Blair Galinsky vs. David Segal, March 29, 2010
Landlord Tenant Security Deposit, Counsel Fees, G.L.c. 186 §15B, Exclusion of Documents
Facts
Galinsky brought a G.L.c. 186 §15B action against his former landlord, David Segal to recover his security deposit, as well as treble damages and attorney’s fees. Segal counterclaimed for alleged damage to property, unpaid water and septic bills, lost rent, and other costs. Galinsky had rented a house in Lincoln, MA from Segal, and at the start of the rental had paid him a $3500 security deposit. After Galinsky left the property, Segal made a list of damages and unpaid bills and sent them to Galinsky, not at the forwarding address he left with the post office, but rather by regular mail to the rental property. Galinsky never received this list of alleged damages, which contained no actual evidence of the cost to repair the damages or the damages themselves.
Galinsky and his attorney had written several letters requesting the return of the security deposit, but when Segal did not pay, Galinsky commenced this action 3 months after he moved out.
A pretrial conference was held at which time Galinsky’s attorney served Segal with a request for admissions, and Segal responded that the house had been vacated and he had not paid the security deposit back to Galinsky within thirty days. At the start of the trial, Galinsky’s new lawyer filed a motion in limine to prohibit the introduction of Segal’s damage list because it had not been received by the discovery deadline. The trial judge agreed and excluded the damage list.
There was no error in the judge’s exclusion of the damage list that had not been provided by the discovery deadline. Mass R. Civ. P. 37(b)(2)(B) gives the judge the express authority to prohibit the disobedient party from introducing designated matters into evidence. The judge’s decision was not arbitrary, capricious, whimsical, or idiosyncratic, and thus his discretion was not abused. The court also said even if the judge’s decision was unjust, because Segal’s damage list was fatally defective under G.L.c. 186, §15B(4)(iii), there would have been no reversible error.
Security Deposit
Segal forfeited his right to retain any portion of the security deposit for any reason because he failed to provide Galinsky with an itemized list of damages that was sufficiently detailed including written evidence of the damages and estimates or bills and invoices for repairs. The court also found that section 15(B)7 states that if the lessor fails to make a timely return of the security deposit within thirty days, the tenant shall be awarded 3 times the amount of such security deposit or balance due thereon. Thus because it was the defendant’s failure to return the security deposit which triggered the treble damages penalty, the admission of the damage list would not have changed the prescribed outcome.
Attorney’s Fee
The award of attorney’s fees of around $11,000 dollars was found to be reasonable, especially because the judge excluded duplicate time as well as time dedicated to an attached real estate request, and reduced the hours and then assessed a reasonable fee for each of Galinsky’s attorneys. The fact that the fees cost more than the security deposit does not automatically make the fee unreasonable, because what constitutes a reasonable fee is solely within the judge’s discretion.
-Prepared by AEK
-Prepared by AEK
