Superior Court of Massachusetts, Suffolk, Business Litigation Session
Claire HENNESSY, on Behalf of Herself and All Others Similarly Situated
BROOKDALE SENIOR LIVING COMMUNITIES, INC. et al.
MEMORANDUM AND ORDER DENY DEFENDANTSâ MOTIONS TO
DISMISS OR TO STRIKE CLASS ALLEGATIONS AND TO REPORT THE
Kenneth W. Salinger, Justice of the Superior Court
Hennessy lives in an assisted living facility in Dedham,
Massachusetts. She has lived there since 2014, when she
entered into a "Resident Agreement" with Emeritus
Corporation, which at that time operated the facility.
Brookdale Senior Living Communications, Inc., now manages the
claims that Emeritus violated Massachusetts residential
landlord/tenant law by charging her a $4, 250 "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
that Brookdale received Hennesseyâs community fee payment
when it acquired or began to manage the facility. She asserts
personal and putative class claims under G.L.c. 186 and c.
93A and for negligent misrepresentation, unjust enrichment,
and declaratory judgment with respect to this community fee.
also claims that Brookdale has been charging her for services
that it never provided. She asserts personal and putative
class claims against Brookdale for negligent
misrepresentation, fraud, and unjust enrichment, and also
under c. 93A, with respect to the alleged overcharges.
have moved to dismiss all claims or, in the alternative, to
strike the class allegations. The Court will dismiss the
claim of intentional fraud but otherwise deny this motion.
Defendants have also asked the Court to report its decision
for interlocutory appellate review. The Court will deny that
Motion to Dismiss Claims
ask the Court to dismiss all of Hennesseyâs claims pursuant
to Mass.R.Civ.P. 12(b)(6). 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 (2012), quoting Iannacchino v. Ford Motor Co.,
451 Mass. 623, 636 (2008), and Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (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 Plaintiffsâ favor
from the facts alleged are true. See Golchin v. Liberty
Mut. Ins. Co., 460 Mass. 222, 223 (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 (2015), quoting Curtis v. Herb
Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
Community Fee Claims
states viable claims that it was illegal for Emeritus to
charge and for Brookdale to retain a $4, 250 "community
fee" that was used at least in part to prepare her
apartment for occupancy. General Laws c. 186, § 15B,
defines some of "the rights and duties of a residential
landlord and tenant." Taylor v. Beaudry, 82
Mass.App.Ct. 105, 116 (2012). It provides in part that no
lessor of residential real property "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 monthsâ rent, a security deposit
equal to first monthâs rent, and a charge for the cost of
installing a new lock and providing a key. See G.L.c. 186,
resident agreement between Hennessy and Defendants is in part
a residential lease and is therefore, to that extent, subject
to § 15B. Under Massachusetts common law,
"[a] tenancy at will arises out of an agreement, express
or implied, by which one uses and occupies the premises of
another for a consideration-usually the payment of
rent." Williams v. Seder, 306 Mass. 134, 136
(1940). The tenancy is residential, of course, if it involves
the lease of residential property. The contract in this case
gives Hennessy the legal right to live in an apartment within
the residential facility, in exchange for paying a monthly
fee. It is a month-to-month lease of an apartment. Though the
landlord has the right to move Hennessy to a substitute
apartment, the contract expressly gives Hennessy the right to
exclusive occupancy of whichever apartment she is living in,
in consideration for her monthly payment. The "resident
agreement" therefore creates a residential tenancy and
is subject to § 15B.
Hennessy contracted to live in an assisted living facility,
and not just any residential apartment, by law Defendants
were required to offer and provide a variety of personal care
services in addition to Hennessyâs right to exclusive
occupancy of a residential apartment. See G.L.c. 19D, §
2(v) & § 10(a). The Legislature enacted c. 19D to
establish minimum standards that all "assisted living
residences" must meet in providing support and services
in additional to residential tenancies.
argue that c. 19D supersedes c. 186, and exempts assisted
living facilities from complying with any of the statutory
obligations imposed upon other residential landlords, because
c. 19D is a more specific statute and was enacted more
recently than c. 186. The Court is not convinced.
statute is not to be deemed to repeal or supersede a prior
statute in whole or in part in the absence of express words
to that effect or of clear implication." George v.
National Water Main Cleaning Co., 477 Mass. 371, 378
(2017), quoting Commonwealth v. Hayes, 372 Mass.
505, 512 (1977). "Where two statutes appear to be in
conflict, we do not mechanically determine âthat the more
"recent" or more "specific" statute ...
trumps the other.â" Id., quoting
Commonwealth v. Harris, 443 Mass. 714, 725 (2005).
"Instead, we âendeavor to harmonize the two statutes so
that the policies underlying both may be honored.â"
Id., quoting Harris, supra;
accord, e.g., Alliance to Protect Nantucket Sound, Inc.
v. Energy Facilities Siting Board, 457 Mass. 663, 673
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 (2010), quoting General
Elec. Co. v. Department of Envtl. Protection, 429 Mass.
798, 803 (1999).
does c. 19D implicitly supersede c. 186. 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. And
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
Defendants must comply with all laws that govern residential
tenancies to the extent they apply to their facilities.
Defendants argue that the security deposit and other
requirements of G.L.c. 186, § 15B, cannot be applied to
assisted living facilities because that would make one small
part of G.L.c. 19D superfluous. In establishing the statutory
framework that governs assisted living facilities, the
Legislature provided that no resident of such a facility may
"be evicted ... except in accordance with the provisions
of landlord tenant law as established by" G.L.c. 189 or
c. 239. See G.L.c. 19D, § 9(a)(18). Defendants assert
that this reference to the eviction protections of c. 186
would be unnecessary and therefore superfluous if all of the
protections afforded to residential tenants under c. 186
applied in assisted living facilities. Cf. Shirley
Wayside Ltd. Partnership v. Board of Appeals of Shirley,
461 Mass. 469, 477 (2012) (courts should try to
"interpret a statute to give effect to all its
provisions, so that no part will be inoperative or
superfluous") (quoting Connors v. Annino, 460
Mass. 790, 796 (2011) (internal quotation marks omitted)).
Defendants are correct that the eviction provision in c. 19D,
§ 9(a)(18), was in a technical sense redundant and
unnecessary, the Legislatureâs decision to clarify that the
eviction provisions of c. 186 protect residents of assisted
living facilities does not mean that we can ignore the plain
meaning of c. 186, § 15B. "Redundancies across
statutes are not unusual events in drafting, and so long as
there is no âpositive repugnancyâ between two laws, ... a
court must give effect to both." Connecticut Nat.
Bank v. Germain,503 U.S. 249, 253 (1992), quoting
Wood v. United States, 41 U.S. (16 Pet.) 342, 363
(1842). Statutory "provisions that, although
âtechnically unnecessary, â are sometimes âinserted out of an
abundance of caution-a drafting imprecision venerable enough
to have left its mark on legal Latin (ex abundanti
cautela).â" Smith v. City of Jackson,
Miss.,544 U.S. 228, 252 (2005) (Scalia, J., concurring
in part and ...