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
25-P-838
NIKLAUS V. BRINK1 & another2
vs.
BARBARA E. HUNT.3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case arises from a long-running neighbor dispute
between the plaintiffs, Niklaus V. Brink and Lily Kim Brink,4 and
the defendant, Barbara E. Hunt. The Brinks sued Hunt for breach
of fiduciary duty, among other claims, alleging that she
breached her obligations to the 27-29 County Street Condominium
Trust (trust) in several ways. Hunt raised numerous
1Individually and as co-trustee of 27-29 County Street Condominium Trust.
2 Lily Kim Brink.
3Individually and as co-trustee of 27-29 County Street Condominium Trust.
4Because the plaintiffs have the same surname, we will refer to Niklaus Brink individually by his first name. We will refer to the plaintiffs together as "the Brinks." counterclaims including, as relevant to this appeal, that
Niklaus misappropriated condominium funds and that Hunt was
entitled to termination of an implied easement that the Brinks
have over her exclusive-use areas. After a jury-waived trial, a
Superior Court judge issued a detailed written decision
concluding that Hunt breached her fiduciary duty to the trust,
warranting her removal as co-trustee, and awarding Niklaus his
attorney's fees in his capacity as co-trustee. The judge also
rejected Hunt's counterclaim for misappropriation of funds and
declined to terminate the Brinks' implied easement. Hunt
appeals from the judgment and from the judge's denial of her
second motion to reconsider the judgment.5 We affirm.
Background. In 2010 Hunt filed a Superior Court action
against Niklaus (first action). The main issues raised in the
first action were the dividing line between areas of exclusive
use in the backyard, whether Niklaus had an easement to pass
over Hunt's exclusive-use areas to access his half of the
garage, and whether a third trustee should be appointed to
resolve disputes such as those over common-area maintenance.
After a jury-waived trial, judgment entered in 2012. The
5 After the judge allowed in part Hunt's first motion to reconsider, an amended judgment entered, from which Hunt did not file a timely notice of appeal. Regardless, Hunt's notices of appeal from the original judgment and from the denial of her second motion to reconsider are sufficient to bring her arguments properly before us.
2 judgment provided, among other things, that a site plan
introduced at trial (Kelley plan) governed the dividing line
between the exclusive-use areas in the backyard and that Niklaus
had an easement to pass over Hunt's exclusive-use areas to
access the garage. Separately, the Brinks and Hunt entered into
two agreements (agreements): a "Grounds Keeping Schedule,"
which set forth the parties' responsibilities regarding yard
maintenance, and a "Proposal for Operating Procedures," which
governed how the parties would communicate with each other.
In 2016 Hunt declared to the Brinks that she was
terminating the agreements. Although the Brinks objected, from
that point on, Hunt no longer complied with the agreements. For
instance she failed to clear snow and cared only for the portion
of the front yard in front of her condominium. Hunt's behavior
also became increasingly hostile toward the Brinks. She
destroyed vegetation planted by the Brinks in the front yard and
cut flowers from the common-area flower bed, and, when the
Brinks repaired the flower bed, Hunt pulled out the flowers and
deposited the debris in their walkway. In addition, Hunt sent
the Brinks harassing and abusive letters, which used insulting
and derogatory language and contained false allegations of
criminal conduct. Hunt also installed a fence running through
the front yard, "effectively creat[ing] a four-foot-high locked
'pen' in the front yard directly in front of her unit."
3 In March 2021 the Brinks filed this action, seeking removal
of Hunt as co-trustee of the trust and appointment of a third-
party proxy to act as co-trustee, along with other injunctive
relief and attorney's fees.
Discussion. On review of a judgment after a bench trial,
we review the judge's findings of fact for clear error and
conclusions of law de novo. See Martin v. Simmons Props., LLC,
467 Mass. 1, 8 (2014). As we understand Hunt's brief, she
challenges the judge's conclusion that she breached her
fiduciary duty to the trust; the judge's refusal to terminate
the easement established by the 2012 judgment; the judge's
conclusion, related to Hunt's counterclaim for misappropriation
of funds, that the trust document did not require the Brinks to
restore a collapsed chimney to its original state; and the award
of attorney's fees. Any other arguments have not been
adequately briefed and are thus waived. See Mass. R. A. P.
16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
1. Breach of fiduciary duty. The judge concluded that
Hunt breached her fiduciary duty to the trust in three ways.
First, the judge cited Hunt's failure to comply with the
agreements. Although Hunt does not contest that she failed to
comply, she argues that the agreements are unenforceable because
(1) they were not recorded at the registry of deeds; and (2) she
did not sign them. Hunt has waived the first argument because
4 she fails to cite any legal authority to support the proposition
that an agreement that does not affect any ownership interests
is unenforceable unless it is recorded at the registry of deeds.
See Mass. R. A. P. 16 (a) (9) (A). As to the second argument,
the judge found that, although the judge in the first action
declined to incorporate the agreements into the 2012 judgment,
he asked whether the parties signed them freely and voluntarily
and whether they intended to be bound by them, "to which all
parties -- under oath -- replied in the affirmative." Hunt has
not shown that this finding is clearly erroneous. The
agreements bear the parties' signatures, and the Brinks
testified at trial in this case that the parties agreed under
oath during the 2012 proceedings to be bound. The judge
credited this testimony, and we defer to that determination.
See Robert & Ardis James Found. v. Meyers, 474 Mass. 181, 186
(2016).
Second, the judge concluded that Hunt breached her
fiduciary duty by unilaterally declaring part of the front yard
to be her exclusive-use area and constructing a fence around it.
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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
25-P-838
NIKLAUS V. BRINK1 & another2
vs.
BARBARA E. HUNT.3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case arises from a long-running neighbor dispute
between the plaintiffs, Niklaus V. Brink and Lily Kim Brink,4 and
the defendant, Barbara E. Hunt. The Brinks sued Hunt for breach
of fiduciary duty, among other claims, alleging that she
breached her obligations to the 27-29 County Street Condominium
Trust (trust) in several ways. Hunt raised numerous
1Individually and as co-trustee of 27-29 County Street Condominium Trust.
2 Lily Kim Brink.
3Individually and as co-trustee of 27-29 County Street Condominium Trust.
4Because the plaintiffs have the same surname, we will refer to Niklaus Brink individually by his first name. We will refer to the plaintiffs together as "the Brinks." counterclaims including, as relevant to this appeal, that
Niklaus misappropriated condominium funds and that Hunt was
entitled to termination of an implied easement that the Brinks
have over her exclusive-use areas. After a jury-waived trial, a
Superior Court judge issued a detailed written decision
concluding that Hunt breached her fiduciary duty to the trust,
warranting her removal as co-trustee, and awarding Niklaus his
attorney's fees in his capacity as co-trustee. The judge also
rejected Hunt's counterclaim for misappropriation of funds and
declined to terminate the Brinks' implied easement. Hunt
appeals from the judgment and from the judge's denial of her
second motion to reconsider the judgment.5 We affirm.
Background. In 2010 Hunt filed a Superior Court action
against Niklaus (first action). The main issues raised in the
first action were the dividing line between areas of exclusive
use in the backyard, whether Niklaus had an easement to pass
over Hunt's exclusive-use areas to access his half of the
garage, and whether a third trustee should be appointed to
resolve disputes such as those over common-area maintenance.
After a jury-waived trial, judgment entered in 2012. The
5 After the judge allowed in part Hunt's first motion to reconsider, an amended judgment entered, from which Hunt did not file a timely notice of appeal. Regardless, Hunt's notices of appeal from the original judgment and from the denial of her second motion to reconsider are sufficient to bring her arguments properly before us.
2 judgment provided, among other things, that a site plan
introduced at trial (Kelley plan) governed the dividing line
between the exclusive-use areas in the backyard and that Niklaus
had an easement to pass over Hunt's exclusive-use areas to
access the garage. Separately, the Brinks and Hunt entered into
two agreements (agreements): a "Grounds Keeping Schedule,"
which set forth the parties' responsibilities regarding yard
maintenance, and a "Proposal for Operating Procedures," which
governed how the parties would communicate with each other.
In 2016 Hunt declared to the Brinks that she was
terminating the agreements. Although the Brinks objected, from
that point on, Hunt no longer complied with the agreements. For
instance she failed to clear snow and cared only for the portion
of the front yard in front of her condominium. Hunt's behavior
also became increasingly hostile toward the Brinks. She
destroyed vegetation planted by the Brinks in the front yard and
cut flowers from the common-area flower bed, and, when the
Brinks repaired the flower bed, Hunt pulled out the flowers and
deposited the debris in their walkway. In addition, Hunt sent
the Brinks harassing and abusive letters, which used insulting
and derogatory language and contained false allegations of
criminal conduct. Hunt also installed a fence running through
the front yard, "effectively creat[ing] a four-foot-high locked
'pen' in the front yard directly in front of her unit."
3 In March 2021 the Brinks filed this action, seeking removal
of Hunt as co-trustee of the trust and appointment of a third-
party proxy to act as co-trustee, along with other injunctive
relief and attorney's fees.
Discussion. On review of a judgment after a bench trial,
we review the judge's findings of fact for clear error and
conclusions of law de novo. See Martin v. Simmons Props., LLC,
467 Mass. 1, 8 (2014). As we understand Hunt's brief, she
challenges the judge's conclusion that she breached her
fiduciary duty to the trust; the judge's refusal to terminate
the easement established by the 2012 judgment; the judge's
conclusion, related to Hunt's counterclaim for misappropriation
of funds, that the trust document did not require the Brinks to
restore a collapsed chimney to its original state; and the award
of attorney's fees. Any other arguments have not been
adequately briefed and are thus waived. See Mass. R. A. P.
16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
1. Breach of fiduciary duty. The judge concluded that
Hunt breached her fiduciary duty to the trust in three ways.
First, the judge cited Hunt's failure to comply with the
agreements. Although Hunt does not contest that she failed to
comply, she argues that the agreements are unenforceable because
(1) they were not recorded at the registry of deeds; and (2) she
did not sign them. Hunt has waived the first argument because
4 she fails to cite any legal authority to support the proposition
that an agreement that does not affect any ownership interests
is unenforceable unless it is recorded at the registry of deeds.
See Mass. R. A. P. 16 (a) (9) (A). As to the second argument,
the judge found that, although the judge in the first action
declined to incorporate the agreements into the 2012 judgment,
he asked whether the parties signed them freely and voluntarily
and whether they intended to be bound by them, "to which all
parties -- under oath -- replied in the affirmative." Hunt has
not shown that this finding is clearly erroneous. The
agreements bear the parties' signatures, and the Brinks
testified at trial in this case that the parties agreed under
oath during the 2012 proceedings to be bound. The judge
credited this testimony, and we defer to that determination.
See Robert & Ardis James Found. v. Meyers, 474 Mass. 181, 186
(2016).
Second, the judge concluded that Hunt breached her
fiduciary duty by unilaterally declaring part of the front yard
to be her exclusive-use area and constructing a fence around it.
The judge found that the front yard was common area based on the
Kelley plan, the fact that the parties had treated it as common
area for years, and Hunt's admission in a prior litigation that
she considered the front yard to be common area. Again, Hunt
has not shown this finding to be clearly erroneous. Contrary to
5 her contention, the judge was not required to credit the opinion
of her expert witness, who opined on direct examination that the
Kelley plan showed that the front yard was divided into
exclusive-use areas.6 This is so even though the Brinks did not
offer their own expert. See Matter of J.D., 97 Mass. App. Ct.
15, 21 (2020) ("[T]he law does not give the opinion of experts
. . . the benefit of conclusiveness, even if there is no
contrary opinion introduced at the trial" [quotations and
citations omitted]). We further reject Hunt's contention that
the judge's finding is precluded by the 2012 judgment. Issue
preclusion does not apply because whether the front yard was
common space or exclusive-use space was not litigated or decided
in the 2012 action. See Petrillo v. Zoning Bd. of Appeals of
Cohasset, 65 Mass. App. Ct. 453, 457 (2006). And to the extent
Hunt invokes claim preclusion, that argument fails if for no
other reason than that she did not construct the fence in the
front yard until 2018. See id. at 458.
Third, the judge concluded that Hunt's "pattern of
insulting, abusive [and] patently offensive conduct" toward the
Brinks constituted a breach of fiduciary duty. Hunt does not
challenge this conclusion or any of the factual findings
6 Notably, on cross-examination, the expert agreed that the Kelley plan could also be interpreted to show the front yard as a common area.
6 underlying it, and so has waived any claim of error with respect
to this part of the judge's decision. See Mass. R. A. P.
16 (a) (9) (A).
2. Implied easement. Hunt's request for termination of
the easement is barred by issue preclusion. As the judge
concluded, and we agree, "[t]he creation of the easement is
settled law where the 2012 judgment recognizing [the easement]
was upheld on appeal." See Petrillo, 65 Mass. App. Ct. at 457.
Hunt raises no argument that the elements of issue preclusion
are not met and so again has waived any claim of error on
appeal. See Mass. R. A. P. 16 (a) (9) (A).
3. Chimney repairs. After a chimney over the Brinks' unit
collapsed, Niklaus used insurance funds to repair it. The judge
rejected Hunt's claim that Niklaus misappropriated the insurance
funds, finding that the necessary work could be completed with
the balance of the funds except for a small amount of overage
that Niklaus agreed to pay. Hunt argues that this was error
because the declaration of trust required the Brinks to restore
the chimney to its original condition and that the judge erred
by not ordering them to do so. This argument fails because
nowhere does the declaration of trust refer to a duty to restore
damaged property to its original condition. The two sections
cited by Hunt require the trust to maintain casualty insurance
and to obtain an annual "appraisal of the full replacement value
7 of the property to be insured." Neither section supports Hunt's
reading of the document.
4. Attorney's fees. The judge awarded attorney's fees to
Niklaus, in his capacity as co-trustee, pursuant to Section 5.24
of the declaration of trust. That section provides that, "[i]n
such case as it is necessary for the Trustees to engage the
services of an attorney, or attorneys, for the purpose of
enforcing against a Unit Owner . . . any provision of . . . the
Declaration of Trust, the Rules and Regulations, or obligations
thereunder . . . , and the Trustees should prevail thereon, said
Unit owner . . . shall be liable for, in addition to any other
liability, the fees and costs of such attorneys in so proceeding
thereto." We disagree with Hunt's contention that this
provision did not authorize the award of fees. Niklaus, as co-
trustee, initiated this action in part to enforce Hunt's
obligations to maintain the common-area property of the trust,
as required by the agreements, and to rectify Hunt's improper
erection of a fence on a common area. The judge did not err by
concluding that Section 5.24 authorized Niklaus to recover his
fees on behalf of the trust.
5. Appellate attorney's fees. The Brinks have requested
an award of their appellate attorney's fees on the ground that
this appeal is frivolous. We agree that the appeal is
frivolous. Accordingly, the Brinks may submit a petition for
8 appellate attorney's fees and costs, together with supporting
documentation, within fourteen days of the date of this
decision. Hunt may have fourteen days to respond. See Fabre v.
Walton, 441 Mass. 9, 10-11 (2004).
Amended judgment dated February 4, 2025, affirmed.
Order dated February 28, 2025, denying second motion to reconsider affirmed.
By the Court (Shin, Ditkoff & Tan, JJ.7),
Clerk
Entered: July 16, 2026.
7 The panelists are listed in order of seniority.