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2008 Tracy v Norve (right to a jury under 93A)

SOUTHEASTERN DIVISION

Docket # 04-CV-01109

Parties: Noel Tracy and Michael Tracy v. Norve Properties, LLC and Lawrence E. Norve, Jr. Judge: /s/WILBUR P. EDWARDS, JR. ASSOCIATE JUSTICE Date: March 19, 2008 MEMORANDUM OF DECISION ON PLAINTIFFS’ M.G.L. c. 93A CLAIM

This civil action was initiated by the Plaintiffs for damages arising from the rental of an apartment unit located at 174 Pleasant Street in Hanson, MA. (the “Premises”). The Plaintiffs allege that the Defendants breached the covenant of quiet enjoyment and the implied warranty of habitability as to the presence and removal of lead paint in the Premises. The Plaintiffs further alleged that the Defendants retaliated against them, were negligent, failed to comply with the security deposit statute, violated the provisions of M.G.L. c. 93A as promulgated pursuant to regulations issued by the Attorney General and, finally, caused the Plaintiffs to suffer emotional distress. The Defendants denied the allegations and counterclaimed for rental arrearages and damage to the Premises.

The Court conducted a two-day jury trial on November 13th and 14th, 2007. The Court retained the Plaintiffs’ M.G.L. c. 93A count against the Defendants for a separate ruling. On Defendant’s Motion for Directed Verdict, the Court found for the Defendants on the Plaintiffs’ security deposit, negligence and emotional distress claims. After deliberation, the jury found for the Defendants on the Plaintiffs’ implied warranty of habitability, breach of quiet enjoyment and retaliation claims. The jury further awarded the Defendants unpaid rent in the amount of $4,125.00 and damages to the Premises in the amount of $1,065.00. The Court will now rule on the Plaintiffs’ remaining M.G.L. c. 93A claim.

When considering the merits of a claim pursuant to M.G.L. c. 93A, many courts hold that a jury verdict in favor of the Defendant on the claims underlying the M.G.L. c. 93A claim extinguishes the M.G.L. c. 93A claim. See Cytologix Corp. v. Ventana Medical

Systems, Inc., 2006 WL 2042331 at *2 (D. Mass., 2006)(allowing the Defendant’s Motion for Summary Judgment as to the Plaintiff’s M.G.L. c. 93A claim “because the underlying claims…were extinguished by virtue of the jury’s verdict and a 93A claim must fail where the underlying claims fail”); Pimental v. Wachovia Mortgage Corp., 411 F.Supp.2d 32, 40 (D. Mass. 2006)(allowing the Defendant’s Motion to Dismiss because the Plaintiff “…failed to allege sustainable breach of contract or negligence claims, and the Chapter 93A claim is based upon the previous two claims; [therefore], there is no basis for finding [the Defendant] liable under Chapter 93A”); Sanchez v. Witham, 2003 WL 1880131 at *2 (Mass.App.Div. 2003)(stating that the judge may proceed to hear the Plaintiff’s M.G.L. c. 93A claim only if the jury first resolves the underlying claim in the Plaintiff’s favor).

Some courts, however, find that a judge is not bound by the findings of the jury. See Wallace Motor Sales, Inc. v. American Motor Sales Corp., 780 F.2d 1049, 1063 (1st Cir., 1985); PolyCarbon Industries, Inc. v. Advantage Engineering, Inc., 260 F.Supp.2d 296, 304 (D. Mass., 2003); Poly v. Moylan, 423 Mass. 141, 151 (1996); Wyler v. Bonnell, 35 Mass.App.Ct. 563, 568 (1994). “A judge may make independent and, therefore, different, findings on the c. 93A aspect of a case that arises from the same facts which gave rise to parallel common law claims.” Poly, 423 Mass. at 151, citing Wyler, 35 Mass. App. Ct. at 568.

This Court finds that the jury’s verdict in this case, based upon the testimony and evidence presented to it as to the Defendants’ alleged breach of quiet enjoyment and the implied warranty of habitability claims, extinguished the Plaintiffs’ M.G.L. c. 93A claim.

As discussed below, the Court therefore finds for the Defendants as to the Plaintiffs’ M.G.L. c. 93A claim. The factual basis of the Plaintiffs’ quiet enjoyment, implied warranty of habitability, and M.G.L. c. 93A claims related to the Defendants’ alleged failure to: 1) disclose the presence of lead at the Premises in July 2002, when the Plaintiffs and their minor children initially moved into the Premises; 2) commence lead paint removal at the

Premises in a timely manner; and 3) relocate the Plaintiffs during the lead paint removal process between the months of August 2003 and February 2004. The jury found that the Defendants did not breach either the covenant of quiet enjoyment or the implied warranty of habitability. Accordingly, as the underlying claims have been resolved in favor of the Defendants, the Court finds that no set of facts exists by which the Defendants could be held liable under M.G.L. c. 93A. The Court therefore finds for the Defendants on the Plaintiffs’ claims pursuant to M.G.L. c. 93A, nunc pro tunc to November 14, 2007.

SO ORDERED.

End Of Decision