Wodinsky v. Kettenbach , 86 Mass. App. Ct. 825 ( 2015 )

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13-P-1170 Appeals Court
JEROME WODINSKY & another1 vs. MICHAEL L. KETTENBACH2 &
others.3
No. 13-P-1170.
Suffolk. September 29, 2014. - January 6, 2015.
Present: Cohen, Meade, & Milkey, JJ.
Consumer Protection Act, Trade or commerce. Massachusetts Civil
Rights Act. Civil Rights, Coercion. Abuse of Process.
Conspiracy. Condominiums, Common expenses. Real Property,
Condominium. Evidence, Relevancy and materiality.
Practice, Civil, Judgment notwithstanding verdict,
Attorney's fees.
Civil actions commenced in the Superior Court Department on
September 28, 2009, and November 13, 2009.
After consolidation, the case was tried before Frank M.
Gaziano, J., and motions for judgment notwithstanding the
verdict and for attorney's fees were heard by him.
1
Bernadette L. Wodinsky.
2
Individually and as trustee of 303 Commonwealth
Condominium Trust.
3
Frances Demoulas Kettenbach, individually and as manager
of CMTF, LP; and Gary C. Crossen, individually and as trustee of
303 Commonwealth Avenue Realty Trust.
2
Donald N. Sweeney (Steven P. Perlmutter with him) for the
plaintiffs.
Alan K. Posner (Mikalen E. Howe with him) for the
defendants.
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
4
The $1.85 million award consisted of: (1) $175,000 to
each plaintiff on counts 1, 2, and 8 (violation of the
Massachusetts Civil Rights Act, violation of G. L. c. 183A,
§ 11(e), and civil conspiracy), (2) $50,000 to each plaintiff on
count 7 (abuse of process), and $700,000 to each plaintiff
against Frances in her capacity as manager and general partner
of CMTF on count 11 (violation of G. L. c. 93A).
5
We use the parties' first names to avoid confusion.
3
(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 (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
6
The Wodinskys also challenge the judge's exclusion of
evidence related to Crossen's disbarment as an attorney in the
Commonwealth. See Matter of Crossen, 450 Mass. 533 (2008).
Because we do not order a new trial, we need not decide this
claim.
7
Consolidated with this appeal is the Wodinskys' appeal of
two single justice orders regarding the page limit allowed for
their reply brief. As the single justice ruled in accordance
with Mass.R.A.P. 16(c), (h), and (i), as amended, 428 Mass. 1603
(1999), there was no abuse of discretion.
8
The building at 303 Commonwealth Avenue is located in the
Back Bay section of Boston, and was designed by prominent
architects McKim, Mead & White. Built in 1895, it is
unquestionably an historic and elegant property.
4
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
9
Frances was CMTF's sole general partner, while she and
Michael L. were limited partners. CMTF held title to units 1
and 5, while units 2 and 4 were held by the 303 Commonwealth
Avenue Realty Trust, with Crossen as trustee.
10
The Wodinskys alleged that Crossen took several actions
that, if true, would violate the Supreme Judicial Court's order
of disbarment. See Matter of Crossen, 450 Mass. at 536.
Crossen was ordered disbarred as an attorney on February 2,
2008, for conduct that "struck at the heart of the lawyer's
professional obligations of good faith and honesty." Ibid. The
March 6, 2008, judgment of disbarment required that Crossen
resign "all appointments as . . . trustee, attorney-in-fact, or
other fiduciary" responsibilities by March 20, 2008.
Nevertheless, on February 21, 2008, Crossen took title to unit 2
of the building as trustee of 303 Commonwealth Avenue Realty
Trust, a position from which he failed to resign by March 20,
2008. In addition, in June, 2009, Crossen apparently negotiated
the purchase of unit 4 on behalf of the Kettenbachs, even
drafting the purchase and sale agreement, which he sent to
counsel for the seller.
5
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.
11
We discuss only the roof and skylights replacement and
the elevator replacement projects. There were also disputes
about the replacement of the building's heating and ventilation
system and the renovation of the basement storage area.
12
Elizabeth Kipp, the owner of unit 4 until selling it to
the Kettenbachs, was responsible for ten percent of the total
expenses. The Kettenbachs were responsible for the remainder.
6
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.
13
The contract states that it is between "Mr. and Mrs.
Michael Kettenbach" and Performance Building Company, Inc.,
P.C., and is signed by Michael L. without notation that he is
signing in a representative capacity. No mention is made of the
board anywhere within the four corners of the contract.
14
Crossen testified both that Michael L. was present, and
that he was not sure if Michael L. was present. However, the
jury were entitled to find that Michael L. did not attend.
Crossen, Jerome, and Kipp all attended the meeting, as did
Attorney Richard Wise, who represented both Jerome and Kipp.
15
The Wodinskys charge that Michael D.'s and Edward's
failures to record their appointments renders their election
ineffective. However, the question is ultimately of no import:
even if Michael D. and Edward were entitled to vote at the
meeting, they did not attend nor did they issue proxies.
7
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
16
The Kettenbachs do not challenge this finding.
17
At most, Crossen validly voted once on behalf of Michael
L.
18
In subsequent correspondence, Crossen noted that "the
democratic process" governed the board's actions and that
Jerome's "point of view did not carry the day."
19
Kipp was charged ten percent, or $15,743.78, proportional
to her interest in the building. Crossen demanded checks be
forwarded to him, rather than to the building's management
company, which had handled prior assessments and maintained
records.
8
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
20
The lien was not recorded within the statutory thirty-day
period, see G. L. c. 254, § 5, and this count was ordered
dismissed on summary judgment. The Kettenbachs do not appeal
that order.
9
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
10
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
21
The Kettenbachs asserted that the decision to replace the
elevator had been taken pursuant to a valid meeting and vote of
the board, but testimony varied significantly on that point and
no written records were presented to show that there ever was a
vote or a meeting. The jury reasonably could have found that
there had not been either.
11
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 copied to Crossen) demanding prompt payment of
$142,001.68 to him, representing twenty percent of the cost of
the improvements that had been done at 303 Commonwealth. That
sum included an initial deposit on the elevator project,22 and
did not include the still outstanding $31,487.57 assessment for
the roof and skylights work.
In a letter dated October 6, 2009, the Kettenbachs (through
Crossen) informed the Wodinskys of their intent to hold a board
meeting to discuss (among other topics) the elevator project,
the heating system, and the costs of the litigation recently
commenced against the Wodinskys. Inferring that the Kettenbachs
would add new charges for the board's litigation against them,
22
The Wodinskys claim in their brief that this fee included
twenty percent of the full elevator contract price. However,
the record shows that this demand by Michael L. represented
twenty percent of only the $23,700 deposit due. It is a
reasonable inference, however, that, had the injunction not
issued, the Kettenbachs would have sought a twenty-percent share
of the balance of the elevator contract shortly after it was
paid.
12
the Wodinskys commenced the second of the two cases in the
Superior Court. In this suit, the Wodinskys sought nine counts
of relief, including, inter alia: violation of the MCRA, G. L.
c. 12, § 11I; unreasonable interference with the Wodinskys' use
of their unit and condominium common areas, G. L. c. 183A,
§ 11(e); intentional infliction of emotional distress; abuse of
process; and civil conspiracy.
Together with their complaint, the Wodinskys moved for a
preliminary injunction to end further collection proceedings
against them for claimed expenses. After a hearing on December
23, 2009, a Superior Court judge (not the trial judge), issued
the preliminary injunction barring the Kettenbachs from placing
a lien on unit 3 or from seeking payment of further common or
special assessments during the pendency of the action. The
injunction also imposed a $1,000 per day fine on Michael L. for
each day the elevator remained inoperable after April 30, 2010.
This judge also consolidated the board's action and the
Wodinskys' action.
After lengthy discovery, innumerable motions between the
parties, and nineteen days of trial, the jury returned a verdict
for the Wodinskys in the board action. The jury also returned a
verdict for the Wodinskys on most of the claims in their suit.
After trial, the trial judge granted Crossen's and the
13
Kettenbachs' motion for judgment n.o.v. on the Wodinskys' G. L.
c. 93A claim.
Discussion. A. Judgment n.o.v. The Wodinskys appeal the
entry of judgment n.o.v. on their G. L. c. 93A claims against
CMTF while Crossen and the Kettenbachs appeal the denial of
judgment n.o.v. as to the Wodinskys' MCRA, civil conspiracy, and
abuse of process claims. A motion for judgment n.o.v. presents
a "pure question of law, specifically, whether 'anywhere in the
evidence, from whatever source derived, any combination of
circumstances could be found from which a reasonable inference
could be drawn in favor of the plaintiff.'" Quinn v. Mar-Lees
Seafood, LLC, 69 Mass. App. Ct. 688, 702 (2007), quoting from
Poirier v. Plymouth, 374 Mass. 206, 212 (1978). "The evidence
is reviewed in the light most favorable to the plaintiff,
'without weighing the credibility of the witnesses or otherwise
considering the weight of the evidence.'" Haddad v. Wal-Mart
Stores, Inc., 455 Mass. 91, 94 n.5 (2009), quoting from Bavuso
v. Caterpillar Indus., 408 Mass. 694, 695 n.1 (1990). "That the
inferences be reasonable requires that they be based on
'probabilities rather than possibilities' and not the result of
'mere speculation and conjecture.'" Poirier v. Plymouth, supra,
quoting from Alholm v. Wareham, 371 Mass. 621, 627 (1976).
1. Chapter 93A claims. After trial, the judge allowed
Crossen's and the Kettenbachs' motion for judgment n.o.v. on the
14
Wodinskys' G. L. c. 93A claim against CMTF. The motion was
allowed not because of the absence of proof of unfair or
deceptive acts or practices, but because the complained of acts
did not occur within trade or commerce. The Wodinskys claim
this was error, and that the judge should have permitted the
jury to decide the c. 93A claim against each individual
defendant. We disagree.
Chapter 93A prohibits "unfair or deceptive acts or
practices in the conduct of any trade or commerce." G. L.
c. 93A, § 2(a), inserted by St. 1967, c. 813, § 1. The "basic
policy [of c. 93A] is to ensure an equitable relationship
between consumers and persons engaged in business." Heller v.
Silverbranch Constr. Corp., 376 Mass. 621, 624 (1978). However,
"[t]ransactions that are 'principally private in nature . . . do
not fall within the purview of G. L. c. 93A.'" Office One, Inc.
v. Lopez, 437 Mass. 113, 125 (2002), quoting from Zimmerman v.
Bogoff, 402 Mass. 650, 662 (1988). See Lantner v. Carson, 374
Mass. 606, 607-608 (1978). Moreover, the misconduct must "have
an entrepreneurial, commercial or business purpose [that serves]
the actor's financial benefit or gain." McGonagle v. Home Depot
U.S.A., Inc., 75 Mass. App. Ct. 593, 599-600 (2009), citing
Darviris v. Petros, 442 Mass. 274, 278-281 (2004).
Here, the Wodinskys claim that because CMTF is a business
entity, and because the actions of its principals (the
15
Kettenbachs) at 303 Commonwealth were within the scope of CMTF's
stated business purpose, CMTF therefore must have acted in trade
or commerce.23 While this may be true, the record fails to show
that the Kettenbachs' actions were motivated by business, rather
than personal, reasons.24 Lantner v. Carson, supra at 608. See
Billings v. Wilson, 397 Mass. 614, 616 (1986) (reviewing court
"should examine whether the transaction is motivated by business
or personal reasons").
The Wodinskys introduced no evidence from which the jury
reasonably could have inferred a commercial purpose from the
Kettenbachs' actions.25 In fact, the Wodinskys sought to prove
that the Kettenbachs acted in their own personal interest.
According to the Wodinskys, the Kettenbachs selfishly desired to
acquire all five units at 303 Commonwealth and turn the building
into a private residence for themselves. As such, the
23
According to its forming documents as duly filed with the
Secretary of the Commonwealth, CMTF's business purpose is to
"develop, own, construct, operate, finance and manage real
property." Holding title to real estate and completing repair
or improvement projects at 303 Commonwealth appear to be within
the scope of CMTF's purpose.
24
We assume, as the jury found, that the actions of CMTF
and the Kettenbachs were unfair or deceptive, and focus
exclusively on whether the actions were in trade or commerce.
25
The Wodinskys assert that a transaction may have more
than one purpose, suggesting that both a personal and a
commercial purpose may have existed here. However, there was no
evidence from which the jury could have found a commercial
purpose.
16
Kettenbachs' actions here sprang from disagreements among
neighbors about their units in a single condominium building.
See Office One, Inc. v. Lopez, supra (no business context to
private dispute between trustees and owners of condominium
complex). Additionally, there was no evidence that the
Kettenbachs planned to sell or to rent any of the units in
question. Therefore, even though purchasing and holding title
to condominium units was within the scope of CMTF's business
purpose, there was no commercial character to the transactions
here. See McGonagle v. Home Depot U.S.A., Inc., supra. See
also Billings v. Wilson, supra (where landlord's motivation was
primarily personal, dealings with tenant not subject to c. 93A).
In light of the evidence presented at trial, the judge
properly determined that CMTF's actions had not been conducted
in the course of trade or commerce, reasoning that the
transactions at issue were "primarily private in nature" and no
financial motive underpinned CMTF's activities. Because the
actions against the Wodinskys did not take place in a business
context, the jury reasonably could not have found that CMTF
acted in trade or commerce. See Begelfer v. Najarian, 381 Mass.
177, 190-191 (1980); McGonagle v. Home Depot U.S.A., Inc.,
17
supra. As such, Crossen's and the Kettenbachs' motion for
judgment n.o.v. properly was granted.26
2. MCRA claim. Crossen and the Kettenbachs appeal from
the denial of their motion for judgment n.o.v. on the Wodinskys'
claim under the MCRA. Crossen and the Kettenbachs claim that
there was no credible evidence from which the jury could have
found coercive, intimidating, or threatening conduct against the
Wodinskys. We disagree.
To find a violation under the MCRA, plaintiffs "must prove
that (1) [their] exercise of enjoyment of rights secured by the
Constitution or the laws of either the United States or the
Commonwealth, (2) have been interfered with, or attempted to be
interfered with, and (3) that the interference or attempted
interference was by threats, intimidation or coercion." Buster
v. George W. Moore, Inc., 438 Mass. 635, 644 (2003) (citation
omitted). "Whether conduct constitutes coercion is examined
from an objective, reasonable person standard." Currier v.
National Bd. of Med. Examrs., 462 Mass. 1, 13 (2012).
The record contains ample evidence from which the jury
could have reasonably concluded that Crossen and the Kettenbachs
26
The private nature of the transactions here is even more
apparent as against the individual defendants. For
substantially the same reasons as discussed supra, we conclude
that Crossen and the Kettenbachs were not acting in trade or
commerce when they dealt with the Wodinskys. Thus, the judge
properly refused to submit those claims to the jury. See
Lantner v. Carson, supra.
18
coerced, intimidated, and threatened the Wodinskys in an effort
to force them out of their home. This evidence, much of which
Crossen and the Kettenbachs overlooked in their brief, includes:
the Kettenbachs' active attempts to condemn and decommission the
building's only elevator; the excessive period of time during
which the elevator was unusable, which forced the elderly
Wodinskys to walk up and down four flights of stairs; Crossen
and the Kettenbachs' manipulation of the board's voting process
to the Wodinskys' detriment; the Kettenbachs' demand that the
Wodinskys pay twenty percent of expensive, unneeded projects
that were not lawfully voted upon by the board; the Kettenbachs'
instituting litigation against the Wodinskys to collect such
payments while simultaneously forgiving the assessments of
another owner who agreed to sell her unit; and the Kettenbachs'
hiring of a private investigator to visit Bernadette at her work
place for the specific purpose of threatening the Wodinskys with
19
bankruptcy.27 The motion for judgment n.o.v. properly was denied
on this count.28
3. Abuse of process. The Kettenbachs also claim that
there was insufficient evidence to support the jury's verdict
that they committed abuse of process by instituting the board
action against the Wodinskys. We disagree.
To establish abuse of process, a plaintiff must prove "that
the process was used to accomplish some ulterior purpose for
which it was not designed or intended, or which was not the
legitimate purpose of the particular process employed."
Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760,
775-776 (1986), quoting from Beecy v. Pucciarelli, 387 Mass.
589, 595 (1982). "The essential elements of the tort are: (1)
27
The fact that the jury rejected the Wodinskys'
intentional infliction of emotional distress claim is not
inconsistent with their verdict on the MCRA claim. As the trial
judge properly noted, "Simply because the jury rejected the
[Wodinskys'] claim of intentional infliction of emotional
distress does not mean that the jury also rejected evidence that
they suffered emotional or psychological harm." Proof of
extreme and outrageous conduct is not required to find a
violation of the MCRA.
28
There was also no error in the jury's award of damages
even though physical harm was not proven. As the judge
correctly noted, the jury were entitled to award compensatory
damages for pain and suffering and emotional distress. See
Agoos Leather Cos. v. American & Foreign Ins. Co., 342 Mass.
603, 608 (1961) ("The amount of damages seldom can be proved
with the exactness of mathematical demonstration," [citation
omitted]). The Wodinskys adequately proved at trial such pain,
suffering, and emotional distress.
20
process was used; (2) for an ulterior or illegitimate purpose;
(3) resulting in damage." Id. at 775-776 (citation omitted).
As the trial judge properly determined, evidence was
presented from which the jury could have found that the
litigation instituted by the Kettenbachs to collect $31,487.57
from the Wodinskys was frivolous, and had as its motive the
ulterior purpose of forcing the Wodinskys out of their home.
The board, in whose name the lawsuit had been filed, never
authorized the disputed charges.29 Even though the mere filing
of a groundless claim does not by itself constitute abuse of
process, in this case, sufficient evidence existed to show the
Kettenbachs' ulterior motives. Indeed, they pursued the board
litigation as part of their strategy to coerce the Wodinskys
into selling their home. See Cohen v. Hurley, 20 Mass. App. Ct.
439, 442 (1985) (liability will be found where process used as
"a form of extortion" [citation omitted]). The motion for
judgment n.o.v. properly was denied on this claim as well.
4. Civil conspiracy. Crossen and the Kettenbachs also
claim that it was error to deny their motion for judgment n.o.v.
on the Wodinskys' civil conspiracy claim. Again, Crossen and
29
As discussed supra, Crossen lacked valid proxies to vote
at the March 26, 2009, meeting, and therefore, the board did not
authorize the roof and skylights contract that formed the basis
of the Kettenbachs' demands.
21
the Kettenbachs argue that insufficient evidence existed to
support the jury's verdict. We disagree.
To prove civil conspiracy, a plaintiff must show that two
or more defendants acted in concert, and that "there was some
'peculiar power of coercion of the plaintiff possessed by the
defendants in combination which any individual standing in a
like relation to the plaintiff would not have had.'" DesLauries
v. Shea, 300 Mass. 30, 33 (1938), quoting from Cummings v.
Harrington, 278 Mass. 527, 530 (1932). See Kurker v. Hill, 44
Mass. App. Ct. 184, 188-190 (1998).
In the present case, more than sufficient evidence existed
from which the jury could have found that Crossen and the
Kettenbachs conspired to force the Wodinskys from their home.
As the judge noted, Crossen acted as the representative of the
Kettenbachs throughout the events in question. He copied
Michael L. on virtually all of his e-mails, organized and
attended board meetings on Michael L.'s behalf, and acted at his
explicit direction when sending letters demanding payment of
expenses and inquiring about a possible sale of the Wodinskys'
unit. Frances, though not present at board meetings,
nevertheless orchestrated key parts of the elevator project,
ensured that the expenses to be charged to the Wodinskys were
documented, arranged for a lien to be placed on the Wodinskys'
unit, and communicated with the building's management company
22
throughout the period in question. The pressure brought by
Crossen and the Kettenbachs collectively vastly outweighed the
pressure any of them individually could have generated on the
Wodinskys. See DesLauries v. Shea, supra. The motion for
judgment n.o.v. on this claim properly was denied.
B. Condominium expenses. The Kettenbachs claim that the
Wodinskys should not have been permitted to contest the
assessment of $31,487.57 in condominium expenses as contribution
to the roof and skylights replacement contract. See Blood v.
Edgar's, Inc., 36 Mass. App. Ct. 402, 405-406 (1994). In Blood,
this court held that a condominium unit owner who wishes to
contest lawfully assessed common expenses first must pay under
protest, "absent a prior judicial determination of illegality."
Id. at 405. However, the Wodinskys have not run afoul of Blood.
The Wodinskys forwarded a check for the full amount
requested, but counsel (acting in the name of the board) refused
to accept that check in satisfaction of the expenses. Instead,
counsel stated that the check "fails to include interest,
attorney's fees and costs," purportedly to be included because
the payment was made after the thirty-day window given by
counsel. The Kettenbachs, through counsel, added $2,472.16 in
attorney's fees and expenses for what appears to be a late
payment of as few as four days.
23
Furthermore, the Wodinskys did not initially contest the
assessment in court. Rather, it was the Kettenbachs who
contested it by filing suit in the name of the board to seek
collection of the expenses. When the Wodinskys subsequently
filed their own action, they sought equitable relief in the form
of a preliminary injunction, as expressly permitted by Blood.
See id. at 406 ("If appropriate, the unit owner may . . .
petition the court for equitable relief"). That injunction
barred the Kettenbachs from further pursuing these expenses,
thus constituting precisely the type of "prior judicial
determination" needed to satisfy Blood. Id. at 405. There was
no error.30
C. Evidentiary rulings. Crossen and the Kettenbachs claim
that the judge erred by allowing the Wodinskys' motion in limine
that barred the introduction of evidence relative to the
Wodinskys' mortgage or personal finances. We disagree. The
judge held that introducing evidence of the Wodinskys' personal
finances and debt was irrelevant to the question whether the
Kettenbachs sought to force the Wodinskys from their home. We
30
The preliminary injunction was dissolved by the entering
of final judgment, which denied the Kettenbachs' claim for
condominium expenses. Therefore, any appeal of this question is
moot. Judge Rotenberg Educ. Center, Inc. v. Commissioner of the
Dept. of Mental Retardation (No. 2), 424 Mass. 471, 472 (1997)
("A preliminary injunction lapses when a final decree is
entered").
24
find no abuse of discretion or legal error in excluding this
evidence. See Zucco v. Kane, 439 Mass. 503, 507 (2003).
D. Attorney's fees. The Wodinskys are entitled to
attorney's fees as the prevailing plaintiff in a MCRA claim.
See G. L. c. 12, § 11I. Even though the Wodinskys did not
prevail on all of their other claims, the trial judge properly
found that the claims on which the Wodinskys were not successful
were "sufficiently interconnected" with the claims on which they
did prevail. Killeen v. Westban Hotel Venture, LP, 69 Mass.
App. Ct. 784, 792 (2007) (citation omitted). We discern neither
error nor an abuse of discretion in the judge's determination.
See Batchelder v. Allied Stores Corp., 393 Mass. 819, 822 (1985)
("a party prevails under G. L. c. 12, § 11I[,] when he or she
achieves success on a substantial question of law arising out of
a common nucleus of facts that gives rise to a cause of action
under the statute").
The judge reduced by one-half the fee award of Attorney
Donald N. Sweeney, who claimed to have devoted 3,318.75 hours to
the case. As the prevailing plaintiff seeking attorney's fees,
the Wodinskys had the burden of proving that the amount of time
billed and the nature of the work done both were reasonable.
The judge was well within his discretion to conclude that the
records submitted by Sweeney were inadequate to allow a proper
evaluation of the precise nature of his work. For example, some
25
of the submitted records reduce whole days of work into one
sentence or less. The judge, having observed counsel's work and
conduct firsthand, was in the best position to evaluate the
reasonableness of counsel's fees and time, and we have not been
provided with adequate reasons to question on appeal the judge's
resolution of the matter. See Twin Fires Inv., LLC v. Morgan
Stanley Dean Witter & Co., 445 Mass. 411, 428 (2005).
As the Wodinskys have prevailed in their MCRA claim on
appeal, the provisions of that statute entitle them to appellate
attorney's fees as well. See Yorke Mgmt. v. Castro, 406 Mass.
17, 19 (1989) ("The statutory provisions for a reasonable
attorney's fee would ring hollow if it did not necessarily
include a fee for the appeal" [citation omitted]). See also
Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts
Commn. Against Discrimination, 449 Mass. 675, 688-689 (2007).
Accordingly, the Wodinskys may proceed in conformance with the
procedure outlined in Fabre v. Walton, 441 Mass. 9, 10-11
(2004), by providing to this court within fourteen days of the
date of the rescript supporting documentation of their appellate
attorney's fees. Crossen and the Kettenbachs will have fourteen
days thereafter to respond. Id. at 11.31
Amended judgments entered
December 4, 2012, affirmed.
31
We deny Crossen's and the Kettenbachs' request for
appellate attorney's fees.
26
Single justice orders entered
March 25, 2014, and
April 8, 2014, affirmed.