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Appeals court hears dispute over landlordlockout, permits and damages in Mindu Restaurant case
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Summary
The Massachusetts Appeals Court heard arguments in Mindu Restaurant Inc.'s appeal challenging trial findings that a landlordlockout caused spoilage and equipment damage. Attorneys disputed whether permits or an unlawful lockout produced the losses and whether attorneyfees under Chapter 93A were warranted.
The Massachusetts Appeals Court on Tuesday heard arguments in Mindu Restaurant Inc.'s appeal of a Norfolk County judgment that awarded damages after the landlord locked the tenant out of commercial premises.
Attorney Jack P. Milgram, arguing for the landlord-defendant, told the three-justice panel that the record shows municipal permits were required to remove or demolish restaurant kitchen equipment and that those permit issues were central to the dispute. "If an individual or an entity wants to demolish a commercial kitchen, a restaurant kitchen, municipal permits are required," Milgram said, arguing the permit requirement and the timing of permit applications undermine the trial court's findings on damages.
The panel pressed Milgram on whether the permits argument had been presented to the trial court in a way the appeals court could review; a justice noted the appellant had not included a transcript of the preliminary-injunction hearing in the appendix. The bench also asked whether overturning the preliminary injunction would undo contempt sanctions imposed while the injunction was in effect.
Tenant counsel Benjamin Winterhalter, representing the restaurant and its owners, urged the court to affirm. Winterhalter said the injunction was necessary to restore possession and that the landlord's lockout produced spoilage and equipment failures that money alone could not remedy. "The damages were the direct and physical result of the illegal eviction," Winterhalter told the panel, and he defended the trial court's award of attorney's fees under Chapter 93A, arguing fee shifting applies where a willful 93A violation is found.
The justices also questioned whether the appellate record contained contemporaneous billing records or invoices to allow meaningful review of the fee award. Winterhalter acknowledged the appellate filings lacked those invoices and argued the court could decline to entertain a fee challenge on that procedural ground while still affirming the trial court on the merits.
The case was submitted after both sides finished argument. The panel reserved decision.
