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Layes v. RHP Properties, Inc.

Appeals Court of Massachusetts, Middlesex

August 28, 2019

Rosa LAYES [1] & another[2]
v.
RHP PROPERTIES, INC., & another.[3]

         Argued November 14, 2018

         [133 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.

          CIVIL 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.

         Ethan R. Horowitz for the plaintiffs.

         Trevor J. Keenan, Boston, for the defendants.

         Maura Healey, Attorney General, & Daniel A. Less, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.

         Present: Hanlon, Massing, & Ditkoff, JJ.

         OPINION

         HANLON, J.

Page 805

         [133 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 General’s regulations promulgated thereunder,

Page 806

940 Code Mass. Regs. § § 10.00 (1996) (Attorney General’s regulations).[4] ,[5] 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 Rosa’s[6] motion for class certification by another judge (motion judge) constituted an abuse of discretion. Accordingly, we affirm in part and reverse in part.

         Background .

         None of 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).[7] ,[8] 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.[9] Pursuant to their lease agreement, the Layeses and all CC park residents are responsible for purchasing their own fuel oil.

         In 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 park’s operators were responsible for everything on the exterior of the homes, while residents were responsible for everything in the interior.[10] However, par. 9.h of the rules specifically required the residents to maintain their own oil tanks.[11]

Page 807

          In April, 2011, RHP Properties purchased the CC park through the Chelmsford Group, LLC (Chelmsford Group) [133 N.E.3d 359] (collectively, defendants).[12] 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.[13]

         Notwithstanding 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.[14] 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.

         The 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

Page 808

tanks; and (3) the installation of either protective sleeves on the fuel lines connecting the tanks to the homes or oil safety valves.[15] Many residents who failed to perform this work at their own cost were threatened with legal action or were sued by the defendants.

          On May 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.

          When 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.

         Legal proceedings .

         On 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 General’s 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

Page 809

connect it to their home.[16]

         Ruling 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 Rosa’s motion for class certification. Final judgment in favor of the Layeses entered on their two substantive claims (under c. 93A and c. 186, § 14),[17] and the judge awarded them three months’ rent in damages as well as attorneys’ fees.[18] 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.[19]

         [133 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 there.

          Discussion .

          A. Individual claims .

          1. Standard of review .

          We 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 moving ...


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