THE EXHIBIT SOURCE, INC.
WELLS AVENUE BUSINESS CENTER, LLC.
Heard: September 13, 2018.
Complaint received and sworn to in the Central Division of
the Boston Municipal Court Department on May 6, 2014. The
case was tried before Myong J. Joun, J.
M. Fray-Witzer for the defendant.
C. Aisenberg for the plaintiff.
Present: Wolohojian, Lemire, & Englander, JJ.
defendant commercial landlord Wells Avenue Business Center,
LLC (Wells), failed to return the $15, 982 security deposit
of the plaintiff tenant, The Exhibit Source, Inc. (Exhibit
Source). Exhibit Source sued, asserting various common-law
claims, as well as a claim under G. L. c. 93A, § 11. The
jury found for the plaintiff on the common-law claims, and
the judge separately found for the plaintiff under c. 93A,
and awarded treble damages and attorney's fees. The
Appellate Division affirmed. On further appeal to this court,
the defendant argues that (1) the trial judge improperly
adjusted the jury's damages award, (2) the facts did not
support a c. 93A violation, (3) language in the commercial
lease prohibited the award of multiple damages, and (4) it
made a reasonable offer of settlement, which pretermitted an
award of multiple damages and attorney's fees. We affirm.
Source and Wells entered into a commercial lease (lease)
pursuant to which Exhibit Source provided a security deposit
of $15, 982. The lease terminated August 31, 2013. The lease
expressly required the defendant landlord to return the
security deposit "[w]ithin thirty (30) days" of
lease termination, except that the landlord could
"apply" the security deposit to compensate for
damages suffered as a result of a "Tenant Default."
"Tenant Default," in turn, was a defined term; as
discussed below, the only "tenant default" that
could possibly apply to the facts here was in lease section
16.1(d) -- "failure by Tenant to fulfill any other
obligation under this lease, if such failure is not cured
within twenty (20) days of notice from Landlord to
Tenant ..." (emphasis supplied).
trial judge found, the defendant landlord failed to fulfill
its obligations with respect to the security deposit. The
plaintiff tenant vacated the premises as of August 31, 2013.
Representatives of the landlord and the tenant walked through
the premises on September 4, 2013. The landlord's
representative did not raise any issue as to the condition of
the premises at that time, or indeed for the next seven
months. Starting in October of 2013 the plaintiff repeatedly
requested the return of the security deposit. A
representative of the landlord represented several times that
the full amount would be forthcoming. That did not happen.
on April 1, 2014, the landlord returned $1, 202.28 of the
deposit, and retained $14, 780. The landlord claimed the $14,
780 was for damage to the property, allegedly caused when the
tenant removed certain shelving and signage upon leaving in
August of 2013. The alleged damage would have been visible
during the September 4, 2013, walk-through. At no time prior
to April 1, 2014, did the landlord provide notice to the
tenant of any damage, and the landlord never provided an
opportunity to cure as contemplated by the lease.
plaintiff filed suit on May 6, 2014, and asserted claims for
breach of contract, breach of the implied covenant of good
faith, conversion, misrepresentation, and violations of G. L.
c. 93A, § 11. The landlord did not make a settlement
offer when it filed its answer on May 30, 2014, although it
had offered $6, 000 around the time that the tenant filed
jury returned verdicts for the tenant on each of the
common-law claims, in response to special verdict questions.
It awarded damages of $25, 366.70, which it listed on its
special verdict form thusly:
$ 5, 366.70
plaintiff to receive"