2018 Mass. App. Div. 167

September 21, 2018 - November 16, 2018

Appellate Division Northern District

Court Below: District Court, Newton Division

Present: Coven, P.J., Crane & Karstetter, JJ.

Alexander W. Levine and Ellen A. Shapiro for the plaintiff.

Caroline B. Lapish and Rory Z. Fazendeiro for the defendant.

COVEN, P.J. This case involves the Board of Trustees of the Gables Condominium Trust (the "Board") assessing a fine against, Lisa M. Franco, a unit owner, based upon conduct of her husband, Nicholas R. Franco, DDS. [Note 1] Under protest, the fine was paid, and Franco filed this action seeking recoupment. Decided on summary judgment, Franco appeals raising several constitutional challenges. Because we reverse and direct the entry of summary judgment in favor of Franco, we need not decide the constitutional issues raised. [Note 2]

Taking the evidence in the light most favorable to the Board, on September 25, 2015, Dr. Franco, while returning home, honked his horn at a motor vehicle stopped in front of him near the condominium complex. By account of the operator and passenger of the other vehicle, Dr. Franco uncontrollably used his horn and, in following their vehicle, came so close that the vehicle's rear sensor alerted. In any event, the evidence is that both vehicles proceeded to the condominium complex and entered the complex after the opening of the gate. Both vehicles traveled in the direction of the Franco unit. The vehicle in front of Dr. Franco drove past the driveway to the Franco unit. The vehicle returned, and the passenger of the vehicle that had been in front of him took a picture of his vehicle and the operator then left the area. Dr. Franco returned to his vehicle and followed the other vehicle until it stopped at another driveway within the complex. Further, there is evidence that Dr. Franco followed them while "screaming and beeping" and, when they reached

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the driveway, Dr. Franco exited his vehicle and approached them in a threatening manner and threatened them.

Summary judgment shall be granted where there are no genuine issues as to any material fact in dispute and where the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Mass. R. Civ. P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, "and [further,] that the moving party is entitled to a judgment as a matter of law." Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). "In reviewing the grant of a motion for summary judgment, we conduct a de novo examination of the evidence in the summary judgment record . . . ." LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318 (2012). We are also permitted, by Mass. R. Civ. P. 56(c), to render summary judgment, when appropriate, against the moving party.

The Board points to the By-Laws and particularly Rule 6 in Schedule A as justifying the levy of the fine against Franco for her husband's conduct. Rule 6 provides, "No Unit Owner shall . . . permit any noxious or offensive activities, or . . . permit any noises by . . . his family . . . either willfully or negligently, [Note 3] which: A. May be or become an annoyance or nuisance to the other Unit Owners or occupants, [or] B. Will interfere with the rights, comforts or conveniences of other Unit Owners . . . ." [Note 4]

There is nothing in the record that would permit even an inference that Franco, the unit owner, permitted her husband to engage in the conduct alleged to have occurred. [Note 5] The fine was improperly levied.

Because on an evidentiary basis summary judgment is to enter for the plaintiff, we need not decide the constitutional issues raised. "[I]t is canonical that courts should, where possible, avoid unnecessary constitutional decisions." SCVNGR, Inc. v. Punchh, Inc., 478 Mass. 324, 330 (2017). Nor do we need to address those claims in the complaint seeking a declaratory judgment as the allowance of summary judgment has eliminated the fine assessed by the Board. [Note 6]

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The trial court's allowance of the defendant's Mass. R. Civ. P. 56 motion and its entry of judgment in its favor are reversed and vacated. Summary judgment is to be entered for the plaintiff.


[Note 1] For clarity, we will identify Lisa M. Franco as Franco and Nicholas R. Franco as Dr. Franco.

[Note 2] A condominium is a creature of statute. See G.L. c. 183A; Kaplan v. Boudreaux, 410 Mass. 435, 442 (1991). State action may be present giving rise to constitutional implications even though the relationship is otherwise private between a condominium association and a unit owner. Board of Managers of Old Colony Village Condominium v. Preu, 80 Mass. App. Ct. 728, 731-732 (2011). In this case, the Master Deed provided that G.L. c. 183A would govern all matters not addressed in the Master Deed, Declaration of Trust, and By-Laws. No document addressed the levying of a fine. However, G.L. c. 183A, § 10(b)(5) allows for "reasonable fines" to be levied against a unit by the Trustees of the Gables Condominium Trust for violations of the Master Deed, Declaration of Trust, and By-Laws. It is this statutory provision that the Board relied upon to assess the fine levied.

[Note 3] The facts leave no room to interpret Dr. Franco's conduct as other than wilful in contrast to negligent action.

[Note 4] The Board informed the Francos by letter that it sought their participation at a Board hearing regarding the incident and its belief that it raised "concerns [of] [Dr. Franco's] use of his car and noxious and offensive conduct towards residents . . . which interfered with their right to have a safe and harmonious use and enjoyment of their unit and the common areas." Because of the result reached, we need not decide whether an activity is the same as conduct or whether "safe and harmonious use and enjoyment" is the equivalent to "rights, comforts or conveniences."

[Note 5] While G.L. c. 183A, § 10(b) provides authority for fines to be deemed "common expenses," and G.L. c. 183A, § 6(a)(ii) allows for "the organization of unit owners" to enforce expenses for the "misconduct of any unit owner, or his family members" as common expenses, the By-Laws in this case were drafted more narrowly than § 6(a)(ii), by qualifying the misconduct as constituting permitted wilful or negligent activity.

[Note 6] We note that G.L. c. 231A, § 3 states that the court "may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceedings or for other sufficient reasons."