Opinion
No. 15–P–1427.
12-08-2016
TRUSTEES OF the PARK PLACE CONDOMINIUM TRUST v. BASIC DEVICES, LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the defendant, Basic Devices, LLC, from a summary judgment entered in favor of the plaintiffs, trustees of the Park Place Condominium Trust. The defendant argues that the motion judge erred in granting the plaintiffs' motion because there are disputed questions of material fact that bar summary judgment. We disagree, as we conclude that the plaintiffs have the authority to assess the common expenses and various fees. We also conclude that the defendant is not permitted to challenge the validity of the fees by refusing to pay them. Accordingly, we affirm the judgment.
Background. Park Place Condominium (Park Place) is a condominium located in Worcester. The Park Place master deed authorizes the election of trustees to manage the condominiums. The plaintiffs are the trustees of the Park Place Condominium Trust, established under a declaration of trust in accordance with the master deed. Together, the master deed, the declaration of trust, and G.L. c. 183A authorize the plaintiffs to issue monthly assessments for upkeep of the common areas of Park Place (common expenses).
The defendant is the owner of unit 1. Essentially, the plaintiffs allege that the defendant is delinquent on its common expenses, which now include late fees, collection fees, attorney's fees, and a littering fine. After sending several letters to the defendant and unsuccessful attempts to resolve the matter, the plaintiffs initiated the instant proceedings. The defendant argued that it is current on payment of all validly assessed expenses, and that the unpaid portion consists of fees that the plaintiffs were not authorized to assess. The parties filed cross motions for summary judgment. After a hearing, the motion judge granted the plaintiffs' motion, confirmed the lien on the unit, and ordered the sale of the unit to satisfy the lien. The defendant now appeals.
Discussion. "The standard of review of a grant of summary judgment is 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 a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). Once the moving party establishes the absence of a triable issue, the nonmoving party must respond by setting forth specific facts showing that a genuine issue exists. See Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). To do so, the nonmoving party must do more than "rest on [its] pleadings and mere assertions of disputed facts." LaLonde v. Eissner, 405 Mass. 207, 209 (1989).
General Laws c. 183A governs the creation and administration of condominiums. Section 6(b ) of that chapter states that a condominium unit owner "shall be personally liable for all sums assessed for [its] share of the common expenses including late charges, fines, penalties, and interest assessed by the organization of unit owners and all costs of collection including attorneys' fees, costs, and charges." G.L. c. 183A, § 6(b), inserted by St.1992, c. 400, § 7. If a unit owner fails to pay these expenses, "[t]he organization of unit owners shall have a lien on a unit for any common expense assessment levied ... from the time the assessment becomes due." G.L. c. 183A, § 6(a ) (i), inserted by St.1992, c. 400, § 7.
General Laws c. 183A, § 10(b )(5), inserted by St.1992, c. 400, § 13, further empowers condominium trustees "[t]o impose charges ... for the late payment of common expense assessments or other charges, and to levy reasonable fines for violations of the master deed, trust, by-laws, restrictions, rules or regulations of the organization of unit owners." These charges, as well as expenses incurred in the collection of delinquent charges, constitute "common expenses." G.L. c. 183A, § 10(b ), inserted by St.1963, c. 493, § 1. It is undisputed that the defendant has been, and currently is, delinquent on its bill. Thus, the plaintiffs were entitled to assess and collect reasonable late fees and the littering fine, under the authority of c. 183A.
The defendant's payment by check dated March 13, 2014, which cleared the same day, was not the full amount owed and was insufficient to bring the account up to date. The defendant claims in its brief that it "figured that it owed about $1,068.00 in common expense fees" at that time. At the motion hearing, the defendant's attorney acknowledged that his client had read an earlier ledger, which was enclosed with the statutory letter dated February 21, 2014, "sometime in February[, 2014]." Both the ledger and the letter notified the defendant that the amount of the lien, as of February 19, 2014, stood at $1,167.25, inclusive of collection costs and attorney's fees. Thus, the partial payment did not bar the plaintiffs from imposing a late fee and other subsequent charges as the defendant continued to resist the payment of all fees due.
The motion judge also properly rejected, on procedural grounds, the unit owner's challenge to the lawfulness of several individual assessments. This court has consistently held that "a unit owner in a condominium may not challenge a common expense assessment by refusing to pay it." Blood v. Edgar's, Inc., 36 Mass.App.Ct. 402, 404 (1994). Where, as here, the defendant failed to follow the procedural path prescribed in our case law, it was precluded from challenging the lawfulness of the assessments in this action. See Drummer Boy Homes Assn., Inc. v. Britton, 474 Mass. 17, 20 & n. 10 (2016), and cases cited. To the extent that the defendant continues to challenge the plaintiffs' justification for the fees and fines, this rule applies with equal force in this appeal.
Although our case law recognizes that there may be an exception to the general rule in "extraordinary circumstances," the defendant has not argued, and we do not find, that the circumstances warrant its application here. See Trustees of the Prince Condominium Trust v. Prosser, 412 Mass. 723, 726 (1992).
For the first time on appeal, the defendant argues that the plaintiffs were not entitled to assess collection fees because they failed to show that the expenses were "incurred." The defendant's notice arguments, some of which are inconsistent with the factual record, also were not brought to the attention of the motion judge. These issues are not properly before us and are deemed waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
In conclusion, although the defendant purported to dispute the plaintiffs' facts, it failed to set forth any specific facts showing that there is a genuine issue for trial. In addition, as the motion judge recognized, once the lien under c. 183A was established, she was required to enter an order authorizing the sale of the unit to satisfy the amount of the lien. See G.L. c. 254, § 5A ; Baker v. Monga, 32 Mass.App.Ct. 450, 451–453 (1992). There was no error. Accordingly, we affirm the judgment.
The defendant's motion for leave to file an additional supplemental appendix is hereby allowed, and we address the issue here. The United States Postal Service only keeps records of certified mail tracking information for "up to two (2) years." http://faq.usps.com (last visited Dec. 6, 2016). We take judicial notice of this fact. Federal Natl. Mort. Assn. v. Therrian, 42 Mass.App.Ct. 523, 525 (1997). Thus, the lack of tracking information more than two years after the letter at issue was delivered is not conclusive evidence that the defendant did not receive notice from the plaintiffs. Furthermore, the defendant received numerous letters from the plaintiffs that indicated their intent to file suit if the matter was not resolved.
The plaintiffs' request for appellate attorney's fees and costs, pursuant to G.L. c. 183A, § 6, is granted. In accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10–11 (2004), the plaintiffs' verified and itemized application for fees and costs may be filed within fourteen days of the date of the rescript. The defendant will have fourteen days thereafter to file any opposition to the amounts requested.
Judgment affirmed.