as is required to survive a motion for summary judgment for violation of G.L. c. 93A for breach of implied warranty. Kourouvacilis, supra.

Where a consumer has not suffered personal injury or property damage, the consumer must identify a legally required standard that the product was at least implicitly represented as meeting, but allegedly did not, in order to establish a violation of G.L. c. 93A for regulatory noncompliance. Iannacchino, supra 633. The plaintiff did not direct the court to any legally required standard that was breached or provide any affidavit from any expert who presented an opinion that the oven igniter was defective because it violated such a standard. Consequently, there was no error in granting summary judgment to the defendant on the claims for violation of G.L. c. 93A.

3. Continuance for further discovery. A party opposing summary judgment because it needs more opportunity to obtain discovery and develop facts to support its claims or defenses may submit an affidavit pursuant to Mass. R. Civ. P. 56(f). The previously described affidavit of counsel was the only one filed by counsel for the plaintiff. We also find no abuse of discretion in declining to continue the hearing on the motion for summary judgment where the plaintiff did not submit an affidavit that complies with Mass. R. Civ. P. 56(f). Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 401 (2003); Aronson v. Commonwealth, 401 Mass. 244, 255 (1987); Blake Bros. Corp. v. Roche, 12 Mass. App. Ct. 556, 561 (1981). It did not meet the requirements of Rule 56(f) to delay disposition of the defendant's motion for summary judgment where any discovery the plaintiff sought involved whether the igniter was defective and the motion for summary judgment involved the applicable statute of limitations and whether the design or manufacture of the igniter allegedly violated any government standard.

We also note that the motion judge postponed the original hearing on the motion for summary judgment for over two months to permit the defendant to comply with discovery ordered by the court. Days before the hearing on the motion for summary judgment, the motion judge heard and denied the plaintiff's motion for additional discovery. "While discovery orders are reviewable on appeal from entry of a final judgment, we do not interfere with the judge's exercise of discretion in the absence of a showing of prejudicial error resulting from an abuse of discretion." Solimene v. B. Grauel & Co., K.G., 399 Mass. 790, 799 (1987). We review the ruling on the motion for additional discovery for abuse of discretion and find none.

4. Request for findings. The plaintiff requested the motion judge make findings of fact in connection with her motion for reconsideration. We treat the absence of any findings by the motion judge as a denial of that motion. Gutierrez v. Massachusetts Bay Transp. Auth., 437 Mass. 396, 404 (2002). The plaintiff has not cited any rule or authority that requires a judge ruling on a motion for summary judgment to make findings. Rule 52(c) of the Mass. R. Civ. P., which requires trial judges to make findings of fact upon request, specifically states, "Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b)(2)." There was no error.

5. Motion to amend complaint. Again, we treat the absence of a ruling on the plaintiff's motion to amend the complaint as a denial of the motion. Gutierrez, supra. At oral argument, plaintiff's counsel asserted that the proposed amended complaint

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included a claim for negligent repair. [Note 3] The proposed amendment was to add counts for negligent repair of the range igniter and breach of the implied warranty of merchantability arising from the original sale and the replacement with parts that the plaintiff claimed were defective. The docket entries reflect that a motion to amend the complaint was filed on April 30, 2019. At the hearing on April 30, 2019, the parties agreed to have the motion to amend heard on July 10, 2019. During argument on the summary judgment motion on July 10, 2019, counsel alluded to an amendment to add a claim for negligent repair. The plaintiff raised the motion to amend the complaint at the hearing on the motion for summary judgment and in her current brief. The decision whether to grant a motion to amend is within the discretion of the judge, but leave should be granted unless there are good reasons for denying the motion. Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547, 549 (1987); Mancuso v. Kinchla, 60 Mass. App. Ct. 558, 572 (2004). [Note 4]

On the face of the record below, there was no error in refusing to allow the motion to add a claim for breach of the implied warranty of merchantability because it would have been futile. Mathis v. Massachusetts Elec. Co., 409 Mass. 256, 264 (1991). It would have been precluded by the applicable statute of limitations for the reasons stated above. However, the claims for negligent repair arose from the alleged conduct of the technicians in 2018 and 2019 and would not be precluded by any statute of limitations.

The plaintiff argued its motion to amend to include claims for negligent repairs at the same time as the motion for summary judgment, after the parties had agreed to continue hearing on it to that date. The motion judge did not act on this motion and gave no reason for doing so. "Still, the policy favoring free amendment is so strong that unless justification for a denial appears on the face of the record, a statement of reasons, or perhaps findings of fact, may be necessary in order to demonstrate adequate justification for a judge's action in denying a motion to amend . . . ." J.W. Smith & H.B. Zobel, Rules Practice § 15.3, at 267-268 (2d ed. 2006). See Mancuso, supra.

Consequently, we return this case for the trial court to rule on the motion to amend the complaint to add a claim for negligent repair and for any further proceedings.

Summary judgment for the defendant is affirmed, and this case is returned for further proceedings consistent with this opinion.


[Note 1] Doing business as GE Appliances.

[Note 2] Counsel's affidavit was not on personal knowledge and subject to being stricken, although no motion to do so was found in the record. See Billings v. GTFM, LLC, 449 Mass. 281, 295 (2007), citing Shapiro Equip. Corp. v. Morris & Son Constr. Corp., 369 Mass. 968 (1976).

[Note 3] Counsel did not mention any claim for breach of the warranty of merchantability at oral argument.

[Note 4] We allow the defendant's motion to refer in its brief to the plaintiff's complaint and the defendant's summary judgment motion, and we exercise our authority under Dist./Mun. Cts. R. A. D. A. 18 to refer to those documents as well as to the plaintiff's motion to amend the complaint and the proposed amended complaint. See Dist./Mun. Cts. R. A. D. A. 18(a) ("The fact that parts of the record are not included in the appendix shall not prevent the parties or the Appellate Division from relying on such parts, provided that the Appellate Division may decline to permit the parties to refer to portions of the record omitted from the appendix unless leave be granted prior to argument."). See also Worcester County Christian Communications, Inc. v. Board of Appeals of Spencer, 22 Mass. App. Ct. 83, 87 n.4 (1986) ("By reason of Mass. R. A. P. 18(a), . . . we are not bound by the [appellant's] failure to have included the application in the appendix. Because the [appellant's] failure does not reflect a total disregard for our procedural rules, we look to the application.").