Opinion
No. 11–P–1931.
2013-03-22
Frederick McMILLAN & others v. Jerome L. BENSON, trustee & others.
By the Court (GRAHAM, GRAINGER & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from the dismissal of the remaining counts of a complaint first brought in 2009.
We do not repeat the history of the litigation, highlighted by a series of successful motions to dismiss other defendants (see McMillan v. Benson, 79 Mass.App.Ct. 1131 (2011)), which is set forth in detail in the motion judge's comprehensive memorandum of decision dated August 23, 2011, and from which the present appeal is taken.
We recite the facts, largely undisputed, in the light most favorable to the plaintiffs. See Eck v. Kellem, 51 Mass.App.Ct. 850, 851 (2001). On April 8, 2002, the plaintiffs entered into a written lease to operate a video rental store on premises owned by the defendants. Less than a year earlier, on September 20, 2001, an environmental consulting firm, EnviroTrac, sent a letter addressed to Stanley McNiff
stating that analysis it had performed on the leased premises revealed groundwater concentrations of the chemical solvents tetrachloroethylene (PCE) and trichloroethylene (TCE). These solvents related to the prior use of the leased premises as a dry cleaning operation. The EnviroTrac letter made no mention, nor any assessment of, air quality at the defendants' property. In November, 2002, the Department of Environmental Protection (DEP) issued a “notice of responsibility” to the defendants, directing them to engage a licensed site professional to evaluate the contamination. The defendants retained Ducharme & Wheeler, Inc. (Ducharme) in January, 2003, to assess the site and prepare a report for the DEP. In January, 2004, Ducharme completed its phase I report, in which it found high concentrations of chemical solvents in the groundwater, but stated that “[v]apors attributable to the release have not been identified within the site building.” In response, the DEP requested that the defendants perform indoor air sampling. Ducharme performed the air sampling tests in February, 2004, and concluded that “an imminent hazard did not exist” at the property. At the request of the DEP, Ducharme reconsidered its calculations and, on March 8, 2004, determined that the PCE concentrations in the air did in fact pose an “imminent hazard.” The DEP ordered the building evacuated the following day. The plaintiffs filed their claim seeking damages for personal injuries due to the air quality and business losses that they allege were incurred due to the evacuation of the building.
The plaintiffs alleged that McNiff was acting as the landlord's agent.
On appeal the plaintiffs assert error both in the dismissal of their claims and the judge's evidentiary rulings on which the dismissal was based.
The judge excluded evidence offered by the McMillans to show their business damages, emotional distress damages, and the extent of the environmental contamination. Given the lack of evidence, the judge subsequently granted the defendants' motion to dismiss all claims. We affirm.
The defendants styled their motions as “in limine to dismiss” the complaint, reflecting their argument that the evidence proffered by the plaintiffs was inadmissible and that, therefore, there was no justiciable controversy after elimination of that evidence from consideration. In substance the motions, and the judge's rulings thereon, are dismissals on summary judgment. We therefore review them in that familiar posture to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
We reserve any further recital of facts as they may relate to the issues.
Discussion. We consider the plaintiffs' claims in the same order as the motion judge. Breach of the lease/breach of the covenant of good faith and fair dealing. These claims require no further analysis than they have previously been afforded by the parties and the motion judge. The judge correctly determined that any damages for breach of the lease are limited by the contractual terms to an abatement of rent.
Tort claims. These claims are based on assertions of personal injury (depression, stress, post-traumatic stress disorder) and on losses to the video store business including lost profits and investment losses. The plaintiffs have proffered no evidence of personal physical or psychological harm other than that excluded by previous rulings.
Furthermore, they have advanced no basis on which to assert damages to the business as it is undisputed that the video business never realized a profit while it was on the premises. Accordingly, the judge did not err in determining that no genuine issue remained as to any fact material to the plaintiffs' claims in tort.
While the McMillans state in their brief that they are appealing the judge's decision to exclude evidence of business, emotional, and financial damages, they cite no legal authority to support any claim of error. As such, this contention fails to rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Intentional or negligent infliction of emotional distress. The individual plaintiffs have not identified any expert witness to provide evidence of harm resulting from a failure to report the existence of contaminated groundwater or from a failure to report the possibility of contaminated air.
This lack of evidence is fatal to a claim for negligent infliction of emotional distress even were we to assume that the defendants' failure to disclose their knowledge of water pollution can be deemed a negligent failure to disclose something they did not know, namely the existence of air pollution. See Sullivan v. Boston Gas Co., 414 Mass. 129, 132 (1993)(stating that to prove negligent infliction of emotional distress a plaintiff must show “physical harm manifested by objective symptomatology”); Rodriguez v. Cambridge Housing Authy., 443 Mass. 697, 702 (2005)(holding that in order to prove negligent infliction of emotional distress a plaintiff must provide “objective corroboration of the emotional distress alleged” and cannot rely solely on allegations of “mere upset, dismay, humiliation, grief and anger”).
It is undisputed that the plaintiffs were on the property with knowledge of the air contamination for no more than one day.
Even viewing, as we do, the evidence in the light most favorable to the plaintiffs, we conclude on this record that the judge correctly determined that the plaintiffs have not proffered evidence to support a claim that the defendants' conduct was “extreme and outrageous,” “beyond all possible bounds of decency,” and “utterly intolerable in a civilized community.” Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 466 (1997). The claim of intentional infliction of emotional distress was properly dismissed.
Negligent and intentional misrepresentation. Assuming for the purposes of summary judgment that the defendants
withheld material facts amounting to a misrepresentation, the facts allegedly withheld relate to groundwater contamination, not air contamination. The plaintiffs did not and, on this record, could not claim that they were induced to enter into the lease by misrepresentations relating to air quality.
The plaintiffs alleged that McNiff knew of the property's contamination, and that he withheld the information. For purposes of our analysis we accept the assertion of agency, although it was rejected by the motion judge. This does not, however, avail the plaintiffs.
Even were we to accept the questionable proposition, not asserted below, that water and air pollution are inextricably associated one with the other, it would not avail the plaintiffs. As noted above, the plaintiffs proffered no evidence of damages resulting from the defendant's representations of fact, and the claims of misrepresentation were properly dismissed. See International Totalizing Sys., Inc. v. PepsiCo, Inc., 29 Mass.App.Ct. 424, 431 (1990)(declaring that there must be damages in claim for intentional misrepresentation); Nota Constr. Corp. v. Keyes Assocs. Inc., 45 Mass.App.Ct. 15, 19–20 (1998)(stating that negligent misrepresentation requires evidence of pecuniary loss). Accordingly the judge was correct to dismiss the claims relating to misrepresentation.
As stated, the EnviroTrac report received by the defendant McNiff prior to the lease execution makes no mention of any problem related to air contamination.
Negligent and intentional maintenance of an unsafe condition. The plaintiffs' reliance on G.L. c. 186, § 19, is unavailing for several reasons. The statute, intended to require landlords to correct unsafe conditions reported to them in writing by a tenant, does not apply in circumstances that do not involve such notice, or even any knowledge, on the tenant's part. We note as well that notice of an air quality problem, once received by the landlord, was acted upon promptly—the tenants were evacuated within 24 hours—so that there is no evidence of a failure to “exercise reasonable care .”
Violation of G.L. c. 21E. The plaintiffs incurred no response costs, remediation costs, or other damages resulting from alleged violations of G.L. c. 21E by the defendants. Because G.L. c. 21E, § 5( a )(5)( iii ), limits recovery to those who can show “damage to his real or personal property incurred or suffered as a result of such release, ...” the judge did not err.
Counsel conceded during oral argument that the plaintiffs' claim under c. 21E was asserted solely in support of their claim that the defendants breached their duties as landlord and agreed that the plaintiffs are not entitled to recover damages under c. 21E in the circumstances presented here.
G.L. c. 93A.General Laws c. 93A, § 11, applicable to persons engaging in any trade or commerce, proscribes unfair or deceptive conduct. G.L. c. 93A, § 11. The plaintiff in a c. 93A action must demonstrate that there has been “a loss of money or property.” Schwanbeck v. Federal–Mogul Corp., 31 Mass.App.Ct. 390, 415 (1991). Under c. 93A “money means money, not time, and ... property means the kind of property that is purchased or leased, not such intangibles as a right to a sense of security, to peace of mind, or to personal liberty.” Halper v. Demeter, 34 Mass.App.Ct. 299, 303–304 (1993), quoting from Baldassari v. Public Fin. Trust, 369 Mass. 33, 45 (1975).
On this record, and accepting for purposes of summary judgment that the failure to reveal groundwater contamination rises to the level of unfair or deceptive conduct under the statute, the plaintiffs cannot demonstrate any further “loss of money or property” within the meaning of c. 93A, § 11, beyond the use of the premises, for which they have received an abatement of rent.
Judgment affirmed.