Opinion
14-P-317
12-18-2014
LARISA YAKUSHINA & others v. RITA LAGRECA & others, trustees.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case involves a challenge by condominium unit owners to a monetary assessment that a condominium trust imposed after tenants allegedly violated the condominium rules. The unit owners appeal from the court's denial of their motion for reconsideration on the trust's motion to dismiss. While we are sympathetic to the appellants, we nonetheless are constrained to affirm.
Background. The plaintiffs are owners of a unit at the Fellsway West Condominium. The defendants are members of the board of trustees that governs the Fellsway West Condominium Trust (trust). The trust established administrative rules and regulations that require unit owners and their tenants to adhere to certain procedures when moving into or out of the condominium units. The condominium's organizational documents allow the trust to impose monetary assessments on unit owners for violations. On August 28 and 29, 2012, trustees allegedly observed the plaintiffs' tenants moving out of the unit in a manner that violated the condominium rules. The trust claimed that video recordings from security cameras confirmed the violations. On August 30, 2012, the trust imposed an assessment of $1,450, due by September 13, 2012. The owners argued that no violations occurred and presented evidence supporting that view. The trust allowed them to speak at an October 9, 2012, trust meeting. The trust maintained the assessments.
The condominium trust contended that the violations included propping a door open, leaving the door unattended, and not scheduling the "partial" moves.
The unit owners missed the due date and did not pay the assessment before filing their complaint on February 22, 2013. They eventually paid the assessment on March 28, 2013, and then filed an amended complaint. On November 4, 2013, the court allowed the trust's motion to dismiss the amended complaint because the unit owners had not paid the fines before filing their initial complaint. On December 9, 2013, the court denied the unit owners' motion for reconsideration. On January 6, 2014, the unit owners filed a notice of appeal only from the denial of the motion for reconsideration.
The trust filed a motion to dismiss because the unit owners had not paid the assessment. The unit owners filed an amended complaint on March 28, 2013, that reflected their eventual payment. On April 16, 2013, the court allowed the trust's motion to dismiss the original complaint, apparently without knowledge of the amended complaint, but on June 18, 2013, the court vacated its order.
In the notice of appeal, the plaintiffs appeal "from the [o]rder denying motion for reconsideration of ruling on motion to dismiss plaintiffs' first amended complaint from the final judgment entered in this action on December 9, 2013."
Notice of appeal. The plaintiffs' notice of appeal states that they are appealing from the denial of the motion for reconsideration on December 9, 2013, and not the order granting the trust's motion to dismiss on November 4, 2013 (or the judgment of dismissal dated the next day). Under Mass.R.A.P. 3(c), as appearing in 430 Mass. 1602 (1999), "[t]he notice of appeal . . . shall, in civil cases, designate the judgment, decree, adjudication, order, or part thereof appealed from." Challenges to the validity of rulings not included in the notice of appeal are "not properly before this court and will not be considered on appeal." Robinson v. Boston, 71 Mass. App. Ct. 765, 771 (2008), quoting from Siles v. Travenol Labs., Inc., 13 Mass. App. Ct. 354, 354 n.1 (1982). An appeal that fails to cite cases and make legal arguments regarding an issue does not rise to level of appellate argument. See Commonwealth v. O'Brien, 423 Mass. 841, 851 n.17 (1996).
Here, the plaintiffs' notice of appeal included only the denial of the motion to reconsider. We do not consider the plaintiffs' challenges to the order granting the defendants' motion to dismiss because that order is not properly before us. See Robinson v. Boston, supra. The plaintiffs' brief and reply brief contain no arguments on why the judge's denial of the motion to reconsider was in error. As such, the appeal from the denial of the motion to reconsider fails to rise to the level of appellate argument. See Commonwealth v. O'Brien, supra.
C ommon expense assessments. Even if we were to overlook these procedural defects, the plaintiffs would fare no better. In their appeal, the unit owners raise the argument that the assessment at issue was not a common expense assessment that required payment before bringing a challenge under Blood v. Edgar's, Inc., 36 Mass. App. Ct. 402, 404 (1994). It appears from the condominium documents and G. L. c. 183A, § 6(a)(ii), that the fines were to be considered common expenses.
The defendants argue that this issue was waived by the plaintiffs as it was not raised nor argued below. We need not address this argument as we resolve the issue on other grounds.
"'Common Expenses' shall mean the expenses of administration, operation, maintenance, repair or replacement of the Common Elements, expenses declared Common Expenses herein or by Chapter 183A, and betterment and other assessments referred to in Chapter 183A which are assessed by the trustees" (emphases supplied). Declaration of Trust of Fellsway West Condominium Trust, Article II, § 2.4.
"The organization of unit owners may also assess any fees, . . . charges, . . . [and] fines . . . against the unit owner and such assessment shall constitute a lien against the unit from the time the assessment is due, and shall be enforceable as common expense assessments under this chapter" (emphasis supplied). G. L. c. 183A, § 6(a)(ii), as amended by St. 1992, c. 400, § 7.
While an argument can be made that the fine was both severe and unmerited under the facts, the plaintiffs theoretically may try to change the make-up of the board, electing those who are more attuned to their views.
Order denying plaintiffs' motion for reconsideration of order allowing defendants' motion to dismiss is affirmed.
By the Court (Kantrowitz, Graham & Katzmann, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 18, 2014.