Gutierrez v. Bd. of Managers of Flagship Wharf Condo.

• Decision Date: 02 February 2022
• Docket Number: 21-P-100
• Citation: 100 Mass.App.Ct. 678,182 N.E.3d 993
• Parties: Connie GUTIERREZ v. BOARD OF MANAGERS OF FLAGSHIP WHARF CONDOMINIUM.
• Court: Appeals Court of Massachusetts

100 Mass.App.Ct. 678

182 N.E.3d 993

Connie GUTIERREZ

v.BOARD OF MANAGERS OF FLAGSHIP WHARF CONDOMINIUM.

No. 21-P-100

Appeals Court of Massachusetts, Suffolk.

Argued October 8, 2021.

Decided February 2, 2022.

Dawn D. McDonald, Springfield, for the plaintiff.

Douglas W. Salvesen, Boston, for the defendant.

Present: Massing, Lemire, & Hand, JJ.

HAND, J.

The plaintiff is a residential unit owner in the Flagship Wharf Condominium (condominium).

After failing in her 2019 bid for a seat on the board of managers (board) of the condominium association (association), she sued the board alleging that its 2019 change in election procedures violated the terms of the association's bylaws (bylaws). The plaintiff filed a complaint in the Superior Court, seeking declarations that (1) she had a right under both the bylaws and the Massachusetts Condominium Act, G. L. c. 183A, § 10 (c ), to review certain election documents, including the individual ballots cast in the 2019 election; (2) "the election [was] void as electronic voting is not permitted under the [b]oard's by-laws"; and (3) "even if electronic voting [were] permissible, the election was not carried out according to the terms of the by-laws."¹ The defendant counterclaimed, seeking declaratory judgment that the 2019 election "was in conformity with the By-Law and custom and practice of the association." On the parties’ cross motions for summary judgment, the judge ruled against the plaintiff and in favor of the defendant on all claims.² The judge did not explicitly declare the parties’ rights on the issues identified in the plaintiff's complaint.

Reviewing the issues de novo, see Dorchester Mut. Ins. Co. v. Krusell, 485 Mass. 431, 435, 150 N.E.3d 731 (2020), we conclude that because the plaintiff's challenge to the board's refusal to provide her with its records of the 2019 election is moot, the portion of the judgment related to count I of the complaint must be vacated. We reverse in part the judgment for the board on count II of the complaint and direct the entry of a judgment declaring that (1) the use of electronic voting did not violate the condominium's bylaws by permitting unit owners to vote remotely and in advance of the annual meeting and (2) the board violated the bylaws in the 2019 election by (a) directing proxy designations to someone other than the clerk and (b) limiting unit owners’ ability to revoke their proxies before the commencement of the annual meeting. The judgment is otherwise affirmed.

Background. The following facts are undisputed. At all relevant times, the condominium included 201 residential units and two commercial units in the Charlestown Navy Yard. The condominium was managed by the board, and its governing documents included the bylaws.

The seven board members were elected by the unit owners for staggered two-year terms.³ The terms of two of the four residential members of the board expired each year. Pursuant to article 3, section 3.7, of the bylaws, in electing the residential board members, the residential unit owners voted using a weighted system based on each unit owner's percentage interest in the condominium's common elements. In addition to authorizing the board to perform a nonexclusive list of managerial responsibilities, the bylaws, at article 2, section 2.2(q), empowered the board to do "[a]nything and everything else necessary and proper for the sound management of the [c]ondominium and the [p]roperty." This discretionary authority included, as the parties agree, running the annual meetings and conducting the elections of the board members.

Prior to 2019, unit owners voted using paper "Proxy/Ballot" forms. Unit owners were entitled to vote whether they chose to attend the annual meeting or not. If a unit owner attended the meeting, he or she used the proxy/ballot form to indicate their choice of candidates, and then submitted the form while at the meeting. If a unit owner chose not to attend the meeting, then he or she completed the proxy/ballot form by (1) identifying the person authorized to act as proxy on either a general or directed basis,⁴ and (2) if using a directed proxy, specifying the candidates for whom the proxy vote could be cast.

Starting with the 2019 election, the board decided to use electronic balloting and an online voting tool in place of the paper ballots. Under this system, the board provided each unit owner with a link to an electronic ballot for his or her unit. A unit owner could complete the electronic ballot from a personal computer, computer tablet, or "smart phone," or could vote using a computer tablet made available in the condominium building's lobby. The electronic ballots provided unit owners an opportunity to vote for two of four candidates for the two open seats on the board. Unit owners were still able to vote through a general proxy; the board directed proxy designations to the property manager and set a deadline of noon on the day of the annual meeting for revocation of any existing proxy designation.⁵ The electronic ballots were made available to unit owners one week before the April 16, 2019, annual meeting. Although unit owners retained the right to vote in person at that annual meeting, they could, and in many cases did, cast their electronic ballots in advance of the meeting itself.⁶

On April 9, 2019, the plaintiff requested that the board amend the bylaws to address the electronic voting system procedures. The board did not do so, the meeting was conducted as scheduled on April 16, 2019, and the board election was completed electronically. The plaintiff was not elected.

Within one week of the election, the plaintiff requested that the board provide her with "all documents pertaining to last week's election ... including but not limited to the actual results and tallies, proxies, etc." The board declined to provide the information.

The plaintiff filed the underlying action in July 2019. In count I of her complaint, the plaintiff sought (1) a preliminary injunction requiring the board to "turn over and make all records of the [2019 board] election available for inspection" and (2) a declaratory judgment to the same effect. In count II, the plaintiff sought (1) to have the judge "declare the election void as electronic voting is not permitted under the [b]oard's by-laws," and "alternatively," (2) a judgment declaring that "even if electronic voting is permissible, the election was not carried out according to the terms of the by-laws."⁷

After a judge denied the plaintiff's request for a preliminary injunction, the board answered the complaint and counterclaimed against the plaintiff, then moved for summary judgment on count II of the plaintiff's complaint. The plaintiff answered, then cross-moved for summary judgment on both counts of her complaint and on the board's counterclaim. After a hearing, the judge granted summary judgment in favor of the board on all the parties’ claims. Final judgment entered accordingly, and the plaintiff filed a timely notice of appeal.

Discussion. 1. Standard of review. We review the summary judgment record de novo, Psychemedics Corp. v. Boston, 486 Mass. 724, 731, 161 N.E.3d 399 (2021), and thus, without deference to the motion judge's assessment of the record. Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515, 517, 947 N.E.2d 1090 (2011). In doing so, we ask "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). As to count II, which was the subject of cross motions for summary judgment, "we view the record in the light most favorable to the party against whom the judge allowed summary judgment, here, the plaintiff[ ]." Marhefka, supra at 516, 947 N.E.2d 1090.

2. Burden of proof. To the extent that it is necessary to the resolution of the dispute to determine which party bore the burden of proof in an action for a declaratory judgment in the Superior Court, we conclude, as did the motion judge, that the plaintiff bore the burden in her challenge to the propriety of the election procedures. See Eliot Discount Corp. v. Dame, 19 Mass. App. Ct. 280, 285, 473 N.E.2d 711 (1985) (burden of proof usually borne by party arguing irregularity or "seeking to alter the status quo to another party's disadvantage"). The cases cited by the plaintiff are not to the contrary.⁸ Regardless of which party would have had the burden of proof at trial, however, on summary judgment, "the moving party [would have] had ‘the burden of demonstrating affirmatively the absence of a genuine issue of material fact on every relevant issue,’ " and on cross motions, "[one party's] failure to show that it was entitled to summary judgment does not mean that [the opposing party is] entitled to the allowance of their cross motion for summary judgment."

Khalsa v. Sovereign Bank, N.A., 88 Mass. App. Ct. 824, 829, 44 N.E.3d 863 (2016), quoting Arcidi v. National Ass'n of Gov't Employees, Inc., 447 Mass. 616, 619, 856 N.E.2d 167 (2006).

3. Count I -- plaintiff's entitlement to election records. Count I of the plaintiff's complaint sought a judgment declaring that the board was required to provide the plaintiff with records of the 2019 board election. See G. L. c. 231A, § 1. In light of the fact that the plaintiff no longer presses her argument that the 2019 election was void, we conclude that the issue is moot.⁹

4. Count II -- propriety of election procedure.¹⁰ The plaintiff argues that the manner in which the 2019 election was conducted violated the condominium's bylaws in three ways: (1) by allowing unit owners to vote in advance of the annual meeting; (2) in directing that unit owners’ proxy designations be made to the property manager, and not the board's clerk; and (3) by limiting the unit owners’ ability...