Trs. of the 10 Porter St. Condo. Tr. v. Cerda

Decision Date16 May 2023
Docket Number22-P-605
PartiesTRUSTEES OF THE 10 PORTER STREET CONDOMINIUM TRUST v. ELIZABETH R. CERDA (and a companion case[1]).
CourtAppeals Court of Massachusetts

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).

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.

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case is set forth in Trustees of the 10 Porter St. Condominium Trust v Cerda, 99 Mass.App.Ct. 1106 (2021) (Cerda I), an unpublished rule 23.0 memorandum and order, and need not be repeated here.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, 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 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.

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.

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 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 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...

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