Heard: April 15, 2015.
Civil action commenced in the Superior Court Department on November 2, 2010. After review by this court, 81 Mass.App.Ct. 1127 (2012), the case was heard by Janet L. Sanders, J., on motions for summary judgment.
Valeriano Diviacchi for the plaintiff.
J. Christopher Allen, Jr. (Troy Lieberman with him) for the defendant.
Present: Cohen, Wolohojian, & Maldonado, JJ.
The plaintiff appeals from a judgment of dismissal contending, as she did below, that a transaction involving the lease of a water heater was actually a credit sale in disguise, and, consequently, that the defendant's failure to make certain required disclosures amounted to common-law misrepresentation and a violation of G. L. c. 93A. Guided by Silva v. Rent-A-Center, Inc., 454 Mass. 667 (2009) (Silva), a Superior Court judge concluded that the transaction at issue did not meet the definition of either a "credit sale" under the Consumer Credit Cost Disclosure Act (CCCDA), G. L. c. 140D, § 1, or a "retail installment sale agreement" under the Retail Instalment Sales and Services Act (RISSA), G. L. c. 255D, § 1, and, accordingly, granted summary judgment in favor of the defendant. We agree and affirm.
In July, 2010, the plaintiff, Diane Saia, entered into an agreement with the defendant, Bay State Gas Company (Bay State), for the installation of a new water heater at her home in Longmeadow. The plaintiff signed a document entitled "Appliance Lease Agreement, " which obligated her to pay $28.16 per month for three years for use of a water heater. The total lease payments for the three-year "minimum term" amounted to $1, 013.76. That amount combined with a $220 upfront installation fee brought the plaintiff's total obligation under the agreement to $1, 233.76. At the end of the minimum term, both the plaintiff and the defendant could cancel the lease at any time upon a thirty-day written notice. Absent the written cancellation notice, the lease could continue indefinitely. The plaintiff was also given the option to purchase the water heater at any time during the lease (including within the minimum term). Under this buyout option, the purchase price was the greater of two amounts: (1) the sum of one-half of the paid lease payments subtracted from a "total installed price" of $1, 510.87,  or (2) $75. After making thirteen lease payments totaling $366.08, the plaintiff chose to exercise the purchase option and paid an additional $1, 381.66 pursuant to the contract buyout formula. Adding together the lease payments, the upfront installation fee, the buyout price, and the sales tax, the plaintiff spent a total of $1, 967.74 to take ownership of the water heater.
On November 10, 2010, the plaintiff filed a four-count amended class action complaint asserting misrepresentation (Count I), violations of G. L. c. 93A (Count II), unjust enrichment (Count III), and seeking rescission on the basis that the defendant had violated G. L. c. 93, § 48 (Count IV). A Superior Court judge dismissed the entire complaint for failure to state a claim pursuant to Mass.R.Civ.P 12(b)(6), 365 Mass. 754 (1974). This court, in an unpublished decision pursuant to Appeals Court Rule 1:28, affirmed the dismissal of counts III and IV and reversed the dismissal of the remaining claims which, resting on the CCCDA and the defendant's failure to disclose interest charges, alleged common-law misrepresentation and a violation of G. L. c. 93A. Saia v. Bay State Gas Co., 81 Mass.App.Ct. 1127 (2012) (Saia I). Following remand on the reinstated counts, the judge entered summary judgment in favor of the defendant on the plaintiff's amended complaint, and the plaintiff timely filed her appeal.
In reviewing a grant of summary judgment, we consider the evidence in the light most favorable to the nonmoving party and determine whether "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 may consider any ground supporting the judgment." Ibid.
The plaintiff contends the transaction at issue was actually a disguised credit sale or a retail instalment sale agreement and, as a result, that the defendant failed to make certain disclosures required by the CCCDA and RISSA. The plaintiff asserts this failure amounts to common-law misrepresentation and a violation of G. L. c. 93A. The first step in our inquiry, therefore, is to determine whether the transaction meets the definition of a credit sale under the CCCDA or a retail instalment sale agreement under the RISSA. The CCCDA defines a credit sale as:
"any contract in the form of a bailment or lease if the bailee or lessee contracts to pay as compensation for use a sum substantially equivalent to or in excess of the aggregate value of the property and services involved and it is agreed that the bailee or lessee will become, or for no other or a nominal consideration has the option to become, ...