Wodinsky v. Kettenbach

• Court: Appeals Court of Massachusetts
• Writing for the Court: MEADE, J.
• Citation: Wodinsky v. Kettenbach, 86 Mass. App. Ct. 825, 22 N.E.3d 960 (Mass. App. 2015)
• Decision Date: 06 January 2015
• Docket Number: No. 13–P–1170.,13–P–1170.
• Parties: Jerome WODINSKY & another v. Michael L. KETTENBACH & others.

86 Mass.App.Ct. 825

22 N.E.3d 960

Jerome WODINSKY & another¹

v.Michael L. KETTENBACH² & others.³

No. 13–P–1170.

Appeals Court of Massachusetts, Suffolk.

Argued Sept. 29, 2014.

Decided Jan. 6, 2015.

Donald N. Sweeney (Steven P. Perlmutter with him) for the plaintiffs.

Alan K. Posner (Mikalen E. Howe with him), Boston, for the defendants.

Present: COHEN, MEADE, & MILKEY, JJ.

Opinion

MEADE, J.

Following the consolidation of two cases for a jury trial, Jerome Wodinsky and Bernadette L. Wodinsky appeal from the allowance by the trial judge of a motion for judgment notwithstanding the verdict (n.o.v.), which vacated in part a $1.85 million award⁴ against the defendants, Michael L. Kettenbach, individually and as trustee of 303 Commonwealth Condominium Trust; Frances Demoulas Kettenbach, individually and as manager of CMTF, LP (CMTF); and Gary Crossen, individually and as trustee of 303 Commonwealth Avenue Realty Trust.⁵ The Wodinskys also appeal from the judge's refusal to send to the jury their G.L. c. 93A claims against each of the three

individual defendants, and the judge's decision to reduce the attorney's fees award to one of their attorneys. Crossen and the Kettenbachs cross appeal, claiming that the judge erred in denying their motion for judgment n.o.v. on the Wodinskys' abuse of process, civil conspiracy, and Massachusetts Civil Rights Act (MCRA) claims, in making certain evidentiary rulings, and in awarding attorney's fees to the Wodinskys.⁶ Finally, the Kettenbachs, as trustees of the 303 Commonwealth Condominium Trust, appeal the verdict in the second action in the Wodinskys' favor, claiming that they should not have been permitted to challenge the assessment of condominium expenses against them.⁷ We affirm.

Background. Mindful of the jury's verdicts, we summarize relevant facts in the light most favorable to the Wodinskys, reserving certain details for our later discussion. See Foley v. Polaroid Corp., 400 Mass. 82, 85, 508 N.E.2d 72 (1987). At the time of trial, the Wodinskys and the Kettenbachs were owners of condominium units at 303 Commonwealth Avenue, Boston (303 Commonwealth or the building).⁸ In 1977, the Wodinskys purchased unit 3, which is located on the building's fourth floor. The Kettenbachs purchased unit 1 in June, 1996, and subsequently transferred title to CMTF, a limited partnership wholly controlled by the Kettenbachs.⁹

The Kettenbachs evidently desired to acquire all five units in the building for the purpose of merging them and transforming the building into a single-family residence for themselves. In 2007, the Kettenbachs (through CMTF) purchased unit 5. They then acquired unit 2 in 2008, when the estate of the deceased owner sold it to Crossen as trustee of 303 Commonwealth Avenue

Realty Trust.¹⁰ Following their acquisition of unit 2, the Kettenbachs physically merged units 1 and 2 into a single unit. Later, and as discussed below, the Kettenbachs acquired unit 4. Thus, by the time of trial, the Kettenbachs owned four of the five units at 303 Commonwealth, with the Wodinskys owning the sole remaining unit, unit 3.

A. Improvements to the building. In the years preceding this litigation, the Kettenbachs proposed extensive improvements (the Kettenbachs identified them as “repairs”) to the building that the Wodinskys claimed were unwarranted.¹¹ Under the condominium documents, the Wodinskys were responsible for twenty percent of all validly assessed expenses.¹² All repairs or improvements were required to be approved by the board of trustees of the 303 Commonwealth Condominium Trust (board), the governing body of the building. Both Jerome and Michael L. were at all relevant times duly elected members of the board, each entitled to one vote.

Citing leaks in the roof and other issues, the Kettenbachs insisted that a full replacement of the roof and the skylights was needed. However, Jerome maintained that repairs short of replacement would suffice and would be far less expensive to the unit owners. Nevertheless, in November, 2008, the Kettenbachs engaged a contractor to replace the roof and the skylights. Michael L. signed the contract in his individual capacity, not as an

authorized representative of the board.¹³

On March 26, 2009, some four months after signing the roof and skylights contract, the Kettenbachs arranged a board meeting, at which they essentially sought retroactive approval of the contract. Michael L. did not attend.¹⁴ Instead, Crossen appeared as the “representative” of not only Michael L., but of his two adult sons, Michael D. Kettenbach and Edward Kettenbach, who both recently had been elected trustees, but who had not properly accepted or recorded their appointments as required by the trust documents.¹⁵ Both Jerome and Elizabeth Kipp, the owner of unit 4 and a trustee of the board, voted against the improvements. Crossen claimed to hold proxies for Michael D. and Edward, but the jury found that no proxies had been issued.¹⁶ Thus, of the three votes which Crossen claims to have submitted at that meeting (Michael L. and each of his two sons), none was effective.¹⁷ Therefore, the Kettenbachs lost the vote.

One month after the March, 2009, meeting, Crossen (on behalf of the Kettenbachs) demanded payment of $31,487.57 from the Wodinskys,¹⁸ which represented the Wodinskys' twenty-percent share of the roof and skylights contract.¹⁹ Crossen also demanded that the Wodinskys furnish the name and the address of their mortgagee. After receiving a similar demand for her ten-percent share of the expenses, Kipp sold unit 4 to the Kettenbachs

through 303 Commonwealth Avenue Realty Trust (with Crossen as trustee) in July, 2009. In return, the Kettenbachs forgave Kipp's share of the condominium assessment. Kipp testified that she felt “forced out” to the extent that she would not be able to afford the cost of work being done, and that she could not afford the legal fees she believed necessary to “fight about it forever.”

The Wodinskys objected to paying any of the Kettenbachs' demands, believing the board never had voted to authorize such expenses. In a letter dated August 6, 2009, an attorney claiming to act for the board demanded from the Wodinskys payment of $31,487.57 within thirty days, which the Wodinskys tendered on September 9 “under protest.” However, even though this check was for the full amount requested, the board's counsel refused to accept the check as satisfaction of the alleged debt, and instead added new demands for attorney's fees and costs totaling $2,472.16 for what was at most a four-day delay. The Wodinskys stopped payment on the check. A copy of counsel's demand letter was conspicuously posted on the building's front entrance, which the Wodinskys claim caused them to feel threatened and humiliated. In September, 2009, the Kettenbachs commenced an action in the name of the board to recover the expenses, late fees, attorney's fees, and costs, and to place a lien on the Wodinskys' unit for nonpayment of condominium expenses.²⁰

B. The elevator. On May 11, 2009, as the parties were fully embroiled in their dispute over the roof and skylights work, a Department of Public Safety (DPS) elevator inspector cited twelve issues with the single elevator in 303 Commonwealth. The Wodinskys, who lived on the fourth floor of the building, relied on and daily used the elevator to reach their unit from the street. After inspecting the elevator, the DPS inspector issued a repair ticket, which directed that the issues be corrected within thirty days or the elevator would be shut down. However, even before the inspection took place, the Kettenbachs had been planning for a full replacement of the entire elevator system. Indeed, there was evidence in the record that the Kettenbachs had arranged the inspection in the hopes that it would result in DPS condemning the elevator, thus justifying replacement.

On hearing of the elevator replacement plan, the Wodinskys received advice from the building's regular elevator maintenance

company that the cited problems could be corrected at a fraction of the cost of replacing the entire elevator system. At worst, the company stated that the system could be fully replaced for approximately $145,500. When presented with this proposal by June 5, 2009, the Kettenbachs rejected it, and, without board approval, hired another company to perform the replacement project for $273,200.²¹ Shortly thereafter, the Kettenbachs caused a sign to be placed on the elevator door, stating that it had been “condemned” by the DPS, which was not true. On or about June 15, 2009, Delta Beckwith (Delta), the Kettenbachs' hired contractor, shut down the elevator. However, Delta did not remove the elevator until mid-July.

The new elevator did not become operable until April 30, 2010, ten months after being shut down. This date also happened to be the last day for Michael L., individually, to avoid a $1,000 per day fine pursuant to a preliminary injunction (discussed below). During the period when the elevator was inoperable, the Wodinskys were denied their sole practical means of reaching their fourth-floor unit. Instead, they were forced to walk up and down the stairs each time they wanted to leave or to return to their home. As to Jerome, who at the time of trial was eighty-four years of age, and Bernadette, who was sixty-eight years of age, the record amply illustrated the extreme physical and emotional burden on both of them as they struggled to ascend or to descend the eighty-six steps that separated their unit from the street. Indeed, Jerome suffered from numerous medical conditions, including diabetes, chronic obstructive pulmonary disease, and emphysema. Jerome's eighty-six year old brother, who required a walker to move about, was completely unable to navigate the stairs, and died in December, 2009, confined to the Wodinskys' unit.

On June 26, eleven days after the vendor shut down the elevator, Michael L. sent an electronic mail message (e-mail) to Jerome (which he...