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Appeals Court Allows Massachusetts Civil Rights Act, Abuse of Process, and Civil Conspiracy Claims in Condo Case

When the relationship between condominium owners turns sour, the result can sometimes be lengthy and complex litigation, as occurred in the recent case of Wodinsky v. Kettenbach. This case involved two separate lawsuits that were consolidated for trial.

First, the board of trustees of the condominium trust filed suit against the Wodinskys to recover their share of the assessment for a new roof and skylights, late fees, attorney's fees, and costs, and to place a lien on the Wodinskys' unit. The Wodinskys filed suit against Mr. Kettenbach, individually and as trustee of the condominium trust, Mrs. Kettenbach, individually and as manager of CMTF, LP, and Mr. Crossen, individually and as manager of a realty trust. The Wodinskys' claims included claims under the Massachusetts Consumer Protection Act, General Laws chapter 93A, and the Massachusetts Civil Rights Act ("MCRA"). The claims also included civil conspiracy and abuse of process.

The facts are long and complex, with the appeals court reporting them in the light most favorable to the Wodinskys. The Wodinskys owned a unit in the building since 1977. The Kettenbachs purchased a unit in 1996 and transferred title to CMTF, a limited partnership they controlled. The Kettenbachs wanted all of the units so they could turn the building into a single-family home.

The Kettenbachs proposed "repairs" that the Wodinskys said were not needed. Pursuant to the condominium documents, the board had to approve any repairs or improvements, and the Wodinskys would be responsible for 20% of all assessments. Mr. Wodinsky and Mr. Kettenbach were both members of the board.

At one point, the Kettenbachs claimed the roof leaked and sought to replace the roof and skylights. Without board approval, Mr. Kettenbach individually signed a contract for replacement of the roof and skylights.

The Kettenbachs sought retroactive approval of the contract at a board meeting. Mr. Kettenbach's two sons had been elected trustees, but they had not yet accepted or recorded the appointments. Mr. Crossen appeared at the meeting, purportedly as the representative of Mr. Kettenbach and his sons, who did not attend. Mr. Wodinsky and another trustee, who owned one of the other units, voted against the improvements, but Mr. Crossen voted on behalf of Mr. Kettenbach and his two sons.

Mr. Crossen demanded payment for 20% of the cost of the roof and skylights from the Wodinskys and the name of the Wodinskys' mortgagee. The other unit owner received similar demands and sold her unit to the Kettenbachs through the trust, and her assessment was forgiven. She testified she felt forced out because she could not afford the improvements or legal fees.

After receiving a demand letter from an attorney, the Wodinskys paid the assessment "under protest." The attorney refused to accept the check as satisfaction and demanded attorney's fees and costs. The Wodinskys stopped payment. The Kettenbachs then filed suit on behalf of the board for the expenses, late fees, attorney's fees, and costs. They also sought a lien on the Wodinskys' property for failure to pay the expenses.

There was also a dispute over the elevator. An inspection required issues with the elevator to be corrected within 30 days, or the elevator would be shut down. The elevator maintenance company said the system could be repaired, or they could replace it. The Kettenbachs, however, rejected that proposal and hired another company to replace the elevator system for significantly more. The elevator was inoperable for about 10 months. The Wodinskys had to use the stairs to reach their fourth-floor unit. Mr. Wodinsky was 84 years old at the time of the trial, and his wife was 68.

After receiving a letter regarding a board meeting to discuss the elevator replacement, the heating system, and the costs of litigation against the Wodinskys, the Wodinskys filed suit. They were also granted a preliminary injunction to prevent further collection proceedings against them.

The cases were consolidated, and the jury returned a verdict in favor of the Wodinskys in the board suit and on most of their claims. The trial judge granted Crossen's and the Kettenbachs' motion for judgment notwithstanding the verdict on the General Laws chapter 93A claim against CMTF.

The Wodinskys appealed the judgment notwithstanding the verdict on the 93A claim, and Crossen and the Kettenbachs appealed the denial of judgment notwithstanding the verdict for the other claims.

The appeals court upheld the judgment notwithstanding the verdict on the Chapter 93A claim, finding that the acts did not occur in trade or commerce. The appeals court found that, although CMTF was a business entity, there was no evidence that the actions in question were commercial in nature.

Mr. Crossen and the Kettenbachs appealed the denial of the motion for judgment notwithstanding the verdict on the MCRA claims. The appeals court found sufficient evidence for a jury to determine that Crossen and the Kettenbachs had coerced, intimidated, and threatened the Wodinskys in an attempt to force them from the condominium. The defendants' motion was properly denied.

As to the abuse of process claim, the board had not properly authorized the assessment that formed the basis of the lawsuit. The jury found that the trustees who were not present had not issued proxies, and the votes submitted by Mr. Crossen were invalid. There was sufficient evidence for the jury to find that the Kettenbachs had ulterior motives and pursued litigation to get the Wodinskys to sell. The trial court did not err in denying the defendants' motion.

The appeals court also found sufficient evidence to support the civil conspiracy verdict.

The Kettenbachs argued that the Wodinskys should not have been allowed to contest the roof and skylight assessment. A condominium unit owner must pay under protest to contest a lawfully assessed common expense, unless there was a judicial determination that it had been illegal. The Wodinskys sent a check, but the board's counsel refused to accept it. Furthermore, the Wodinskys did not contest the assessment in court, but they sought a preliminary injunction after the Kettenbachs filed suit to collect.

This case shows how extensive and varied claims involving condominium assessment disputes can be. If you have a legal issue involving condominium law, an experienced Massachusetts real estate attorney can assist you. Contact the Law Offices of Richard Mucci at (781) 729-3999 to discuss your case.

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