November 14, 2018
N.E.3d 357] Mobile Home . Manufactured Housing
Community . Oil and Gas . Regulation .
Consumer Protection Act, Unfair or deceptive act,
Class action. Practice, Civil, Summary judgment,
Class action, Consumer protection case.
ACTION commenced in the Superior Court Department on April
22, 2015. Motions for summary judgment were heard by
Kenneth J. Fishman, J.; a motion for class
certification was heard by S. Jane Haggerty, J.; and
the entry of judgment was ordered by Fishman, J.
R. Horowitz for the plaintiffs.
J. Keenan, Boston, for the defendants.
Healey, Attorney General, & Daniel A. Less, Assistant
Attorney General, for the Attorney General, amicus curiae,
submitted a brief.
Hanlon, Massing, & Ditkoff, JJ.
N.E.3d 358] RHP Properties, Inc. (RHP Properties), a large
owner and operator of manufactured housing communities, has a
nationwide policy requiring its residents to pay for the
maintenance, repair, and replacement of their
privately-owned, individually-metered fuel tanks. The main
question posed in this appeal is whether that policy passes
muster under the provisions of the Manufactured Housing Act,
G. L. c. 140, § § 32A-32S (act), and the Attorney Generals
regulations promulgated thereunder,
940 Code Mass. Regs. § § 10.00 (1996) (Attorney Generals
regulations). , A judge of the Superior
Court decided that it did not, and entered judgment for the
individual plaintiffs, Rosa and Francis Layes. We agree with
that decision, but conclude that the denial of
Rosas motion for class certification by
another judge (motion judge) constituted an abuse of
discretion. Accordingly, we affirm in part and reverse in
the operative facts is in dispute. Rosa and Frank Layes live
at Chelmsford Commons, a manufactured housing community with
approximately 250 home sites (Chelmsford Commons or CC
park). , The Layeses, like some
eighty percent of the CC park residents, heat their
manufactured home primarily with oil, which is stored in an
above-ground tank situated on a cement pad adjacent to their
home. The oil tank serves only their home. Pursuant to
their lease agreement, the Layeses and all CC park residents
are responsible for purchasing their own fuel oil.
2006, the Layeses purchased a new tank. The CC park rules at
the time tied utility maintenance duties to the location of
the systems; the parks operators were responsible for
everything on the exterior of the homes, while residents were
responsible for everything in the interior. However,
par. 9.h of the rules specifically required the residents to
maintain their own oil tanks.
April, 2011, RHP Properties purchased the CC park through the
Chelmsford Group, LLC (Chelmsford Group) [133 N.E.3d 359]
(collectively, defendants). Thereafter, a document
titled "Chelmsford Commons Rules and Regulations,"
dated April 22, 2011, was circulated to the park residents
showing that par. 9.h had been deleted. (Paragraph 9
otherwise remained unchanged.) The Attorney General later
approved the March, 2013, version of these rules, which
contained the same allocation of maintenance duties as the
2011 rules and regulations.
these "official" CC park rules, the defendants
implemented a policy placing all burdens and costs associated
with the home heating oil systems on the
residents. The defendants required new and
renewing residents to sign standard lease agreements that
made the residents responsible for "the maintenance and
replacement of any above ground oil or fuel storage
tanks." The policy was described in an
"addendum" to the park rules and was posted in the
park management office.
defendants admit that at no time have they maintained,
repaired, or replaced any exterior components of the
residents home heating oil systems in the CC park. They have
required the residents to do the following with respect to
the exterior components: (1) the sanding and painting of
rusted oil tanks; (2) the connection of the tanks to the
homes and the removal of unused
tanks; and (3) the installation of either protective sleeves
on the fuel lines connecting the tanks to the homes or oil
safety valves. Many residents who failed to perform
this work at their own cost were threatened with legal action
or were sued by the defendants.
21, 2014, the Layeses smelled oil on their home site. Francis
discovered oil leaking from the bottom of the tank. The
Layeses immediately placed a container under the tank to
catch the oil, and notified CC park maintenance employee
Ronald Hennessey and their oil supplier, Gagnon Brothers Oil
Company (Gagnon). A Gagnon employee responded and pumped the
remaining oil in the tank into a temporary transfer tank. The
compromised tank was removed from the site and destroyed.
Thereafter, Hennessey and an RHP Properties manager informed
Rosa that it was the Layeses duty to replace the tank. The
Layeses, who had two small children, could not afford the
cost of a new [133 N.E.3d 360] tank. In September, 2014, the
defendants rented a temporary tank for the Layeses and had it
connected to their home.
Rosa attempted to schedule an oil delivery in January, 2015,
Gagnon refused to provide additional oil until the Layeses
purchased a new permanent tank. Although Rosa contacted other
oil suppliers, she was unable to find a supplier who would
fill the temporary tank. For the rest of the 2015 heating
season, the Layeses rationed their remaining oil supply. The
temperature in their home routinely fell into the 50s
(degrees, Fahrenheit) in the mornings. On August 24, 2015,
the Layeses observed the Chelmsford Commons manager and a
third party disconnect, drain, and remove the temporary tank
from their home site.
April 22, 2015, the Layeses filed a complaint, alleging that
the defendants failure to maintain, repair, and replace the
exterior components of their home heating system (and those
of the other residents of the CC park) violated the act, the
Attorney Generals regulations, and G. L. cc. 93A and 186.
The defendants asserted counterclaims against the Layeses,
alleging negligence and liability under G. L. c. 21E for the
cleanup costs arising from the release of oil on the Layeses
home site. On November 2, 2015, with winter approaching, a
judge of the Superior Court issued a preliminary injunction
requiring the defendants to provide the Layeses with a new
fuel tank and to
connect it to their home.
on cross motions for summary judgment, a judge allowed the
Layeses renewed motion for partial summary judgment on their
individual c. 93A claims and on the defendants amended
counterclaim. Another judge subsequently denied Rosas motion
for class certification. Final judgment in favor of the
Layeses entered on their two substantive claims (under c. 93A
and c. 186, § 14), and the judge awarded them three
months rent in damages as well as attorneys
fees. See G. L. c. 186, § 14. The judge
also dismissed the defendants counterclaims and permanently
enjoined the defendants "from implementing or engaging
in any policies or practices that contravene or violate 940
Code Mass. Regs. § § 10.03(2)(n) and 10.05(4)(d)." These
timely cross appeals followed.
N.E.3d 361] As the defendants point out, were we to conclude
that the judge erred in entering judgment for the Layeses on
their individual claims, there would be no need to reach the
merits of the certification ruling. We start our analysis
Individual claims .
Standard of review .
review the allowance of a motion for summary judgment de
novo, assessing whether, viewing the facts in the light most
favorable to the nonmoving party (here, the defendants), the