Opinion
21-P-896
12-27-2022
HEBREW SENIOR LIFE, INC.[1] v. SANDY NOVACK.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Hebrew Senior Life, Inc. ("HSL") filed a summary process action against its tenant Sandy Novack, alleging nonpayment of rent. Novack filed counterclaims alleging violations of the security deposit statute, breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, retaliation, discrimination, and violation of G. L. c. 93A. A District Court judge allowed HSL's motions for summary judgment on the counterclaims relating to the security deposit and partially on the counterclaim alleging breach of the covenant of quiet enjoyment. After the same judge reserved the c. 93A counterclaim for himself at trial, a jury returned a verdict for HSL on the remaining counterclaims and on HSL's claims for possession and unpaid rent. Although the judge did not make findings of fact or rulings of law on the c. 93A counterclaim, judgment entered resolving the case in its entirety in favor of HSL.
Novack appealed to the Appellate Division of the District Court. The Appellate Division vacated the judgment on the c. 93A counterclaim only and remanded for further proceedings based on the trial judge's failure to make findings and rulings. HSL then moved on remand for summary judgment on the c. 93A counterclaim, arguing that HSL is a nonprofit organization not engaged in "trade or commerce" as defined by the statute. A different judge, the trial judge having retired, allowed the motion, and on Novack's appeal the Appellate Division affirmed.
Novack's appeal from the final decision of the Appellate Division is now before us. She raises a multitude of arguments, including challenges to the summary judgment rulings and to various evidentiary and procedural rulings made by the trial judge. We affirm.
Background.
HSL is a nonprofit organization that owns and operates apartments for the elderly and disabled at 1550 Beacon Street in Brookline. Novack rented and resided in a rent-subsidized apartment at 1550 Beacon Street from approximately May 2008 to October 2017. Until January 2015 Novack paid her rent in full every month.
During her tenancy Novack made a series of complaints to HSL about building conditions and incidents involving other tenants that she claimed were detrimental to her health and existing medical conditions. For instance, Novack complained to HSL that she smelled cigarette smoke coming from a neighbor's apartment and that the neighbor left her door open and used air fresheners, triggering Novack's medical symptoms. Additionally, Novack complained about another neighbor's service dog, saying it barked, wandered around the building, and made a mess in the hallway.
In late 2014 HSL painted and installed new carpeting on two floors of Novack's building. Novack complained that the resulting vapors and odors were triggering her medical symptoms, leaving her unable to use certain parts of the building. She requested that HSL improve the ventilation and provide her with documents detailing the technical specifications of the carpet. In January 2015, unsatisfied with HSL's response, Novack gave notice that she would begin withholding her rent because of her inability to use certain common areas.
It appears that Novack paid the withheld rent to her attorney to be held in an escrow account.
In January 2016 HSL served Novack with a fourteen-day notice to quit for nonpayment of rent. This was followed by a summons and complaint commencing this action in February 2016.
Discussion.
On appeal Novack challenges (1) the grant of partial summary judgment on her counterclaim for breach of the covenant of quiet enjoyment; (2) the grant of summary judgment on her counterclaims alleging violations of the security deposit statute; (3) the grant of summary judgment on her G. L. c. 93A counterclaim; (4) the trial judge's denial of her request for a jury instruction that HSL's actions gave rise to a presumption of retaliation; (5) the judge's denial of her motion to amend her counterclaims to conform to the evidence; and (6) several evidentiary rulings. We review the summary judgment decisions de novo. See Layes v. RHP Properties, Inc., 95 Mass.App.Ct. 804, 809 (2019). We review the remaining issues for abuse of discretion. See N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013) (evidentiary rulings); Pardo v. General Hosp. Corp., 446 Mass. 1, 20 (2006) (jury instructions); Larkin v. Dedham Med. Assocs., Inc., 93 Mass.App.Ct. 661, 665 (2018) (motions to amend).
1. Breach of covenant of quiet enjoyment.
As part of the factual basis of this counterclaim, Novack alleged that another tenant physically assaulted her in September 2013; that she experienced continued harassment by the other tenant, which she reported to HSL; and that HSL failed to protect her from the continued harassment. Because Novack would have the burden of proving this claim at trial, HSL could prevail on summary judgment by showing that Novack "ha[d] no reasonable expectation of proving an essential element of" the claim. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). We conclude that HSL has made this showing.
As Novack states in her brief, her claim is not that HSL had a duty to protect her from the assault but that HSL failed to "take adequate steps to deal with the assailant's ongoing interactions with Novack, after the initial assault."
In support of its motion, HSL submitted affidavits from its Director of Property Management and its Resident Services Coordinator at 1550 Beacon Street, which stated that Novack did not report any subsequent assaults or batteries by the other tenant and that HSL had no records of any further reports. Novack offered no evidence disputing these assertions. The only document she appears to have submitted is an unsworn statement describing the encounters she allegedly had with the other tenant after the initial assault. Novack does not assert in that statement, however, that she reported any of the encounters to HSL. See Al-Ziab v. Mourgis, 424 Mass. 847, 851 (1997) (to establish breach of covenant of quiet enjoyment, tenant must prove that landlord had "notice of or reason to know" of condition interfering with tenant's quiet enjoyment). Accord Goreham v. Martins, 485 Mass. 54, 67 (2020). Moreover, the encounters that Novack describes do not plausibly "rise to the level of a serious interference that impairs 'the character and value of the' leased premises." Goreham, supra at 68, quoting Doe v. New Bedford Hous. Auth., 417 Mass. 273, 285 (1994).Thus, even viewing the record in the light most favorable to Novack, we conclude that she has failed to "set forth specific facts showing that there is a genuine issue for trial." Bourque v. Cape Southport Assocs., LLC, 60 Mass.App.Ct. 271, 277 (2004).
This unsworn statement appears in the record appendix unattached to any other document and with no indication of the context in which it was submitted. We will assume that the statement is properly part of the summary judgment record.
Novack describes the encounters as follows: the other tenant walked toward Novack in the lobby trying to talk to her; on two occasions Novack was in the computer room and heard the other tenant's voice; the other tenant was in the middle of the sidewalk in front of a neighboring building, requiring Novack to cross the street to avoid him; the other tenant did not exit an elevator that Novack wanted to enter; and the other tenant walked by Novack while she was waiting for a physical therapy appointment.
Novack also argues that HSL's motion was procedurally improper under the Uniform Summary Process Rules because HSL did not file a separate request for leave to be heard, but instead incorporated the request within the motion itself. Even assuming that Novack preserved this argument, she fails to explain how she was prejudiced.
2. Security deposit statute.
Novack raised two counterclaims under the security deposit statute, G. L. c. 186, § 15B. She first claimed that HSL failed to provide a receipt identifying the relevant bank and account information within thirty days of receiving her security deposit, as required by G. L. c. 186, § 15B (3) (a). Even assuming that HSL violated this statute, however, Novack has no currently available remedy. The statutory remedy is the "immediate return of the security deposit," G. L. c. 186, § 15B (3) (a), and it is undisputed that HSL has now returned Novack's security deposit to her. This claim is therefore moot. See Lynn v. Murrell, 489 Mass. 579, 582-583 (2022).
The record reflects that HSL provided the receipt on June 20, 2008, thirty-six days after Novack signed the occupancy agreement. It is unclear when HSL received the security deposit.
To the extent Novack argues that G. L. c. 186, § 15B (7) entitles her to damages equal to three times the amount of her security deposit, her argument conflicts with the plain language of the statute. Section 15B (7) authorizes treble damages only for violations of "clauses (a), (d), or (e) of subsection 6," which concern a landlord's failure to place a security deposit in an interest-bearing account, failure to transfer a security deposit to a successor in interest, and failure to return a security deposit within thirty days after termination of a tenancy. See G. L. c. 186, § 15B (6). Thus, even if HSL failed to furnish a timely receipt under G. L. c. 186, § 15B (3) (a), Novack would not be entitled to treble damages.
Castenholz v. Caira, 21 Mass.App.Ct. 758, 763-764 (1986), which Novack relied on in her brief and again at oral argument, concerned a landlord's failure to place a security deposit in an interest-bearing account.
Novack's second counterclaim was that HSL violated G. L. c. 186, § 15B (3) (b), by failing to annually pay her the interest received on her security deposit. But that statute gives the landlord the option of either paying the interest at the end of each year of the tenancy or giving "notification that the tenant may deduct the interest from the tenant's next rental payment." G. L. c. 186, § 15B (3) (b). The statute also provides that, if the tenant does not receive such payment or notification within thirty days from the end of each year of the tenancy, "the tenant may deduct from his [or her] rent payment the interest due." Id. Novack offered no evidence that HSL prevented her from taking a deduction; in fact, HSL stated in a letter that it was her "right" to do so. As the statute does not provide for any other remedy, summary judgment was proper.
3. G. L. c. 93A.
"In most circumstances, a charitable institution will not be engaged in trade or commerce when it undertakes activities in furtherance of its core mission." Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 26, cert. denied, 522 U.S. 1015 (1997). An organization's status as charitable is not, however, "dispositive" of whether c. 93A applies. Planned Parenthood Fed'n of Am., Inc. v. Problem Pregnancy of Worcester, Inc., 398 Mass. 480, 492-493 (1986). The pertinent inquiry is whether the organization's activities arose in a "business context." Linkage Corp., supra at 24.
Here, summary judgment was proper because HSL was not acting in a "business context" in its dealings with Novack. It is undisputed that HSL is a nonprofit, charitable organization, offering services to the elderly and disabled pursuant to its mission statement, which provides:
"In the spirit of the Fifth Commandment, as illuminated by the traditions of the Jewish people, our mission is to honor our elders, by respecting and promoting their independence, spiritual vigor, dignity and choice, and by recognizing that they are a resource to be cherished. As part of our mission, we accept special responsibility for the most vulnerable and underserved members of our community who are most dependent on our care."
We are unpersuaded by Novack's argument that HSL's renting of an apartment to her did not relate to this core mission. The undisputed evidence in the record shows that HSL operates its rental units -- sixty percent of which are deemed subsidized or affordable -- in furtherance of its "holistic residential living approach for senior citizens and young adults with disabilities." The services and programs that HSL provides to its residents under this "supportive housing model" include coaching, health care services, fitness, home care, dining, therapy house calls, spiritual care, social services, depression care management, multi-generational support, and community life. These undisputed facts establish that HSL was not acting in a business context when it rented an apartment to Novack. See All Seasons Servs., Inc. v. Commissioner of Health & Hosps. of Boston, 416 Mass. 269, 271 (1993) (charitable hospital did not act in business context by entering into food-services contract because "[c]ontracting for food services [was] merely incidental to the hospital's primary function of providing medical services").
Furthermore, even were HSL engaged in trade or commerce, the c. 93A counterclaim was correctly dismissed for another reason: it is derivative of the other counterclaims, all of which were resolved in favor of HSL. Because we affirm the judgment for HSL on the other counterclaims, the c. 93A counterclaim fails as a matter of law. See Flemming v. Greystar Mgt. Servs., L.P., 100 Mass.App.Ct. 469, 475 (2021).
4. Jury instruction.
Novack requested an instruction that a presumption of retaliation under G. L. c. 186, § 18, applied to her retaliation counterclaim. That statute provides that "[t]he receipt of any notice of termination of tenancy, except for nonpayment of rent, . . . within six months after the tenant [has engaged in a protected activity] shall create a rebuttable presumption" of retaliation (emphasis added). G. L. c. 186, § 18. Because HSL's notice to quit was based on nonpayment of rent, the statutory language supports the judge's conclusion that the presumption is not applicable. Moreover, to the extent Novack suggests that she is still entitled to the presumption because she was lawfully withholding her rent and paying it into escrow -- an issue we do not decide -- she did not raise any such argument to the judge and has thus waived it.
5. Motion to amend.
After the close of evidence, Novack filed a motion to amend her pleading to add a counterclaim for breach of contract, which the trial judge denied. Novack argues that this was error because HSL impliedly consented to the amendment by introducing Novack's lease in evidence and referring to it during the trial. See Mass. R. Civ. P. 15 (b), 365 Mass. 761 (1974) (allowing amendment of pleadings to conform to the evidence "[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties"). But Novack points to nothing in the record showing that HSL "knew the evidence bearing on the unpleaded issue [breach of contract] was in fact aimed at that issue and not some other issue the case involved." Jensen v. Daniels, 57 Mass.App.Ct. 811, 816 (2003). We therefore see no abuse of discretion in the judge's denial of leave to amend.
6. Admission of evidence allegedly not produced during discovery.
Novack next claims error in the admission of evidence related to HSL's enforcement of its building policies. Although Novack asserts that HSL refused to produce this evidence during discovery, she fails to identify any specific piece of evidence that HSL did not provide her. She also fails to point to any objection that she raised at trial. This argument is therefore waived. See Maroney v. Planning Bd. of Haverhill, 97 Mass.App.Ct. 678, 683 n.8 (2020) (arguments not adequately developed on appeal are waived).
7. Admission of "Yardi" records.
Novack objected when HSL asked a witness to read in evidence two entries from HSL's management software system, called the "Yardi" system. When HSL countered that the entries were admissible as business records, the trial judge overruled the objection. Novack argues that this was error warranting a new trial.
For evidence to be admissible under the business records exception to the hearsay rule, the judge must find that the record was "made in good faith," "in the regular course of business," and "before the action began," and that it was "the regular course of business to make the record at or about the time of the transaction or occurrences recorded." Beal Bank, SSB v. Eurich, 444 Mass. 813, 815 (2005). Additionally, hearsay statements within a business record are only admissible if each statement falls within an exception to the hearsay rule. See Wingate v. Emery Air Freight Corp., 385 Mass. 402, 406 (1982).
The first entry at issue, created in April 2015, was properly admitted under the business records exception. The entry predated the litigation, and HSL's property manager, Sophia Powell, testified that employees regularly make entries into the Yardi system in the ordinary course of business to keep track of day-to-day events. Furthermore, most of the statements within the entry -- which describe a voicemail that Novack left about a neighbor's service dog and a later conversation that Novack had with the neighbor and Powell about the dog -- were admissible as statements of a party-opponent. See Federico v. Ford Motor Co., 67 Mass.App.Ct. 454, 460-461 (2006). The other statements in the entry were not offered for their truth, so they were not hearsay.
The other entry was created in March 2016, two weeks after the litigation began, and was therefore not admissible as a business record. See Beal Bank, SSB, 444 Mass. at 815. But Novack does not address the content of the entry or explain how she was prejudiced by its admission. She has thus waived any argument that the error entitles her to a new trial. See Maroney, 97 Mass.App.Ct. at 683 n.8.
The March 2016 entry describes a conversation between Powell and Novack's neighbor Rita, during which Rita made statements refuting Novack's complaints of odors and music coming from Rita's apartment. The Appellate Division concluded that the admission of this evidence was not prejudicial because, while Rita's statements "may have cast Novack as a cranky neighbor," this was offset by the fact that the jury heard Novack and another witness "testify to the very issues identified in the disputed Yardi entry" and so the jury were "in an excellent position to determine whether Novack's complaints were justified or not." Novack does not claim any error in this reasoning.
8. Exclusion of e-mails.
The trial judge excluded, on relevancy grounds, e-mails between Novack and HSL dating back to 2011. Novack argues that the e-mails were admissible because they showed that she was a good tenant who contributed to the residential community and that HSL's positive view of her changed once she began making complaints. Novack does not explain, however, how her reputation as a good neighbor prior to the events in question was relevant to any disputed issue in the case. We see no abuse of discretion.
9. Preclusion of expert testimony.
Finally, Novack argues that the trial judge erred in precluding testimony from two experts. The judge precluded the first expert from testifying altogether because Novack disclosed him as a witness just nine days before trial. As the judge noted, the case had been pending for "months," and Novack was aware that her claims involved "scientific issues." This was within the judge's discretion. See Nally v. Volkswagen of America, Inc., 405 Mass. 191, 197 (1989) ("Trial judges have broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial" [quotations and citation omitted]).
Novack also argues that she should have been allowed to take the expert's deposition on remand from the Appellate Division. But the Appellate Division remanded only the c. 93A counterclaim, which was then resolved on the basis that HSL was not engaged in trade or commerce. Thus, the expert's testimony would not have had any impact on the outcome.
With respect to the second expert, who was one of Novack's treating physicians, the trial judge excluded his answer to a question about whether the new carpet in the apartment building released hazardous chemicals, finding that the expert was not qualified to testify on that topic. This too was within the judge's discretion. Novack admitted that the expert had not seen or analyzed the carpet, and so the judge properly determined that the expert had no basis to opine on whether the carpet was the cause of Novack's medical conditions. See Reckis v. Johnson & Johnson, 471 Mass. 272, 292 (2015), quoting Commonwealth v. Frangipane, 433 Mass. 527, 533 (2001) ("trial judge has wide discretion to qualify an expert witness").
Novack's passing suggestion that the trial judge erred in excluding parts of the expert's deposition testimony is unsupported by any reasoned argument and is therefore waived. See Maroney, 97 Mass.App.Ct. at 683 n.8.
We disagree with Novack's contention that the judge held the parties to different standards by allowing Powell, a lay witness, to opine about the toxicity of the carpet. Powell offered no such opinion but instead was asked about her understanding of a statement from the carpet manufacturer that the carpet "does not release or otherwise result in exposure to a hazardous chemical under normal conditions of use." Powell replied that she understood the statement to mean that "under normal conditions, . . . [the carpet] doesn't emit any . . . odors or cause any hazardous [sic]." This did not constitute an expert opinion as to whether the carpet actually emitted hazardous chemicals. And each time Novack objected to questions that might have called for such an opinion, the judge sustained the objection. Again, we see no abuse of discretion.,
To the extent we have not addressed any of Novack's arguments, we have considered them and see no grounds warranting relief.
HSL's request for attorney's fees and costs is denied.
Decision and order of Appellate Division of the District Court affirmed.
The panelists are listed in order of seniority.