November 1, 2017
N.E.3d 887] CIVIL ACTION commenced in the Superior Court
Department on July 29, 2014. A motion to dismiss was heard by
Maureen B. Hogan, J.; the entry of judgment was
ordered by her; and a motion for relief from judgment was
considered by her.
G. Sobczak, Boston, for the plaintiff.
M. Desmond (Justin L. Amos also present), Boston, for the
Green, Rubin, & Hanlon, JJ.
plaintiff, Sandra Montanez, appeals from the judgment of
dismissal of her G. L. c. 93A claim pursuant to Mass. R. Civ.
P. 12 (b) (6), 365 Mass. 754 (1979). On appeal, we take the
allegations in the complaint as true, drawing all reasonable
inferences in favor of the plaintiff. See Fairneny v.
Savogran Co., 422 Mass. 469, 470, 664 N.E.2d 5 (1996).
March 31, 2014, following the transfer of her mother, Benita
Sanchez, from the Lexington Healthcare Center, a nursing home
owned by the defendant (hereafter, nursing home or defendant)
in which Sanchez had lived for approximately ten years, until
August 2013, the plaintiff in her capacity as guardian for
her mother sent a request to the nursing home for all her
mother’s medical records from January 1, 2013, forward. No
records were received. On May 15, 2014, through her counsel,
she sent the nursing home a demand letter pursuant to G. L.
c. 93A, � 9. This letter was never answered. On May 21, 2014,
her counsel received a copy of the records, not certified as
to their completeness. The plaintiff inventoried the records,
which appeared incomplete, and on June 27, 2014, her counsel
sent another request, this time for a certified copy of the
records. On July 9, 2014, the request was answered by the
nursing home’s counsel, who stated that the records already
sent were complete, apart from some inadvertently-omitted
"interim physician’s order sheets," which he
included in this correspondence. The plaintiff then sent a
final request for a certified copy of the records on July 11,
receiving no response to this last request, the plaintiff, on
July 29, 2014, brought suit as her mother’s guardian, seeking
damages under G. L. c. 93A and an injunction ordering the
nursing home to produce the complete records for copying [129
N.E.3d 888] and inspection. Immediately following service,
the nursing home offered to allow the plaintiff to inspect
and copy the records, and a judge denied the plaintiff’s
motion for a preliminary injunction. The plaintiff inspected
the records at the nursing home’s counsel’s office, and
discovered approximately twenty pages that had not previously
been disclosed. The defendant filed a motion to dismiss the
complaint, which was allowed by a different judge.
The judge concluded that the complaint did not state a claim
for a G. L. c. 93A violation, and that the claim for
injunctive relief was moot. The plaintiff now
plaintiff’s mother died while the defendant’s motion to
dismiss was under advisement. We must at the outset therefore
address whether the cause of action survives the death of the
plaintiff’s mother. At least those claims under c. 93A that
are "contractual in nature" survive death. See
Kraft Power Corp. v. Merrill, 464 Mass. 145, 157,
981 N.E.2d 671 (2013) (holding this, and reserving question
about survival of c. 93A claims that are not contractual in
nature). The regulations whose violation is alleged to form
the basis of the c. 93A claim, discussed below, are
applicable here solely because of the contractual
relationship between the plaintiff’s mother and the nursing
home and its medical personnel. Consequently, we think the
question is controlled by Gasior v. Massachusetts Gen.
Hosp., 446 Mass. 645, 650-651, 846 N.E.2d 1133 (2006),
in which the Supreme Judicial Court concluded that a claim
under G. L. c. 151B survived death "because the
employment relationship could be viewed as a contract, and
the invidious discrimination prohibited by G. L. c. 151B was
an implied term of that contractual relationship."
Kraft Power Corp., supra at 156-157, 981 N.E.2d 671.
In much the same way, the requirements of the regulations
upon which the plaintiff relies can be viewed as derivative
of her mother’s contractual relationship with the nursing
home and its health care personnel. Consequently, the claim
the standing of the plaintiff, we note initially that,
because the mother’s estate had no personal representative
when judgment entered, the notice of appeal was properly
filed by the plaintiff’s attorney of record. See Mass. R. A.
P. 30 (a), as amended, 378 Mass. 925 (1979). However, as the
estate lacked a personal representative, the plaintiff at
that time lacked authority to pursue the appeal. See
Turner v. Minasian,358 Mass. 425, 427, 265 N.E.2d
371 (1970). Therefore, after argument, when the question of