TRUSTEES OF THE 10 PORTER STREET CONDOMINIUM TRUST v. ELIZABETH R. CERDA (And a Companion Case).

• Court: Massachusetts Appeals Court
• Decided: May 16, 2023
• Docket: 22-P-0605
• Status: Unpublished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-605

TRUSTEES OF THE 10 PORTER STREET CONDOMINIUM TRUST

vs.

ELIZABETH R. CERDA (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

These consolidated cross appeals arise from a longstanding

dispute between the plaintiffs, who are the Trustees of the 10

Porter Street Condominium Trust, and the defendants, Elizabeth

R. Cerda and Carmen R. Berges, who are two condominium unit

owners. Berges appeals from a Superior Court judgment assessing

penalties and fines against her for having affixed a camera to

the railing of the porch of her unit, as well as an award to the

plaintiffs of a portion of their claimed attorney's fees. The

plaintiffs appeal from the judge's ruling that three other

cameras affixed to the defendants' units did not violate the

condominium master deed or declaration of trust (collectively,

condominium documents). We affirm.

1 Trustees of the 10 Porter Street Condominium Trust vs. Carmen R. Berges. Background. Much of the lengthy procedural history of this

case is set forth in Trustees of the 10 Porter St. Condominium

Trust v. Cerda, 99 Mass. App. Ct. 1106 (2021) (Cerda I), an

unpublished rule 23.0 memorandum and order, and need not be

repeated here. In Cerda I, a panel of this court affirmed so

much of the 2019 judgments entered in these cases (the 2019

judgments) as assessed unpaid condominium fees and special

assessments against each defendant.2 However, the Cerda I panel

vacated so much of the 2019 judgments as ordered the defendants

to pay penalties, fines, and late fees in the amounts of $60,125

(Cerda) and $60,600 (Berges). Cerda I, slip op. at 18-19. The

panel remanded the case to the Superior Court "for a judicial

determination of the basis for, and legality of, the penalties

and late fees," and whether a statement of the defendants'

counsel to another Superior Court judge at a May 1, 2018 hearing

constituted a representation that penalties and late fees would

not accumulate. Cerda I, slip op. at 15.

On remand, the defendants moved pursuant to Mass. R. Civ.

P. 42 (a), as amended, 423 Mass. 1402 (1996), to consolidate

these cases with another Superior Court case, Cerda v. Dunn,

2 After the Cerda I rescript entered, a Superior Court judge entered confirming judgments imposing unpaid condominium fees and special assessments in the amounts of $34,304.77 (against Cerda) and $31,391.08 (against Berges). There is no dispute that the defendants satisfied so much of those judgments.

2 Essex Sup. Ct. No. 1877CV00561C, in which these defendants

sought a declaratory judgment against the plaintiffs. The

motion was denied. Less than two months later, the defendants

renewed their motion to consolidate Cerda v. Dunn with the

present matters, which a different judge, the same judge to

later rule on the issues remanded by the Cerda I panel, again

denied.

The judge held a three-day evidentiary hearing, at which

both plaintiffs and both defendants testified; numerous exhibits

were admitted in evidence. After the plaintiffs had rested

their case, the judge noted that they might not have met their

burden to show that the cameras violated the condominium

documents. Ultimately, the judge concluded that the condominium

documents did not prohibit cameras, the cameras affixed to the

window frames were within the defendants' respective units, and

thus only one camera -- the one affixed to Berges's porch

railing (porch camera) -- violated the condominium documents.

Accordingly, judgment entered in Cerda's favor. As to Berges's

porch camera, the judge concluded that the fifty dollar per day

fine assessed by the plaintiffs was not reasonable, as required

by G. L. c. 183A, § 10 (b) (5), and that a reasonable fine would

be ten dollars per day. The judge assessed penalties and fines

against Berges in the amount of $7,980. The judge also

3 concluded that the amount of the late fees that the plaintiffs

had assessed against Berges was unreasonable as a matter of law.

Pursuant to G. L. c. 183A, § 6 (b), and the condominium

documents, the judge imposed an $18,152.36 attorney's fees award

against Berges. Arguing that the plaintiffs' claims were

frivolous and not advanced in good faith, the defendants moved

pursuant to G. L. c. 231, § 6F, for attorneys' fees and costs,

which the judge denied. The parties cross-appealed.3

Discussion. Motions to consolidate. The defendants argue

that the judge erred in denying their motions pursuant to Mass.

R. Civ. P. 42 (a) to consolidate this case with their

declaratory judgment action against the plaintiffs. The

defendants contend that the lack of consolidation of the actions

prejudiced them because it meant that the judge considered the

legality and amount of the fines "in a vacuum." The plaintiffs

counter that the judge properly denied the motion to consolidate

because the scope of the declaratory judgment action is far

broader than the issues presented in Cerda I.

3 Because judgment entered in Cerda's favor, it would appear that her appeal is moot. See Lynn v Murrell, 489 Mass. 579, 582-583 (2022). Asked at oral argument why her appeal is not moot, Cerda replied that she pursued the appeal in order to respond to the plaintiffs' arguments that her cameras violated the condominium documents and because she disagreed with the judge's findings of fact. Because her claims are duplicative of those raised by Berges, we proceed to adjudicate Cerda's appeal.

4 We review the denial of a motion to consolidate for abuse

of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014). Consolidation under Mass. R. Civ. P. 42 (a) is

"discretionary," and "potential delay and confusion alone may

warrant denying consolidation." Springfield v. Civil Serv.

Comm'n, 403 Mass. 612, 615 n.3 (1988). The initial motion judge

denied the defendants' motions to consolidate because the

declaratory action judgment was "substantially broader in scope

and is [in] a much earlier procedural stage in a separate

session in Lawrence Superior Court." The judge did not abuse

his discretion.

Cameras affixed to window frames. The plaintiffs argue

that cameras affixed to the window frames of both defendants'

units violated section 19(c) of the master deed and rules 4, 6,

and 14 of the declaration of trust. We review de novo the

judge's interpretation of the condominium documents. See

Gutierrez v. Board of Managers of Flagship Wharf Condominium,

100 Mass. App. Ct. 678, 679 (2022).

At the hearing, the judge noted that the plaintiffs'

notices to the defendants stated only that the cameras violated

the condominium documents, which the judge interpreted to

"define a unit basically from the outside pane in." The

plaintiffs' counsel agreed with that interpretation of the

condominium documents as to the parameters of the units.

5 The plaintiffs argued, as they argue again on appeal, that

even if the condominium documents did not explicitly prohibit

the cameras affixed to the defendants' window frames, the

plaintiffs had broad authority to fine the defendants because

the cameras constituted a nuisance and interfered with other

occupants' peaceful possession in violation of section 19(f) of

the master deed. The judge declined to find that the cameras

were a nuisance, noting that "self-installed security cameras on

private property have become fairly commonplace in this day and

age." The judge specifically did not credit the plaintiffs'

testimony that the cameras caused "people" to "feel

uncomfortable." Based on his observations of the parties in

court, the judge noted "open hostility" by the plaintiff

trustees toward the defendants, which he concluded "led the

[t]rustees to feel 'harassed' and to assess the camera fines

against the defendants without first ensuring they had

sufficient information and specific grounds based on provisions

of the condominium documents." We defer to the judge's findings

that were based on the demeanor and credibility of witnesses.

See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 553

(1997).

The judge concluded that it would be "unreasonable and

unfair" for the plaintiffs to recover fines from the defendants

on grounds for which the plaintiffs had not given notice. We

6 agree. As we noted in Cerda I, "the statute authorizing the

assessment of fines requires that they be 'reasonable.'" Cerda

I, slip op. at 15, quoting G. L. c. 183A, § 10 (b) (5). It was

within the judge's discretion to conclude that fines are not

"reasonable" if imposed without notice of the basis.4

Berges's porch camera. Berges argues that the judge erred

in concluding that her porch camera violated rule 2 of the

declaration of trust, which provides, "nor shall anything be

stored in the Common Elements without the prior consent of the

Board of Trustees." Berges contends that rule 2 does not apply

to her porch camera because she had exclusive use of the porch,

and therefore it was a "limited common area" as defined in G. L.

c. 183A, § 1.

The master deed defines the "Common Elements" to include

"the entire Condominium, including all parts of the Building

other than the Units," including "[t]he balconies of the

Building . . . , provided, however, that each Unit Owner shall

have a license for the exclusive use of the balcony . . .

extending from the exterior wall of h[er] Unit." Interpreting

that provision of the master deed, the judge concluded that

Berges's porch camera was within the boundaries of the common

4 We decline to reach the plaintiffs' argument that the judge should have deferred to their "business judgment" on what fines were reasonable.

7 elements and not within her unit. The judge noted that the

condominium statute would define a unit to encompass an

appurtenant balcony "if . . . stipulated in the master deed as

being owned by the unit owner," G. L. c. 183A, § 1 "Unit," but

here the master deed did not grant Berges ownership of the

balcony, only a "license" to use it exclusively. Reviewing de

novo the judge's interpretation of the condominium documents,

see Gutierrez, 100 Mass. App. Ct. at 679, we agree that Berges's

porch camera violated rule 2.

Reasonableness of amount of fines for Berges's porch

camera. The judge concluded that the fifty dollar per day fine

that the plaintiffs imposed on Berges for her porch camera was

not "reasonable" as required by G. L. c. 183A, § 10 (b) (5).

The plaintiffs argue that the judge abused his discretion in

making that determination, because the word "reasonable" in

§ 10 (b) (5) refers only to whether the imposition of a fine was

reasonable, not to whether the amount of the fine was

reasonable. The judge concluded that the reasonableness

requirement in § 10 (b) (5) applied to both the imposition of

the fine and its amount, and "[t]o hold otherwise would mean

that the Legislature intended to grant condominium trustees

unfettered authority to impose any amount of fine." We agree

with the judge that fifty dollars per day was an unreasonable

amount, and that ten dollars per day is reasonable. See Board

8 of Health of Northbridge v. Couture, 95 Mass. App. Ct. 296, 301

& n.6 (2019).

Conversely, Berges argues that the judge committed clear

error in assessing any fines against her, because the plaintiffs

acted in bad faith and gave testimony that the judge found was

not credible. The defendants contend that the judge should have

found that the plaintiffs acted in bad faith because they

implicitly promised that they would stop levying fines when, at

a May 1, 2018 hearing, their counsel represented to another

Superior Court judge that "nothing is going to change the status

quo." In considering whether to impose fines on Berges, this

judge concluded, "[b]ased on . . . [a] close reading of the

transcript," that what the plaintiffs' counsel meant was that

they "would not foreclose on any statutory lien," and did not

represent that the plaintiffs would stop accruing or waive fines

and late fees against the defendants while awaiting a ruling on

summary judgment. Having reviewed the hearing transcript, we

concur. The judge's memorandum of decision makes clear that in

setting the amount of the fine he considered, among other

factors, the plaintiffs' conduct and what amount would serve as

a "significant deterrent" to unit owners to refrain from

violating the condominium rules. We discern no abuse of his

9 discretion.5 See Board of Health of Northbridge, 95 Mass. App.

Ct. at 301 & n.6.

Attorney's fees. Berges argues that the judge erred in

assessing $18,152.36 in attorney's fees against her, because

that amount was far greater than the amount of damages yielded

from the expenditure of attorney's fees -- i.e., the fines

totaling $7,980.

Pursuant to G. L. c. 183A, § 6 (b), and article III,

section 7 of the declaration of trust, the plaintiffs were

entitled to an award of reasonable attorney's fees. See Eastern

Holding Corp. v. Congress Fin. Corp., 74 Mass. App. Ct. 737, 743

(2009). "The party seeking attorney's fees bears the burden of

showing that the amount sought is reasonable." WHTR Real Estate

Ltd. Partnership v. Venture Distrib., Inc., 63 Mass. App. Ct.

229, 235 (2005). We review a determination of a reasonable

attorney's fee for abuse of discretion. See Brady v. Citizens

Union Sav. Bank, 91 Mass. App. Ct. 160, 161 (2017).

5 The judge concluded that the late fees that the plaintiffs sought against Berges in the amount of twenty-five dollars per month per outstanding invoice, totalling $20,875, would be unreasonable as a matter of law and would "result in a windfall" for the plaintiffs. The judge declined to impose late fees. The plaintiffs do not raise the issue on appeal but, in any event, we discern no abuse of discretion. See Craft v. Kane, 65 Mass. App. Ct. 322, 328 (2005) (award of interest should not "result in a windfall").

10 We note that the judge substantially reduced the amount of

attorney's fees sought, for reasons including that only one of

the defendants' four cameras violated the condominium documents;

the plaintiffs' documentation of attorney's fees was

insufficiently detailed; and the amounts sought were excessive,

redundant, and pertained to unrelated matters. We discern no

abuse of the judge's discretion.

Evidentiary issues. The defendants argue that the judge

erred in two respects in his conduct of the hearing. First,

they contend that the judge erred in denying their motion to

strike certain invoices admitted in evidence as exhibits, which

they contend were not properly authenticated. Rather than

striking the exhibits, the judge ruled that the defendants could

offer other copies of the invoices, and permitted them wide

latitude in cross-examining the plaintiffs about the exhibits.

We discern no abuse of discretion.

Second, the defendants argue that the judge improperly

interrupted their presentation of evidence and imposed arbitrary

time limits, which hampered them from proving that the

plaintiffs acted in bad faith. During Cerda's cross-examination

of one of the plaintiffs about whether the condominium documents

prohibited cameras, the judge excused the witness and then

elicited from the plaintiffs' counsel a concession that in fact

the condominium documents did not do so. The judge's action was

11 appropriate. See Commonwealth v. Carter, 475 Mass. 512, 526

(2016) (judge must be "the directing and controlling mind at the

trial, and not a mere functionary to preserve order and lend

ceremonial dignity to the proceedings" [quotation omitted]).

See also Chandler v. FMC Corp., 35 Mass. App. Ct. 332, 338

(1993) ("a judge has wide discretion to impose reasonable limits

on the length of the direct and cross-examination of

witnesses"). Moreover, it did not prejudice the defendants, as

based on that questioning the judge concluded that the

condominium documents did not prohibit cameras.

Appellate attorneys' fees. Both the defendants and the

plaintiffs seek an award of their respective appellate

attorneys' fees. Those requests are denied.6

Judgments affirmed.

By the Court (Vuono, Henry & Grant, JJ.7),

Clerk

Entered: May 16, 2023.

6 To the extent that we do not address the parties' remaining contentions, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). 7 The panelists are listed in order of seniority.