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Hennessy v. Brookdale Senior Living Communities, Inc.

Superior Court of Massachusetts, Suffolk, Business Litigation Session

August 1, 2018

Claire HENNESSY, on Behalf of Herself and All Others Similarly Situated
v.
BROOKDALE SENIOR LIVING COMMUNITIES, INC. et al.

          MEMORANDUM AND ORDER DENY DEFENDANTS’ MOTIONS TO DISMISS OR TO STRIKE CLASS ALLEGATIONS AND TO REPORT THE MATTER

          Kenneth W. Salinger, Justice of the Superior Court

          Claire 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 facility.

         Hennessy 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 Hennessey’s 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.

         Hennessy 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.

         Defendants 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 request.

         1. Motion to Dismiss Claims

         Defendants ask the Court to dismiss all of Hennessey’s 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 Plaintiffs’ 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).

         1.1. Community Fee Claims

         Hennessey 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 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).

          The resident agreement between Hennessy and Defendants is in part a residential lease and is therefore, to that extent, subject to § 15B.[1] 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.

         Since 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 Hennessy’s 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.

         Defendants 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.

         "[A] 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 ‘that the more "recent" or more "specific" statute ... trumps the other.’" Id., quoting Commonwealth v. Harris, 443 Mass. 714, 725 (2005). "Instead, we ‘endeavor to harmonize the two statutes so that the policies underlying both may be honored.’" Id., quoting Harris, supra; accord, e.g., Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Board, 457 Mass. 663, 673 (2010).

         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 (2010), quoting General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 803 (1999).

         Nor 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)).

         Although Defendants are correct that the eviction provision in c. 19D, § 9(a)(18), was in a technical sense redundant and unnecessary, the Legislature’s 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 ‘positive repugnancy’ 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 ‘technically unnecessary, ’ are sometimes ‘inserted out of an abundance of caution-a drafting imprecision venerable enough to have left its mark on legal Latin (ex abundanti cautela).’" Smith v. City of Jackson, Miss.,544 U.S. 228, 252 (2005) (Scalia, J., concurring in part and ...


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