KENNETH F. KAMES and EDYTHE I. KAMES vs. HAROLD A. THERAN, DONALD G. PAIGE and EUGENE LYNE, TRUSTEES OF THE CABOT ESTATE CONDOMINIUM TRUST.

In Kames et al v. Shulman, Trustee et al, 30 Mass. App. Ct. 1111 (1991) the Appeals Court in a memorandum and order under Rule 1:28 affirmed my judgment invalidating an "assignment" by condominium trustees of a storage area, part of the condominium's common areas, to and for the exclusive use of a unit owner. The motion for summary judgment which I allowed related only to Count I of the complaint of which there were five counts. The plaintiff now presses only Count III in which they allege damages from a nuisance created by the defendant Harold A. Theran. The dispute arises from the conversion by Mr. Theran of a portion of the common areas at Cabot Estate Condominium denominated storage area on the condominium plans to living quarters for personal employees.

A trial was held at the Land Court on January 28, 1991 at which a stenographer was appointed to record and transcribe the testimony. The only witnesses for the plaintiffs were the plaintiffs themselves, Kenneth F. Kames and Edythe I. Kames. The defendants called Robert F. Egan, a former property manager and sales coordinator who also lived in the same building as the plaintiffs during a portion of the time in question and Stuart Masure, both a salesman and later a property manager at the condominium and the brother-inlaw of the defendant. There were 17 exhibits introduced into evidence of which the last had multiple parts. All exhibits are incorporated herein for the purpose of any appeal. On all the evidence I find and rule as follows:

1. The plaintiffs, as Buyers, entered into a purchase and sale agreement dated April 3, 1986 with Cabot Estate Development Company, covering Unit D-304 in Building No. D at the condominium. It provided that no change or modification in the master deed, the declaration of trust, the form of unit deed and other pertinent documents "shall materially alter the size, layout, location or features of the unit above specified, or change the unit percentage set forth above for said unit, . . ." with exceptions not here material (Exhibit No. 6).

2. The condominium unit deed from Harold A. Theran and William Hay, Trustees of Perkins Realty Trust to Kenneth F. Kames and Edythe I. Kames, husband and wife, as tenants by the entirety is dated July 8, 1986 and recorded with Suffolk Deeds in Book 12646, Page 184 (Exhibit No. 1).

3. The HVAC system at the condominium required repair in 1987, and in connection with this work a hole was made in the side of the building which led into the area in question. The so-called storage area was being used as a construction office across the hall from the plaintiffs' unit at this time in 1987. After the repairs were completed the cement area faced with bricks which covered the HVAC unit had additional rows of brick added, a railing placed around it and French doors inserted where the opening in the wall for repairs had been made. The former storage area then was converted into a one bedroom apartment.

4. The door into the storage area, for whatever reason, continually made a noise when it was shut, and this was audible not only to the plaintiffs but was heard by Mr. Egan as well who lived during part of this time in the unit immediately below that of Mr. and Mrs. Kames.

5. The plaintiffs had intentionally selected the unit which they purchased because it was located in a corner of the building and was adjacent to no other unit. When the adjoining storage area was converted into a living unit, there was a common wall between the two, and noises emanating from the newly created apartment were audible in the Kames' unit, particularly in the bedroom. The top of the HVAC area was made into a terrace. The railings were added because of requirements of the building code, and the French doors afforded access to the occupant of the new unit. The edge of the terrace was only a few feet from one of the windows in the master bedroom of the Kames' unit and provided a continual threat to their privacy.

6. The plaintiffs in negotiating their purchase and sale agreement made it clear that they desired to be isolated from other units, in part because Mr. Kames traveled a good percentage of his time for the Gillette Company, and Mrs. Kames was home alone.

7. The construction noises after the plaintiffs' occupancy began early in the morning and continued usually to 6:00 P.M. and sometimes as late as 8:00 or 9:00 P.M. The loudest part of the construction work, however, arose from the HVAC repairs and not from the conversion of the apartment although there was no definitive guide in the evidence as to how to allocate the construction activities to the work done in the area. The work which was done for the two operations was completed by November of 1987.

8. The first occupant of the new apartment was Scott Fumicello, a personal employee of Mr. Theran who cooked for him both at his business and at home. [Note 1] Mr. Fumicello lived in the apartment for five to six months, and while he was in residence there was noise from his usual household activities, the banging of pots and pans, the tinkling of glassware, the playing of radio and television from approximately 7:30 A.M. in the morning to 6:00 P.M. The principal complaint about his activities was the banging of the door which was due at least in part to some defect therein.

9. Mr. Fumicello's tenure was followed in June of 1988 by that of Hugh Courtney and Sue Harrison who worked for either Mr. Theran or his mother who also is a resident of the building. They used the terrace during the summer months for parties, and on occasion they and their guests would be on the terrace as late as 2:00 A.M. just outside the bedroom window of the plaintiffs. Their activities usually ceased between 11:00 P.M. and midnight. They frequently in season cooked their meals on the terrace on a grill, and if the HVAC system was out of order and consequently the windows open, the smoke permeated the Kames' living unit. The noise level increased significantly with the occupancy of the couple, but they were the same type of noises made by Mr. Fumicello. In addition they also were "babysitting" a dog who barked each time the door to the Kames' unit was open or shut. Eventually Mr. Theran ordered that the dog must go, and the dog vacated the premises.

10. The couple frequently sat and drank on the terrace, and their noises, the smoke from their barbecue grill, the dog and the door noises all disturbed the plaintiffs' enjoyment of their home. When her husband was not home, Mrs. Kames was very frightened by the activities of these neighbors, although there is good security at Cabot Estates with a guardhouse where she could have complained about any fears she had. The couple vacated the premises after the Appeals Court refused to stay the restraining order entered by this Court. Accordingly since April of 1989 no one has been living in the apartment.

11. The plaintiffs submitted as an element of damages attorneys' statements for attorneys' fees which they have incurred during the course of this litigation. There was no other evidence submitted as to damages.

The Court has already restrained the defendant from the use of the storage area for living quarters and has ordered that the area be restored to its original condition. The question now arises as to whether the nuisance which the defendant maintained by the conversion of the space is compensable. The plaintiffs suffered an invasion of privacy from the very close proximity of the terrace to their bedroom. They also endured the signs of life which may be the usual incidents of apartment living, but for the absence of which they had bargained. However, there is no evidence that they suffered any physical injury from the action of the defendants nor indeed is there evidence that the conduct impelled them to seek the advice of a psychiatrist or physician or to take certain medications.

The general Massachusetts rule is set forth at length in Payton v. Abbott Labs, 386 Mass. 540 , 547 (1982). In that decision Justice Lynch reviewed the history of recovery in this field. He pointed out that claims for emotional distress have troubled courts for many years, and that there is general agreement that recovery for emotional distress, negligently caused, is not allowed absent proof of physical harm. That is the Massachusetts rule. There are exceptions to it, however, and recovery has been allowed when emotional distress has been intentionally or recklessly inflicted. The conduct in the cases where there has been such recovery, Simon v. Solomon, 385 Mass. 91 , 95 (1982), Agis v. Howard Johnson Co., 371 Mass. 140 (1976) and George v. Jordan Marsh Co., 359 Mass. 244 (1971), was more outrageous and reckless than that of the defendants here. It is true that the conversion of the common area was done intentionally by the defendant Theran, but his conduct fell short of the four pronged test set forth in Agis, enunciated in Payton. This required proof that

(1) the defendant intended to inflict emotional distress, or knew or should have known that emotional distress was the likely result of his conduct, but also (2) the defendant's conduct was extreme and outrageous, beyond all possible bounds of decency, and utterly intolerable in a civilized community, (3) the actions of the defendant were the cause of the plaintiff's distress, and (4) the emotional distress suffered by the plaintiff was severe and of such a nature that no reasonable person could be expected to endure it.

Payton at 555, summarizing Agis at 145. The activities of Theran's employees which in effect constituted elements of normal living were not of such an egregious nature that the change of the storage area to living quarters comes within the rules set forth in Payton. Well before the Payton case the Court had allowed damages for distress and discomfort in Fenton v. Quaboag Country Club. Inc., 353 Mass. 534 (1968). In that decision it was held that compensation during the period of the defendants' activities was recoverable for the decrease in the fair rental value of the plaintiffs' property but only while the injury continued. Here the period of time involved is a short period even if the period commences with the occupancy of the first Theran employee in November of 1987 and continues until April of 1989. The amount recoverable would not be large. In any event there was no evidence as to either the fair rental value during this time frame, of units similarly situated as the plaintiffs', nor of the amount by which the rental value was reduced by proximity of the defendant Theran's employees and lessees.

We turn now to the question of compensation for attorneys' fees. The Supreme Judicial Court has held in Harrison v. Textron. Inc., 367 Mass. 540 , 555 (1975) that "it long has been firmly established that counsel fees incurred in an action brought to redress a plaintiff's wrong may not be recovered (citations omitted)." In some respects the Harrison decision is similar also to this one although the mistreatment Harrison endured from Textron went through a longer period of time and was more vexatious. Indeed there are two other decisions of the Supreme Judicial Court relative to the Harrison dispute and a federal case as well. Nonetheless, the Supreme Judicial Court upheld the declination by the trial court judge of a jury instruction "that the plaintiffs could recover for their loss of comfort and well-being in addition to loss of rental value of their property during the continuance of the nuisance period. There was no evidence of physical injury or mental or emotional harm to the plaintiffs." This statement applies as well to the present case.

The plaintiffs also have filed a motion to recover attorney's fees pursuant to the provisions of G.L. c. 231, §6F. This motion should be marked up by counsel and argued by the parties after the submission of evidence relative to the costs and their reasonableness.

Judgment accordingly.