Opinion
13-P-1463
11-25-2014
SWIMMING POOL CENTER, INC. v. LUCILLE C. CHARLAND, trustee.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Swimming Pool Center, Inc. (Center), a tenant under an expired commercial lease, has appealed from a portion of a Superior Court judge's grant of summary judgment on the Center's claims against its former landlord, defendant P&L Realty Trust (Trust), and the estate of Paul R. Charland, the late trustee of the Trust. After review of the pleadings, affidavits, and exhibits, we discern no reason to disturb the judge's rulings and, accordingly, affirm the judgment.
In 2010, the Trust property was transferred from the Trust to P&L Realty Trust II, also a defendant in this case.
The complaint, essentially a dispute between family members, was in four counts: (1) breach of quiet enjoyment; (2) retaliation by the landlord; (3) infliction of emotional distress; and (4) violation of G. L. c. 93A. The plaintiff has not appealed from so much of the judgment as dismissed count 3 of the complaint.
Background. We summarize the relevant undisputed facts that appear in the record. The late Paul R. Charland, the father of Roy Charland, was the founder and owner of the Center. The Trust held title to the property on which the Center was located (the premises). In or around 1995, Paul sold the Center to his two sons, Roy and Glen Charland. That same year, the Center signed a lease with the Trust to occupy the premises for three years. However, Paul's involvement with the Center did not end following his sale of the business. Indeed, he continued to be on the premises nearly every day from 7:00 A.M. to 4:00 P.M., and, as late as fiscal year 2007, was listed on the annual report as the secretary of the Center.
Roy Charland is the president of the Center and held that position during the relevant periods at issue in the complaint.
On or about September 8, 2007, and again on October 1, 2007, Paul was on the premises and engaged in a verbal altercation with Center employee Jonathan Vega, who, on October 29, 2007, filed a complaint for discrimination with the Massachusetts Commission Against Discrimination (MCAD) against Paul individually, and the Center. While the MCAD complaint was pending, Paul died. The MCAD later issued a finding of probable cause against both Paul and the Center. Vega then elected to file a complaint in the Superior Court naming the Center as the only defendant. That claim was resolved by settlement in April, 2011.
Following the Vega settlement, Roy sought reimbursement from his mother, Lucille Charland, who was trustee of the Trust and executrix of Paul's estate. She refused, and thereafter a dispute arose between the Center and the Trust regarding the Center's monthly rental payments. On May 1, 2011, in a written notice addressed to Roy, the Trust notified the Center that the Center's latest rental payment contained an unauthorized rent adjustment. Similar notices were sent by the Trust to the Center on June 1, 2011, and July 1, 2011. The July 1, 2011, letter notified the Center that "[t]his is your third and final notice regarding back rent owed by you [Roy], owner of the [Center], to your mother."
On January 4, 2012, the Trust served the Center with a notice to quit for unpaid rent. On February 10, 2012, the Center filed the current complaint. Ten days later, the Trust filed a summary process action against the Center in District Court seeking back rent owed and possession of the premises. Following trial, judgment was entered in favor of the Trust for possession and monetary damages. On June 1, 2012, the Center vacated the premises.
Discussion. On appeal, we review de novo the judge's decision to grant summary judgment, see HipSaver, Inc. v. Kiel, 464 Mass. 517, 522 (2013), viewing the evidence "in the light most favorable to the nonmoving party." Nunez v. Carrabba's Italian Grill, Inc., 448 Mass. 170, 174 (2007). In reaching our conclusion, we "may consider any ground supporting the judgment." District Attorney for the N. Dist. v. School Comm. of Wayland, 455 Mass. 561, 566 (2009).
1. Interference with quiet enjoyment. We find no merit in the plaintiff's claim that Paul breached the covenant of quiet enjoyment as a result of his altercation with Vega. Assuming, without deciding, that the Center, an at-will commercial tenant under an expired lease, had such a right, the plaintiff has presented no evidence that Paul was acting as a landlord at the time of the altercation. For the covenant to apply, Paul had to have acted in his capacity as landlord. See Manzaro v. McCann, 401 Mass. 880, 884 (1988); Rahman v. Federal Mgmt. Co., 23 Mass. App. Ct. 701, 705 (1987) ("[V]iolation of the covenant [of quiet enjoyment] connotes acts by the landlord . . . that substantially impair the character and value of the leased premises" [citations omitted]).
The plaintiff bears the burden of setting forth specific facts showing that Paul was acting in his capacity as landlord at the time of the altercation with Vega. It has presented no such facts; therefore summary judgment was entered properly on this claim.
2. Retaliation claim. We also reject the Center's claim that the Trust unlawfully retaliated against it by initiating a summary process action in the District Court. See Jablonski v. Casey, 64 Mass. App. Ct. 744, 748 (2005) ("[W]hen, as here, the eviction is based on nonpayment of rent, a finding of retaliation will not normally lie"). See also G. L. c. 239, § 2A, which codifies retaliation as a defense to a summary process action. Hence, the Center's stand-alone retaliation claim fails.
3. General Laws c. 93A claim. Finally, we agree with the motion judge's conclusion that, in the circumstances of this case, the Center's c. 93A claim, stemming from the Vega incident, fails. General Laws c. 93A, § 2, prohibits "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce" and does not cover actions that are mainly "private in nature." Riseman v. Orion Research Inc., 394 Mass. 311, 313 (1985). Given the nature of the relationship of the individual parties, the absence of a written lease between the nominal principal entities, and the intentional tort by Paul against a Hispanic employee of the Center, the judge properly characterized the underlying claims as personal in nature rather than commercial. See Manning v. Zuckerman, 388 Mass. 8, 14 (1983) (dispute "private in nature" and did not occur in the "conduct of any trade or commerce").
The Center's final two claims for c. 93A damages are also unavailing. The Trust was under no obligation to accede to the Center's demand to reimburse it for the settlement damages paid by the Center for the Vega settlement. Therefore, the Trust's failure to do so cannot form the basis of a c. 93A claim.
Finally, although the defendant created a separate legal entity, P&L Realty Trust II, and transferred assets from the Trust into the new trust, the Center has failed to set forth with specificity any facts demonstrating that the transfer was a fraudulent attempt to escape liability.
The defendant's request for appellate attorney's fees and costs is denied.
By the Court (Green, Graham & Katzmann, JJ.),
Clerk Entered: November 25, 2014.