Trustees of Denholm Condominium Trust v. Doyle

2012 Mass. App. Div. 24, 2012 Mass. App. Div. LEXIS 2
CourtMassachusetts District Court, Appellate Division
DecidedJanuary 23, 2012
StatusPublished

This text of 2012 Mass. App. Div. 24 (Trustees of Denholm Condominium Trust v. Doyle) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trustees of Denholm Condominium Trust v. Doyle, 2012 Mass. App. Div. 24, 2012 Mass. App. Div. LEXIS 2 (Mass. Ct. App. 2012).

Opinion

MacLeod, J.

The trustees of Denholm Condominium Trust (“trustees”) brought this action under G.Lc. 183A and G.L.c. 254 against Robert G. Doyle, as trustee of Vickers Realty Trust (“Doyle”)-2 The complaint alleges that Doyle is the record owner of unit 535 of the Denholm Condominium in Worcester, Massachusetts, and that he owes $12,500.00 in unpaid common expense assessments, plus interest, late fees, attorney’s fees, and collection costs. The trustees seek to recover the unpaid balance, to establish a priority lien against the unit, and to obtain court authorization for its sale.

On January 20, 2010, after a hearing on the trustees’ motion to compel a deposition and for sanctions, the trial court ordered Doyle to provide the trustees with the name and address of a deponent under Mass. R. Civ. R, Rule 30(b) (6), within thirty days, and warned that failure to comply would result in sanctions under Mass. R. Civ. P, Rule 37(b) (2). Doyle failed to comply and was defaulted on March 15,2010. After an assessment hearing on March 25,2010, the trial court entered a default judgment on April 26, 2010. The court awarded the trustees $31,771.30 in unpaid common expense assessments, special assessments, capital contributions, and interest, and $13,414.10 in attorney’s fees and costs; imposed a priority lien on the unit; and authorized its sale. This appeal followed.

1. Doyle argues that the trial court erred in allowing a spreadsheet into evidence under the business records exception to the hearsay rule. The spreadsheet listed Doyle’s unpaid common expense assessments, special assessments, capital contributions, and interest from October, 2008 to March, 2010, reflecting a total of $31,771.30.

Business records are admissible as hearsay exceptions pursuant to G.L.c. 233, §78. “[A] document is admissible as a business record if the judge finds that it was [25]*25(1) made in good faith; (2) made in the regular course of business; (3) made before the action began; and (4) the regular course of business to make the record at or about the time of the transaction or occurrences recorded.” Beal Bank, SSB v. Eurich, 444 Mass. 813, 815 (2005). A judge’s decision to admit a record implies these requisite findings under G.L.c. 233, § 78. Id. We review that decision for an abuse of discretion. Id., citing Poirier v. Town of Plymouth, 374 Mass. 206, 210 (1978).

Doyle’s first argument, that the spreadsheet should have been excluded because it was based on data from an unknown third party, is without merit. General Laws c. 233, §78 “makes clear that [a business] record is admissible even when the preparer has relied on the statement of others, by providing that ‘personal knowledge by the entrant or maker’ is a matter affecting the weight (rather than the admissibility) of the record.” Wingate v. Emery Air Freight Corp., 385 Mass. 402, 406 (1982), quoting G.L.c. 233, §78. “Although the preparer’s hearsay sources must carry the same indicia of reliability and be shown to have been reported as a matter of business duty or business routine, this can be accomplished by presenting evidence of normal business practice, rather than by producing each speaker.” Beal Bank, SSB, supra at 816, quoting Wingate, supra.

In this case, the testimony of Adam Schuster (“Schuster”), the trustee in charge of financing and collections, provided sufficient evidence to support admitting the spreadsheet as a business record. Schuster testified that the calculations in the spreadsheet for October, 2008 to February, 2010 were based on data received from the condominium’s building manager; that Schuster himself calculated the amounts for March, 2010; and that the spreadsheet accurately represented the amounts owed by Doyle to the trustees. As an employee of the trustees, the building manager had a business duty to provide accurate information. See Wingate, supra at 406. In light of this obligation and the trustee’s reliance, the trial court was warranted in finding that the spreadsheet was made in good faith and in the regular course of business. See Beal Bank, SSB, supra at 818.

Doyle’s additional argument, that the spreadsheet did not meet the requirement that the document must be prepared in advance of litigation, is also without merit. Although the spreadsheet covers October, 2008 to March, 2010 and this action was commenced in June, 2009, Doyle did not object to the admission of the spreadsheet on this ground, arguing only that data in the spreadsheet came from a third party. Therefore, we do not consider this argument on appeal. Blake v. Hendrickson, 40 Mass. App. Ct. 579, 582 (1996), citing Huber v. Huber, 408 Mass. 495, 497 (1990) (party cannot challenge ruling that admitted evidence on grounds not argued at trial), and Burke v. Memorial Hosp., 29 Mass. App. Ct. 948, 949 (1990) (where party objected to evidence on one ground, party cannot raise for first time on appeal another ground for keeping evidence out). See also Household Fuel Corp. v. Hamacher, 331 Mass. 653, 655 (1954) (objection preserved as to entries made in business record after commencement of action where “ [t]he point was brought to the attention of the judge”).

2. Doyle next argues that the trustees failed to prove at the assessment hearing that the common expense assessments, special assessments, capital contributions, [26]*26and interest were properly issued by the trustees under the master deed, declaration of trust, or G.L.c. 183A.

Doyle’s default did not operate “as an absolute confession by the defendant of his liability and of the plaintiffs’ right to recover.” Productora e Importadora de Papel, S.A. de C.V. v. Fleming, 376 Mass. 826, 834 (1978), quoting Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). Rather, even after default, “it remain [ed] for the court to consider whether the unchallenged facts constitute [d] a legitimate cause of action, since a party in default does not admit mere conclusions of law.” Id. at 834-835, quoting 10 C.A. WRIGHT & A.R. MILLER, FEDERAL PRACTICE AND PROCEDURE §2688, at 282 (1973).

In this case, the complaint alleges that Doyle is the record owner of the subject condominium unit; the trustees have assessed Doyle for common expenses and charges in the amount of $12,500.00; Doyle has not paid; and the trustees notified Doyle of the delinquency after sixty days. These facts set out a legitimate cause of action under G.Lc. 183A, §6. Further, having failed to pay the common expense assessments, Doyle could not dispute their legality at the assessment hearing. See Blood v. Edgar’s, Inc., 36 Mass. App. Ct. 402, 410 (1994) (“[A] condominium unit owner may not challenge the legality of a common expense assessment by refusing to pay it.”); Nine Pleasant St. Condominium Trust v. Luttrell, No. 07-P-1201 (Mass. App. Ct. July 3, 2008) (unpublished Rule 1:28 decision) (applying Blood to bar unit owner from contesting legality of assessments and fees during collection action after failing to make payments); Forty-Three Kingston St. Condominium Ass’n v. Bedfordor Ltd. Partnership, No. 05-P-814 (Mass. App. Ct. Aug. 30, 2006) (unpublished Rule 1:28 decision) (same).

3.

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Related

Wingate v. Emery Air Freight Corp.
432 N.E.2d 474 (Massachusetts Supreme Judicial Court, 1982)
Productora E Importadora De Papel v. Fleming
383 N.E.2d 1129 (Massachusetts Supreme Judicial Court, 1978)
Blood v. Edgar's, Inc.
632 N.E.2d 419 (Massachusetts Appeals Court, 1994)
Poirier v. Town of Plymouth
372 N.E.2d 212 (Massachusetts Supreme Judicial Court, 1978)
Linthicum v. Archambault
398 N.E.2d 482 (Massachusetts Supreme Judicial Court, 1979)
Household Fuel Corp. v. Hamacher
121 N.E.2d 846 (Massachusetts Supreme Judicial Court, 1954)
Huber v. Huber
561 N.E.2d 863 (Massachusetts Supreme Judicial Court, 1990)
Berman v. Linnane
434 Mass. 301 (Massachusetts Supreme Judicial Court, 2001)
Beal Bank, SSB v. Eurich
831 N.E.2d 909 (Massachusetts Supreme Judicial Court, 2005)
Hermanson v. Szafarowicz
927 N.E.2d 982 (Massachusetts Supreme Judicial Court, 2010)
Burke v. Memorial Hospital
558 N.E.2d 1146 (Massachusetts Appeals Court, 1990)
Blake v. Hendrickson
666 N.E.2d 164 (Massachusetts Appeals Court, 1996)

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Bluebook (online)
2012 Mass. App. Div. 24, 2012 Mass. App. Div. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trustees-of-denholm-condominium-trust-v-doyle-massdistctapp-2012.