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Gowen v. Benchmark Senior Living, LLC

Superior Court of Massachusetts, Suffolk, Business Litigation Session

May 5, 2017

Adrienne Gowen, Through her Legal Guardian Scott Gowen and on Behalf of Herself and all Others Similarly Situated
v.
Benchmark Senior Living, LLC

          Filed May 8, 2017

          MEMORANDUM AND ORDER DENYING CROSS MOTIONS TO DISMISS

          Kenneth W. Salinger, Justice.

         Adrienne Gowen lives in an assisted living facility that is now managed by Benchmark Senior Living, LLC. Gowen claims that Benchmark's predecessor assessed and collected some unlawful charges when Gowen first moved in. Benchmark, in turn, claims that Gowen has failed to pay what she owes for living in the Benchmark facility and receiving assisted-living services from Benchmark.

         Gowen alleges that Benchmark's predecessor violated Massachusetts residential landlord/tenant law in two ways: by charging her a $2, 500 " community fee" at the inception of her lease even though such a fee is not authorized by G.L.c. 186, § 15B(1)(b); and by charging $5, 500 for last month's rent that in reality was a security deposit, and not complying with the legal requirements for assessing a security deposit (such as holding it in a separate interest-bearing account and paying Gowen interest on her deposit each year). Gowen alleges that Benchmark is liable for prior and ongoing misconduct with respect to each of these two charges. She asserts claims for violations of G.L.c. 186, § 15B, and G.L.c. 93A and for negligent misrepresentation, intentional fraud, and unjust enrichment.

         Benchmark alleges that Gowen and her guardian have failed to pay what they owe for Gowen's residency and the services she has been receiving at the facility. Benchmark asserts counterclaims for breach of contract and unjust enrichment.

         Both sides have moved to dismiss all claims and counterclaims against them under Mass.R.Civ.P. 12(b)(6). The Court will allow Benchmark's motion in part with respect to Gowen's claim under G.L.c. 93A concerning the " community fee" and with respect to all of her claims for negligent misrepresentation and intentional fraud. It will deny the rest of Benchmark's motion. It will also deny Gowen's motion to dismiss the counterclaims against her.

         1. Legal Standards

          To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege facts that, if true, would " plausibly suggest[ ] . . . an entitlement to relief." Lopez v. Commonwealth, 463 Mass. 696, 701, 978 N.E.2d 67 (2012), quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008), and Bell A. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). For the purpose of deciding the pending motions to dismiss, the Court must assume that the factual allegations in the complaint and any reasonable inferences that may be drawn in Plaintiffs' favor from the facts alleged are true. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223, 950 N.E.2d 853 (2011). In so doing, however, it must " look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief." Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, 473 Mass. 336, 339, 42 N.E.3d 199 (2015), quoting Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676, 940 N.E.2d 413 (2011).

         2. Claims Against Benchmark

         2.1. Community Fee Claims

         2.1.1. G.L.c. 186, § 15B

         Gowen states a viable claim in Count I that it was illegal for Benchmark's predecessor to make Gowen pay a $2, 500 " community fee" and that it is therefore illegal for Benchmark to retain that community fee. Chapter 186 governs the renting of residential living space. It provides in relevant part that " no lessor may require a tenant or prospective tenant, " at or before commencement of a residential tenancy, " to pay any amount in excess of" first and last months' rent, a security deposit equal to first month's rent, and a charge for the cost of installing a new lock and providing a key. See G.L.c. 186, § 15B(1)(b).

         Benchmark's assertion that assisted living facilities are not subject to c. 186, § 15B, because they are regulated by the Executive Office of Elder Affairs under G.L.c. 19D is without merit. Assisted living facilities provide their residents with a combination of a place to live and an array of supportive services. The " Residence and Service Agreement" that Gowen says she executed specifies that Gowen is entitled to receive not only living accommodations but also personal assistance and care (including assistance with bathing and grooming), housekeeping services, monitoring of her health needs, and social and recreational activities. The additional services beyond a mere residential tenancy are governed by c. 19D. But nothing in that statute supersedes, either expressly or by necessary implication, the legal protections that § 15B provides to all residential tenants in Massachusetts.

          Nothing in c. 19D expressly exempts assisted living facilities from the requirements imposed by c. 186. Although the Legislature expressly exempted such facilities from having to comply with certain statutes that regulate health care facilities and from any zoning requirement that cluster developments obtain a special permit, it did not exempt such facilities from the fee limitations and security deposit requirements that apply to all residential tenancies. See. G.L.c. 19D, § 18. The Court may not " read into the statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose." Provencal v. Commonwealth Health Ins. Connector Auth., 456 Mass. 506, 516, 924 N.E.2d 689 (2010), quoting General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 803, 711 N.E.2d 589 (1999).

          Nor does c. 19D implicitly supersede c. 186. To the contrary, the Legislature directed that assisted living facilities " shall meet the requirements of all applicable federal and state laws and regulations[.]" G.L.c. 19D, § 16. This makes clear that c. 19D is not intended to be an exhaustive regulatory scheme that governs all aspects of assisted living operations. And it also makes clear that Benchmark must comply with all laws that govern residential tenancies to the extent they apply to its facility.

          Assisted living facilities can easily comply with both statutory schemes, providing supportive services in accord with c. 19D to a resident whose tenancy is also governed by § 15B. Courts must therefore construe and apply these two statutes in a manner that gives " meaning and purpose to both . . . 'so that the policies underlying both may be honored.'" Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 457 ...


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