Jessica M. Perrault v. Barbara Brooks.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1441

JESSICA M. PERRAULT

vs.

BARBARA BROOKS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Jessica M. Perrault (plaintiff), brought a

small claims action in the Housing Court against her landlord,

Barbara Brooks (defendant), seeking reimbursement for

electricity fees that she paid as the defendant's tenant and

alleging a violation of G. L. c. 93A. A first assistant clerk-

magistrate awarded the plaintiff $1,245.10, which included

$334.40 in damages and $761 in attorney's fees. After the

defendant appealed the judgment pursuant to G. L. c. 218, § 23,

a judge of the Housing Court found for the plaintiff but altered

the award to $1,211.30, which included $668.80 in damages and

attorney's fees of $442.50. In appealing from the judgment, the

plaintiff argues that the judge (1) made erroneous factual
findings and evidentiary errors concerning the production of

evidence, (2) undercounted actual damages and attorney's fees,

and (3) violated the plaintiff's due process rights. We affirm.

Background. In April 2017, the plaintiff and defendant

entered into a rental agreement for the plaintiff to lease an

apartment. The rental agreement did not include whether the

plaintiff or defendant would pay for electricity costs, but the

parties verbally agreed that the plaintiff would pay for

electricity. In July 2018, the defendant installed a "ductless

mini-split" air conditioning and heating system into the

plaintiff's unit. After the installation, the plaintiff noticed

that her electrical usage had increased despite turning off the

mini-split; she notified the defendant in September 2018. After

investigating the problem, the defendant discovered a problem

with the meter where another unit's electric usage was being

counted towards the plaintiff's unit. To remedy the problem,

the defendant agreed to pay $345 to the plaintiff, which

constituted the difference in electricity costs between the

months where the plaintiff's usage had been cross-metered and

the same months from the year prior.

Following this meeting, however, the plaintiff's attorney

served the defendant with a demand letter pursuant to G. L.

c. 93A, alleging several unfair and deceptive acts and practices

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relating to her tenancy and demanding $6,458.16. At trial, the

plaintiff argued that she was entitled to all electricity costs

incurred during the time of her tenancy, approximately

$2,663.93, due to a lack of signed agreement specifying her

responsibility to pay electricity under the state sanitary code,

105 Code Mass. Regs. § 410.354 (2005), as well as attorney's

fees of $1,119.15 under G. L. c. 93A. A magistrate awarded the

plaintiff $1,120.40 plus costs of $100.00; the defendant noticed

an appeal, which was untimely, but was granted an extension. A

judge of the Housing Court concluded that the defendant's $345

payment to the plaintiff was an accord and satisfaction that

remedied the problem of the plaintiff's inflated electrical

usage, but determined the plaintiff was entitled to actual

damages of $334.40,1 money damages under G. L. c. 93A of $334.40,

and attorney's fees in the amount of $442.50.

Discussion. 1. Burden of producing evidence. The

plaintiff first argues that the judge committed several errors

in his factual findings and conclusions of law concerning the

production of evidence, asserting the following: (1) the judge

erred in finding the plaintiff did not submit evidence to

demonstrate violations of the warranty of habitability because

1 The plaintiff incurred $334.40 in electricity charges from
the time she sent the demand letter pursuant to G. L. c. 93A
until she vacated the unit in February 2020.

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it was the defendant's responsibility to submit the Board of

Health inspection report into evidence; (2) the judge erred in

finding the defendant's violation of the state sanitary code did

not cause the plaintiff's unit to be uninhabitable because the

defendant offered no evidence that the cross-metering problem

was fixed; and (3) the judge committed an evidentiary error by

not asking for the Board of Health inspection report to be

entered into evidence despite it being discussed. These

arguments reflect a misunderstanding of the plaintiff's burden.

It is a basic tenet of our common law that the party bringing a

civil action bears the burden of proving the essential elements

of a claim. See, e.g., Frontier Enters., Inc. v. Anchor Co. of

Marblehead, Inc., 404 Mass. 506, 513 (1989); Smith v. Hill, 232

Mass. 188, 190 (1919). Thus, because it was the plaintiff's

burden to submit evidence to support her claims, the judge did

not commit error here.

2. Damages. The plaintiff also asserts that the judge

erred by failing to award damages for the full relevant time

period, which the plaintiff contends is between when the mini-

splits were installed until the end of her tenancy. The amount

of actual damages is a question of fact for the judge, and "[w]e

will not disturb a judge's findings of fact in a c. 93A claim

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unless those findings are clearly erroneous." Clegg v. Butler,

424 Mass. 413, 420 (1997).

Because the plaintiff did not request the defendant pay the

electric charges until around December 2018, and the plaintiff

served the defendant with the demand letter on or around January

3, 2020, the judge did not commit clear error in measuring the

plaintiff's actual damages using the period between when the

plaintiff served her chapter 93A demand letter and when she

vacated her unit. See Poncz v. Loftin, 34 Mass. App. Ct. 909,

910-911 (1993) (damages for state sanitary code violation, 105

C.M.R § 410.354 (2005), do not include recovery of tenant's heat

and hot water costs that tenant incurred prior to demand that

landlord pay utilities when "essence of the violation . . . was

the failure to reduce the oral agreement to writing").

Nor was it clear error for the judge, in calculating

damages, to conclude that the defendant's $345 payment to the

plaintiff to reimburse the plaintiff for expenses incurred as a

result of the cross-metering was an accord and satisfaction.

See Williams v. B & K Med. Sys., Inc., 49 Mass. App. Ct. 563,

570 (2000) (accord and satisfaction defense is question of fact

and reviewed for clear error). "The defense of accord and

satisfaction is premised on the principle that '[i]f a creditor,

having . . . [a] disputed claim against [her] debtor, accepts a

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sum smaller than the amount claimed in satisfaction of the

claim, [she] cannot afterwards maintain an action for the unpaid

balance of his original claim.'" Cuddy v. A & E Mech., Inc., 53

Mass. App. Ct. 901, 901 (2001), quoting Chamberlain v. Barrows,

282 Mass. 295, 299 (1933). While the plaintiff argued that the

$345 payment only partially reimbursed her for the extra costs

she incurred from the cross-metering, the record reflects that

the defendant offered the payment as full reimbursement for the

cross-metering charges, and the plaintiff accepted the payment

with this understanding. See Wong v. Paisner, 14 Mass. App. Ct.

923, 924 (1982) ("acceptance and deposit of a check offered in

full payment of a disputed claim constituted an accord and

satisfaction and bar[red] an attempt to collect any balance

outstanding"). See also Malave v. Carney Hosp., 170 F.3d 217,

222 (1st Cir. 1999) ("accord and satisfaction requires a

voluntary, mutually assented to exchange of money for a

release").

The plaintiff also argues that the judge erred in his

calculation of attorney's fees by undercounting the number of

hours the plaintiff's attorney spent working on the action. We

review an award of attorney's fees for abuse of discretion. See

WHTR Real Estate Ltd. Partnership v. Venture Distrib., Inc., 63

Mass. App. Ct. 229, 235 (2005). Here, the plaintiff has not

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offered a sufficient reason to suggest the judge abused his

discretion, particularly given that the judge took note of the

plaintiff's billing records and reduced the award given by the

magistrate. See Blake v. Hometown America Communities, Inc.,

486 Mass. 268, 284-285 (2020). As such, we decline to disturb

the judge's award of attorney's fees where the judge used the

lodestar method to identify the number of hours reasonably spent

by the plaintiff's attorney on the chapter 93A claim and

determined the hourly rate to be reasonable. See Siegel v.

Berkshire Life Ins. Co., 64 Mass. App. Ct. 698, 706 (2005).

2. Due process. The plaintiff also asserts multiple

arguments concerning her right to due process. Specifically,

the plaintiff claims that the judge did not give the plaintiff a

chance to address statements made by the defendant that were

"false, hearsay, or misleading." However, the plaintiff does

not identify any specific statements she takes issue with.

Thus, this contention does not rise to the level of appellate

argument, and we decline to consider the point further. See

Mass. R. A. P. 16 (a) (4), as appearing in 481 Mass. 1628

(2019).

The plaintiff also argues that she was not afforded the

opportunity to address the defendant's alleged violation of

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G. L. c. 186, § 15D.2 We review trial management decisions by

judges for abuse of discretion. See Greenleaf v. Massachusetts

Bay Transp. Auth., 22 Mass. App. Ct. 426, 429 (1986). The

plaintiff did not complain of the defendant's alleged failure to

deliver a copy of the new lease in her statement of small

claims, and only briefly mentioned the issue at trial without

providing any legal authority. Upon review of the record, we

conclude that the judge did not abuse his discretion. The

plaintiff was given ample opportunity to present her case, and

the judge acted appropriately as manager of the trial to focus

the parties on the issues reflected in the plaintiff's statement

of small claims and those primarily raised at trial. See

Goldman v. Ashkins, 266 Mass. 374, 380 (1929) ("The trial ought

continuously to march forward without repetitions and without

diversions into collateral or disconnected matters. The judge

ought to be always the guiding spirit and the controlling mind

at a trial in this as in other particulars").

Finally, the plaintiff argues the judge erred in allowing

the defendant's late appeal of the magistrate's judgment. See

G. L. c. 218, § 23 (defendant may file claim of trial by jury

2 The section provides in relevant part: "A lessor who has
agreed orally to execute a lease and obtains the signature of
the lessee shall, within thirty days thereafter, deliver a copy
of said lease to the lessee, duly signed and executed by said
lessor."

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within ten days of receiving adverse small claims judgment). In

granting the defendant an extension and crediting the

defendant's claims that she did not receive the judgment by mail

and subsequently called the clerk's office to remain apprised of

the case, the judge did not abuse his discretion. See Travis v.

McDonald, 397 Mass. 230, 234 (1986) (judge has discretion to

decide small claims case should be heard by jury).3

Judgment affirmed.

By the Court (Henry, Smyth &
Toone, JJ.4),

Clerk

Entered: August 22, 2025.

3 Regarding additional claims raised by the plaintiff, we
conclude that they do not merit further discussion. See
Commonwealth v. Domanski, 332 Mass. 66, 78 (1954) ("Other
points, relied on by the [appellant] but not discussed in this
opinion, have not been overlooked. We find nothing in them that
requires discussion").

4 The panelists are listed in order of seniority.

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