TEJ SHARMA v. TRUSTEES OF ANDOVER GARDENS CONDOMINIUM TRUSTS & Another.

• Court: Massachusetts Appeals Court
• Decided: May 2, 2023
• Docket: 22-P-0743
• Status: Unpublished

Opinion

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

22-P-743

TEJ SHARMA

vs.

TRUSTEES OF ANDOVER GARDENS CONDOMINIUM TRUSTS & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Tej Sharma, filed a complaint in the

Superior Court seeking an injunction to prevent the defendant

trustees from conducting a lien foreclosure sale of the

plaintiff's once owned condominium in Andover. A judge

dismissed the plaintiff's complaint and he appeals the

dismissal. We affirm.

Background. The plaintiff purchased the property in 1984

and, beginning in June 2016, he stopped paying the common area

expenses associated with the condominium as required by the

condominium rules and G. L. c. 183A, § 6. After many delinquent

payment notices were sent to the plaintiff, the defendant filed

1 Domenic S. Terranova; we are informed that Terranova "passed away on September 20, 2022." As is our usual practice, we take the parties' names as they appear in the plaintiff's operative complaint. an action in the District Court to enforce a lien against the

condominium for the unpaid common area expenses. The plaintiff

never answered or appeared in the District Court to defend the

action. A default entered against the plaintiff and, in July

2017, the District Court issued an order for the sale of the

condominium; judgment entered against the plaintiff for the

unpaid common area expenses, court costs, and attorney's fees.

Pursuant to the District Court order and judgment, the defendant

scheduled a lien foreclosure sale of the condominium. The

plaintiff then filed the present case in the Superior Court.

Thereafter, the plaintiff made numerous requests in the

Superior Court for injunctive relief to prevent the sale. A

judge in the Superior Court denied all of the plaintiff's

requests and, in April 2018, made an endorsement denying the

plaintiff's request to appoint a receiver, stating that there

was no injunctive relief, restraining order, or preliminary

injunction preventing the sale of the condominium; the judge

ordered all claims and counterclaims dismissed in thirty days.2

The defendant then completed the foreclosure sale. The

plaintiff did not exercise his right to redeem during the ninety

days following the sale, as provided by G. L. c. 254, § 20. On

2 Notwithstanding this April endorsement, judgment dismissing the plaintiff's claims never entered.

2 June 22, 2022, the Superior Court judge dismissed all claims

asserted against the defendants. This appeal followed.

Discussion. General Laws c. 254, § 5, states that "a lien

established under . . . section 6 of chapter 183A shall be

enforced by a civil action brought in the superior court for the

county where such land lies or in the district court in the

judicial district where such land lies." The defendant complied

with the statute and brought the lien enforcement action in the

appropriate District Court. Pursuant to Mass. R. Civ. P.

13 (a), as amended, 423 Mass. 1405 (1996), any defense that the

plaintiff wanted to bring regarding that lien enforcement action

should have been filed in the District Court where the defendant

filed its action. See Columbia Chiropractic Group, Inc. v.

Trust Ins. Co., 430 Mass. 60, 63 (1999) ("[a]ll claims arising

out of the same facts should be heard, where possible, in the

same proceeding"). Thus, "failure to plead a compulsory

counterclaim bars a party from bringing a later independent

action on that claim." Mancuso v. Kinchla, 60 Mass. App. Ct.

558, 563 (2004). The plaintiff could not assert any claims in

the Superior Court that he was required to assert as compulsory

counterclaims in the District Court. Accordingly, we discern no

error in the judgment of dismissal.

Attorney's fees. We also allow the defendant's motion for

an award of its reasonable appellate attorney's fees. The law

3 on compulsory counterclaims is well settled and the plaintiff

could have had "no reasonable expectation of a reversal." Avery

v. Steele, 414 Mass. 450, 455 (1993) (quotation omitted). As

such, we deem the plaintiff's appeal frivolous and award the

defendant its reasonable appellate attorney's fees and costs.3

Judgment affirmed.

By the Court (Ditkoff, Hand & D'Angelo, JJ.4),

Clerk

Entered: May 2, 2023.

3 In accordance with the procedure specified in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the defendant may, within fourteen days of the date of the rescript, submit with the clerk of the Appeals Court an application for attorney's fees and costs along with appropriate supporting materials. The plaintiff shall have fourteen days thereafter to file a response. See Fariello v. Zhao, 101 Mass. App. Ct. 566, 573 n.5 (2022). 4 The panelists are listed in order of seniority.