2009 Mass.App.Div. 132 (2009), 08-ADMS-40029, Board of Trustees of Sea Grass Village Condominium v. Bergquist

Docket Nº:08-ADMS-40029.
Citation:2009 Mass.App.Div. 132
Opinion Judge:Williams, P.J.
Attorney:Wall for the plaintiff. James S. Bergquist, pro se.
Judge Panel:Present: Williams, P.J., McCallum & Singh, JJ.
Case Date:June 25, 2009
Court:Massachusetts Appellate Division

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2009 Mass.App.Div. 132 (2009)



James S. BERGQUIST and others 2.

No. 08-ADMS-40029.

Massachusetts Appellate Division, District Court Department, Southern District.

June 25, 2009

Heard Nov. 7, 2008.

Opinion affirming trial court decision on issue of lien priorities and returning case for trial judge's further consideration of the counsel fee award and for the assessment of interest. Action heard in the Orleans Division by Merrick, J. 3

Wall for the plaintiff.

James S. Bergquist, pro se.

Present: Williams, P.J., McCallum & Singh, JJ.


Williams, P.J.

Sea Grass Village is a condominium community in South Dennis consisting of 14 freestanding units and common areas. Following its determination that a unit owner, James S. Bergquist ("Bergquist"), had breached several condominium rules, the Board of Trustees of the Sea Grass Condominium ('Trustees") filed this action to collect various expenses and fines and to establish and enforce their lien pursuant to G.L.c. 183A. After a jury had awarded the Trustees money damages, the trial judge decided the issues of the Trustees' lien priority and their claim for attorney's fees. The Trustees appeal the trial judge's decision that their lien, which arises pursuant to G.L.C. 183A, §6(a) and the Master Deed, is subordinate to a comprehensive permit requiring that several units be affordable and to a regulatory agreement, both of which were recorded before the Master Deed, and to a deed rider recorded thereafter. The Trustees appeal three claimed errors: the trial judge's failure to assign their lien priority over other perceived encumbrances, his failure to award them attorney's fees arising from their defense of Bergquist's administrative discrimination claims, and his failure to order interest on any part of the award. Finally, the Trustees submit that Bergquist's cross appeal assailing the reasonableness of the attorney's fees the trial court did award must fail because that award was reasonable and not clearly erroneous. We affirm the trial court's decision regarding the lien priorities, but return the action to the Orleans District Court for further consideration of the attorney's fee award and for the assessment of certain prejudgment and postjudgment interest.

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Sea Grass Village was established by a Master Deed and a Declaration of Trust recorded on October 7, 2002. The Rules and Regulations that govern aspects of the operation, use, and appearance of the condominiums were recorded with the Trust. Bergquist became the owner of Unit No. 14 on October 11, 2002 as the result of his success in a G.L.C. 40B affordable housing lottery. His deed expressly rendered his ownership subject to the rights and obligations set out in G.L.c. 183A and in the Master Deed and the bylaws filed with it.

In January and February, 2006, two unit owners complained to the Trustees that Bergquist's yard was unkempt, that he had more pets than permitted, and that his cat was roaming unrestrained. The Trustees asked Bergquist in writing to abide by rules pertaining to those matters, among others. There followed a duel of correspondence. Bergquist warned the Trustees that he would file discrimination claims against them with, among other bodies, the Massachusetts Commission Against Discrimination ("MCAD"). 4

The Trustees' theme was that Bergquist's persistence in violating the rules would render him liable for various fines and costs, including attorney's fees.

Since Bergquist failed to comply as requested, the Trustees finally, in August of 2006, launched a lien-enforcement action against him pursuant to G.L.c. 183A, §6(c) and Article V, §5.5 of the Trust. They also notified the mortgagee on Bergquist's unit, Cape Cod Five Cent Savings Bank ("Cape Cod Five"), of their intent to foreclose on the condominium. In order to protect the priority of its mortgage from the condominium's statutory lien, Cape Cod Five paid the unpaid common area charges along with the attorney's fees generated by the notice letter.

His attention finally captured, Bergquist began exploring resolution of the dispute. Several months of negotiation followed. It is apparent that Bergquist at times ignored the substance of those negotiations in favor of concentrating on such minutiae as an obvious mistyped date in one of the proposed agreements. Finally, in January, 2007, after Bergquist had neither agreed to settlement terms, nor cured the violations, the Trustees brought this action, seeking unpaid common expenses, fines, interest, and attorney's fees as well as the establishment of their lien pursuant to G.L.C. 183A, §6. Bergquist counterclaimed, alleging what were eventually framed for the jury as claims for abuse of process and discrimination. He further riposted by filing discrimination complaints with the MCAD and the United States Department of Housing and Urban Development ("HUD"). Both those complaints were dismissed in April, 2007.

The Trustees' claims for unpaid common area fees and fines, and Bergquist's counterclaims, were tried to a jury in December, 2007. The jury awarded the Trustees $2,405.61 and found in favor of the Trustees on Bergquist's counterclaims. After trial, the judge addressed the Trustees' claims for attorney's fees and for the establishment of the priority of their lien. In March, and in further orders in April, 2008, the trial judge awarded the Trustees attorney's fees and collection costs totaling $33,026.93. The total judgment entered was $35,426.93. The court found that Bergquist was personally liable on that judgment under G.L.c. 183A,

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§6(b), and that that amount constituted a lien upon his unit. The court awarded the Trustees neither legal fees for defending the MCAD and HUD claims, nor interest on any part of the award. Further, the court did not grant the Trustees' lien the priority they had sought. Pursuant to G.L.c. 183A, §6, the Trustees had asserted that their lien trumped all other "liens and encumbrances" save for Cape Cod Five's mortgage and such liens as those for real estate taxes and municipal assessments. 5 The court, instead, found that the Trustees' lien was subject to a Comprehensive Permit (issued under G.L.c. 40B) and a Regulatory Agreement that had been recorded before the Master Deed. The trial judge also made the Trustees' lien further subject to the "Deed Rider" recorded after Bergquist's deed. Additionally, he ordered that proceeds of the sale of the unit would be applied to each lien according to the priority established in the judgment, and that any remaining proceeds would be paid to the Trustees, with any excess payable to Bergquist.

1. Lien Priority.

The Trustees argue that the trial judge erred when he found that the Comprehensive Permit (issued by the Dennis Zoning Board of Appeals), the Regulatory Agreement between the developer and his bank, 6 and the Deed Rider attached to Bergquist's deed took priority over the Trustees' condominium lien. There was no error.

Specifically, the Trustees submit that the trial judge erred as a matter of law because, pursuant to the plain language of...

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