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14-P-1010 Appeals Court

DIANE SAIA1 vs. BAY STATE GAS COMPANY.

No. 14-P-1010.

Suffolk. April 15, 2015. - December 15, 2015.

Present: Cohen, Wolohojian, & Maldonado, JJ.

Massachusetts Retail Instalment Sales Act. Massachusetts 

Consumer Credit Cost Disclosure Act. Consumer Protection 

Act, Class action. Practice, Civil, Summary judgment.

Contract, Lease of equipment.

Civil action commenced in the Superior Court Department on 

November 2, 2010. 

After review by this court, 81 Mass. App. Ct. 1127 (2012), 

the case was heard by Janet L. Sanders, J., on motions for 

summary judgment.

Valeriano Diviacchi for the plaintiff.

J. Christopher Allen, Jr. (Troy Lieberman with him) for the 

defendant.

MALDONADO, J. The plaintiff appeals from a judgment of 

dismissal contending, as she did below, that a transaction 

 

1 Individually and as a representative of other persons 

similarly situated.
2

involving the lease of a water heater was actually a credit sale 

in disguise, and, consequently, that the defendant's failure to 

make certain required disclosures amounted to common-law 

misrepresentation and a violation of G. L. c. 93A. Guided by 

Silva v. Rent-A-Center, Inc., 454 Mass. 667 (2009) (Silva), a 

Superior Court judge concluded that the transaction at issue did 

not meet the definition of either a "credit sale" under the 

Consumer Credit Cost Disclosure Act (CCCDA), G. L. c. 140D, § 1, 

or a "retail installment sale agreement" under the Retail 

Instalment Sales and Services Act (RISSA), G. L. c. 255D, § 1, 

and, accordingly, granted summary judgment in favor of the 

defendant. We agree and affirm. 

Background. In July, 2010, the plaintiff, Diane Saia,

entered into an agreement with the defendant, Bay State Gas 

Company (Bay State), for the installation of a new water heater 

at her home in Longmeadow. The plaintiff signed a document 

entitled "Appliance Lease Agreement," which obligated her to pay 

$28.16 per month for three years for use of a water heater. 

The total lease payments for the three-year "minimum term" 

amounted to $1,013.76. That amount combined with a $220 upfront 

installation fee brought the plaintiff's total obligation under 

the agreement to $1,233.76. At the end of the minimum term,

both the plaintiff and the defendant could cancel the lease at 

any time upon a thirty-day written notice. Absent the written 
3

cancellation notice, the lease could continue indefinitely. The 

plaintiff was also given the option to purchase the water heater 

at any time during the lease (including within the minimum 

term). Under this buyout option, the purchase price was the 

greater of two amounts: (1) the sum of one-half of the paid 

lease payments subtracted from a "total installed price" of 

$1,510.87,2 or (2) $75. After making thirteen lease payments 

totaling $366.08, the plaintiff chose to exercise the purchase 

option and paid an additional $1,381.66 pursuant to the contract 

buyout formula.3 Adding together the lease payments, the

upfront installation fee, the buyout price, and the sales tax, 

the plaintiff spent a total of $1,967.74 to take ownership of

the water heater. 

On November 10, 2010, the plaintiff filed a four-count 

amended class action complaint asserting misrepresentation 

(Count I), violations of G. L. c. 93A (Count II), unjust 

enrichment (Count III), and seeking rescission on the basis that

 

2 While not defined in the written agreement, the total 

installed price reflected the wholesale cost of the heater plus 

a markup, the labor costs for installation, and the defendant's 

operating and maintenance costs. The price to purchase the 

water heater from the defendant upfront instead of leasing it 

would have been similar to the "total installed price."

3 Applying the buyout formula, the total rental payments of 

$366.08 were divided by two (one half of the total lease 

payments paid to date). The resulting figure of $183.04 was 

then subtracted from the total installed price of $1,510.87 for 

a resulting buyout purchase price of $1,327.83, to which $53.83 

in sales tax was added for a sum total of $1,381.66.
4

the defendant had violated G. L. c. 93, § 48 (Count IV). A 

Superior Court judge dismissed the entire complaint for failure 

to state a claim pursuant to Mass.R.Civ.P 12(b)(6), 365 Mass. 

754 (1974). This court, in an unpublished decision pursuant to 

Appeals Court Rule 1:28, affirmed the dismissal of counts III 

and IV and reversed the dismissal of the remaining claims which, 

resting on the CCCDA and the defendant's failure to disclose 

interest charges, alleged common-law misrepresentation and a 

violation of G. L. c. 93A. Saia v. Bay State Gas Co., 81 Mass. 

App. Ct. 1127 (2012) (Saia I).

4 Following remand on the 

reinstated counts, the judge entered summary judgment in favor 

of the defendant on the plaintiff's amended complaint, and the 

plaintiff timely filed her appeal.

Summary judgment. In reviewing a grant of summary 

judgment, we consider the evidence in the light most favorable 

to the nonmoving party and determine whether "all material facts 

have been established and the moving party is entitled to a

judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins.

Co., 410 Mass. 117, 120 (1991). "We may consider any ground 

supporting the judgment." Ibid.

 

4 In the plaintiff's amended complaint and in the appeal 

that followed, the plaintiff rested her claim on an alleged

violation of the CCCDA. There was no claim under RISSA. 

Accordingly, in Saia I, we did not consider, as we do now, the 

effect of RISSA and the Supreme Judicial Court's decision in

Silva (interpreting the application of only the RISSA statute to 

a lease agreement) to her claim.
5

The plaintiff contends the transaction at issue was 

actually a disguised credit sale or a retail instalment sale 

agreement and, as a result, that the defendant failed to make 

certain disclosures required by the CCCDA and RISSA.5 The 

plaintiff asserts this failure amounts to common-law 

misrepresentation and a violation of G. L. c. 93A. The first 

step in our inquiry, therefore, is to determine whether the 

transaction meets the definition of a credit sale under the 

CCCDA or a retail instalment sale agreement under the RISSA. 

The CCCDA defines a credit sale as:

"any contract in the form of a bailment or lease if the 

bailee or lessee contracts to pay as compensation for use a 

sum substantially equivalent to or in excess of the 

aggregate value of the property and services involved and 

it is agreed that the bailee or lessee will become, or for 

no other or a nominal consideration has the option to 

become, the owner of the property upon full compliance with 

his obligations under the contract."

G. L. c. 140D, § 1, inserted by St. 1981, c. 733, § 2. The 

RISSA similarly defines a retail instalment sale agreement as:

"any contract in the form of a bailment or lease if the 

bailee or lessee contracts to pay as compensation for use a 

sum substantially equivalent to or in excess of the value 

 

5 Following remand, the plaintiff raised RISSA in a motion 

seeking partial summary judgment. In granting summary judgment

for the defendant, the motion judge addressed the plaintiff's 

claims under RISSA both because the plaintiff raised RISSA in 

her motion, and because RISSA spells out the same disclosure 

requirements as those specified in the CCCDA. See G. L. 

c. 255D, § 31 (indicating that transactions subject to RISSA are 

also subject to CCCDA). For the same reasons, we also consider

the application of RISSA.
6

of goods involved and it is agreed that the bailee or 

lessee will become, or for no other or for a nominal 

consideration has the option to become the owner of the 

goods upon full compliance with his obligations under the 

contract."

G. L. c. 255D, § 1, as appearing in St. 1981, c. 733, § 14. The 

operational language of the two statutes is virtually 

indistinguishable, differing only in the manner in which each 

describes the object of the agreement. The object of the 

agreement in a credit sale is defined as "property and 

services," while it is defined simply as "goods" for a retail 

instalment sales agreement. We nevertheless address each 

statute separately.

In Silva, the Supreme Judicial Court considered a certified 

question from a judge of the United States District Court for 

the District of Massachusetts concerning whether a "consumer 

lease agreement" for a laptop computer was actually a retail 

instalment sale agreement in disguise and, therefore, subject to 

RISSA regulation. Silva, supra at 668. Emphasizing that both 

requirements of the statute had to be met, the court stated that 

in order for a transaction to be a retail instalment sale 

agreement, the contract must both "obligate the consumer to pay 

an amount substantially equivalent to, or in excess of [the 

value of] the goods involved and the consumer must have the 

option to become the owner for no other or nominal consideration 
7

on full compliance with his or her contractual obligations." 

Id. at 673 n.11. In evaluating a contract under this two-prong 

test, the court directs that we look "to the nature of the 

contract at the time it was formed, focusing on the parties' 

contractual rights and obligations at that point. See 4 J.J. 

White & R.S. Summers, Uniform Commercial Code § 30-3, at 19 (5th 

ed. 2002)." Id. at 674. The court also observed that 

"application of a regulatory framework does not depend on the 

economics of hindsight." Ibid. Applying this analytical 

framework to the lease agreement into which the plaintiff 

entered here, we conclude the agreement with Bay State does not 

qualify as a retail instalment agreement under RISSA.

While it appears that there may be at least a colorable 

claim that the lease agreement at issue here meets the first 

prong of the test identified in Silva, supra at 673 n.11,6 we 

 

6 Under her lease agreement, the plaintiff was obligated to 

pay a monthly rental fee, including tax, of $28.16 for a minimum 

term. At the end of the minimum three-year lease term, the 

plaintiff would have been obligated to have paid $1,013.76 in 

rental fees, plus an additional upfront installation fee of $220 

for a total contract price of $1,233.76, inclusive of sales tax. 

This figure amounts to about seventy-five per cent of the stated 

$1510 installed price, which is significantly higher than the 

minimal one-week $39 payment required in Silva, supra. Plus, 

the plaintiff asserts that $1510 is an inflated price for a 

water heater. According to the plaintiff, the actual price of 

an installed water heater is $1200, and the defendant does not 

dispute that there is arguably a factual question regarding the 

installed price, which, according to the plaintiff, results in a 

sum "substantially equivalent to or in excess of the value" of 

the water heater. See Silva, supra at 674. Without conceding 
8

nevertheless agree with Bay State that the plaintiff's claim 

fails on the second prong. In order for the plaintiff to take 

ownership of the water heater at the end of her three-year lease 

term, she would have had to make an additional payment of 

$1,003.99 -- the $1510 installed price minus $506.88 (one-half

of $1,0137) plus tax. That payment, which is nearly two thirds

of the $1,510.87 installed price, is, in the words of the 

statute, neither "no other" nor "nominal consideration" and, 

accordingly, precludes a conclusion that the lease agreement at 

issue here constitutes a retail instalment sale agreement under 

RISSA.8 See Silva, supra at 674.

 

that the first prong is satisfied by the three-year lease term 

at issue here, the defendant contends that even if that prong 

was satisfied, the plaintiff's claim fails on the second prong. 

Ibid.

7 Three years of monthly rental payments at $28.16.

8 Counterintuitively, the transaction may have qualified as

an instalment sale had the payoff amount been less. In other 

words, by charging more money, i.e., structuring the deal such 

that only a small portion of the lease payments was credited 

toward the purchase price, the transaction was potentially 

transformed from a sale to a lease, and fell outside of RISSA's 

consumer protection reach, even though considering the upfront 

payment, lease payments, and payoff payment, the consumer would 

have paid approximately forty-six per cent above the $1,510 

installed price to take ownership of the water heater. Saia 

contends that because the agreement involves a long-term lease 

of a permanent household fixture, which by its very nature 

results most often in purchase, extension, or renewal of the 

lease at the end of the three years, RISSA applies. Stated that 

way, however, while the agreement may appear to disfavor 

consumers in that regard, she points to no wording in the 

statute or any case law that draws the distinctions she urges.
9

Bay State now urges that we apply the reasoning of Silva to 

the plaintiff's claim under the CCCDA. As noted, Silva

addressed the definition of a retail instalment sale agreement 

under RISSA. We agree that the identical language used by the 

two statutes in defining their respective sales transactions 

invites application of the same analysis. That approach was 

recently acknowledged by the United States Court of Appeals for 

the First Circuit in a similar case involving a water heater 

lease. See Philibotte v. Nisource Corporate Servs. Co., 793 

F.3d 159, 167 (1st Cir. 2015). The court noted, however, that 

the Supreme Judicial Court had not yet spoken to the application 

of Silva in the CCCDA context. Id. at 166. Instead, the court 

reasoned that the plaintiff's lease in that case failed to meet 

the first prong of the CCCDA definition for a credit sale and.

thus, the court did not address whether Silva required the same 

result. See Philibotte v. Nisource Corporate Servs. Co., supra

at 167 ("We need not, and so should not, reach that issue 

because Philibotte's claim plainly fails to meet the first prong 

of the CCCDA definition").

In light of Philibotte v. Nisource Corporate Servs. Co., 

supra, and the arguments raised in this appeal, we are now 

persuaded that Silva's interpretation of the definition of a 

retail installment sale under RISSA should apply as well to the 

CCCDA's definition of a credit sale. First, the two statutes 
10

are expressly connected pursuant to § 31 of RISSA, as appearing 

in St. 1981, c. 733, § 23, which provides that "[a] transaction 

subject to the provisions of this chapter shall also be subject 

to the provisions of chapter one hundred and forty D . . . ."9 

We interpret this to mean that the statutes should be given the 

same consideration, so as to achieve their common goal. See 

generally, May v. SunTrust Mort., Inc., 467 Mass. 756, 759 

(2014), quoting from Fidler v. Central Coop. Bank, 226 B.R. 734, 

736 (Bankr. D. Mass. 1998) (CCCDA designed "to assure a 

meaningful disclosure of credit terms" and protect against 

inaccurate and unfair credit billing); Wilkins, The New 

Massachusetts Retail Installment Sales Act, 51 Mass. L.Q. 205, 

206-208 (1966) (RISSA to provide substantial protection to 

consumers, including the disclosure of finance charges on 

obligations paid in more than one instalment).

Furthermore, the two statutes share the same overriding 

purpose and, with respect to the relevant definitions, nearly 

identical language. Therefore, they should be treated in a 

consistent manner.10 That the two statutes are aimed at somewhat 

 

9 Although RISSA was enacted in 1966, § 31 was amended in 

1981 to make reference to c. 140D, when the latter went into 

effect. See St. 1981, c. 733, § 23.

10 A similar approach has been adopted with respect to 

identical language in the disclosure requirements of the CCCDA 

and the Federal Truth in Lending Act (TILA), 15 U.S.C. § 1635. 

See, e.g., May v. SunTrust Mort., Inc., 467 Mass. 756, 759 
11

different aspects of consumer credit transactions reflects, we 

believe, the historical development of consumer credit 

legislation generally, rather than a legislative intent that 

their virtually identical provisions be treated differently. 

See Curran, Legislative Controls as a Response to ConsumerCredit Problems, 8 B.C. Indus. & Com. L. Rev. 409, 419 (1967) 

(as a result of piecemeal legislation responding to changes in 

the consumer-credit market, "[w]hen regulation of the same 

subject matter occurs in acts that apply to different classes of 

arrangements, similarity of treatment may be observed").

For these reasons, in our view, application of Silva's 

RISSA analysis to the identical operational language in CCCDA's 

definition of a credit sale compels the same result. As noted 

in our discussion under RISSA, we understand full compliance 

with contractual obligations, under the second prong of the 

CCCDA's definition, to mean completion of the three-year lease 

term, irrespective of the option to renew. Since the plaintiff

could not become the owner of the water heater for nominal 

consideration at the end of the three-year term, the lease 

agreement did not constitute a credit sale under the CCCDA, and 

Bay State's alleged failure to provide the plaintiff with the 

 

(2014) (interpreting CCCDA consistently with TILA, upon which 

the State statute was modeled); Rodrigues v. Members Mort. Co., 

323 F. Supp. 2d 202, 210 (D. Mass. 2004) (essentially identical 

disclosure requirements of the CCCDA and TILA "do not require 

separate analysis").
12

disclosures required under the CCCDA did not constitute a 

violation of c. 93A.

Because the parties' transaction involving the water heater 

was neither a credit sale nor a retail instalment sale 

agreement, Bay State was not obligated to make disclosures 

pursuant to the CCCDA or RISSA.11 The lack of statutory 

disclosure, therefore, cannot serve as the basis for common-law 

misrepresentation or c. 93A claims. We affirm the entry of 

summary judgment on that basis.

Other matters. a. Unreviewable claims. The plaintiff 

also appeals from what she claims is the judge's denial of her 

motion to further amend the complaint. On the record before us, 

however, there is no indication that the judge acted on this 

motion. Without a ruling on the motion, there is no disposition

for us to review. Marcil v. John Deere Indus. Equip. Co., 9 

Mass. App. Ct. 625, 632 (1980).

12 

 

11 The Philibotte case involved the same plaintiff's counsel

and defense counsel, as well as the same defendant, as in this 

case. (Nisource was described as doing business as Bay State 

Gas Co. Philibotte v. Nisource Corporate Servs. Co., supra at 

160.) It also involved the same general allegations that a 

transaction involving a water heater was actually a disguised 

credit sale and that the defendant failed to make the required 

disclosures. Id. at 161.

12 The plaintiff also seeks to appeal from the judge's 

denial of her motion for a preliminary injunction. In view of 

our disposition of the case on the merits, we need not address 

this claim.
13

b. Motion to vacate. The plaintiff appeals from the 

judge's denial of a motion to vacate the dismissal of her unjust 

enrichment claim, which dismissal we affirmed in Saia I. The 

plaintiff cites no authority, and we know of none, that 

authorizes the Superior Court to effectively overrule our 

decision. The plaintiff mistakenly cites the "law of the case" 

doctrine, see Peterson v. Hopson, 306 Mass. 597, 601-602 (1940),

which has no application in the circumstances presented here. 

c. Dismissal of recission claim. Finally, we also reject 

the plaintiff's claim that the judge misinterpreted our decision 

in Saia I by declining to consider her G. L. c. 93, § 48,

claims. In Saia I we expressly affirmed the dismissal of the 

plaintiff's claim for rescission of the agreement under G. L. 

c. 93, § 48, and the judge did not err in so concluding.

Judgment affirmed.