Opinion
21-P-792
06-10-2022
CHRISTINE CONNOLLY [1] v. ERIN MOORE & others. [2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Christine Connolly, owns a unit in the 11 Irving Street Condominium (condominium), a nine unit residential building in the Beacon Hill neighborhood of Boston. The defendants, Erin Moore, David Sherf, and Eric Pierce (collectively, trustees), are responsible for the management of the condominium. Connolly brought the underlying action against the trustees in the Superior Court alleging, inter alia, breaches of fiduciary duty in relation to the outdoor stairwell leading into her unit. At the center of the controversy is a gate that Connolly caused to be installed at the top of the stairwell without the trustees' approval and without necessary local permits. The city of Boston issued a violation notice to the trustees for failure to obtain a permit for installation of the gate, and the trustees, in turn, began assessing fines against Connolly "until the Gate is removed." A judge allowed Connolly's request for a preliminary injunction in part, requiring the trustees to sign applications with the local licensing authority for approval of the installation of the gate. The trustees filed this interlocutory appeal from the judge's order under G. L. c. 231, § 118, second par. For the reasons that follow, we vacate so much of the judge's order as required the trustees to "take all necessary steps to obtain approval for the installation of the gate."
David Sherf and Eric Pierce, all individually and in their capacities as "purported acting trustees of the 11 Irving Street Condominium Trust."
Connolly challenges the validity of the trustees' appointment, referring to them in her brief as "purported trustees," but she assumes their authority for the purpose of this appeal. Accordingly, we refer to Moore, Sherf, and Pierce as the trustees without comment on the propriety of their appointment.
The notice, addressed to "Owner or in control of property," indicated that the "condition" could be remedied by securing a permit or removing the gate. The trustees did not take action to remove the gate at that time.
Background.
The following facts, taken from Connolly's verified complaint and relied upon by the judge in her order, are not disputed on appeal. In 2017, Connolly purchased the condominium's Unit B, a basement unit that could be accessed by an outdoor stairwell to the left of the condominium's main entrance. The outdoor stairwell was one of the condominium's common areas and so was owned collectively by the condominium's unit owners. See Berish v. Bornstein, 437 Mass. 252, 263 (2002) ("condominium unit owners cede the management and control of the common areas to the organization of unit owners"). Under the condominium's bylaws, the trustees controlled the common areas and were responsible for maintaining them.
The judge denied Connolly's other requests for relief; she did not appeal.
In light of our disposition, we need not consider whether the trustees' purported appeal from the order entered August 19, 2021, denying their untimely motion for reconsideration is properly before us; nor need we otherwise address that order.
Beginning in 2018, Connolly informed the trustees that trespassers in the outdoor stairwell were regularly engaging in behavior such as "urinating and defecating . . . having sexual intercourse . . . illegal drug activity, the depositing of drug paraphernalia, loitering and cigarette smoking . . . and other nefarious activities." No action was taken by the trustees to address these concerns. Connolly also filed reports with the police and met with city officials, but the trespasses continued.
In September of 2020, Connolly sought permission from the trustees to install an unlocked gate at the top of the outdoor stairwell. For reasons that are not apparent from the record, the trustees did not approve the request. Connolly nevertheless sought approval for the gate on her own from the Beacon Hill Architectural Commission (BHAC). The BHAC declined to consider Connolly's application unless it was endorsed by the trustees. When the trespassing continued, Connolly had the gate installed at her own expense and without the required permits. As a result, the city of Boston Inspectional Services Department issued a violation notice against the trustees, requiring them either to obtain a permit or to remove the gate. In response to Connolly's renewed demand that the trustees apply for the required permit, the trustees again declined to do so and instead began levying a $100 fine against Connolly for each day that the gate remained in place.
We reserve certain other undisputed facts for later discussion.
Section 5.3.1 of the condominium bylaws imposes an obligation on the trustees to maintain, repair, and replace the common areas of the condominium.
Connolly filed the underlying action seeking declaratory and other relief against the trustees based on a claim of breach of fiduciary duty. Relevant to this appeal, and in pertinent part, she also sought a preliminary injunction requiring the trustees to take affirmative steps to obtain the necessary approvals for the gate Connolly had caused to be installed. A judge granted the injunction, reasoning that because the trustees had both a duty to maintain the outdoor stairwell "in a safe and secure condition" and a "special relationship" with Connolly that obligated the trustees to prevent the trespasses at issue in Connolly's complaint, Connolly had demonstrated a likelihood of succeeding on her claims against the trustees. The judge's order stated that, "The Defendants shall immediately, and in no event later than thirty days after the date of this order, take all necessary steps to obtain approval for the installation of the gate at the top of the outdoor stairwell."
BHAC has statutory authority to review and regulate proposed alteration, construction, reconstruction, or demolition of any exterior architectural feature within the Beacon Hill neighborhood district.
Discussion.
1. Standard of review.
We review the grant of a preliminary injunction for abuse of discretion or other error of law, "that is, whether the judge applied proper legal standards and whether there was reasonable support for [her] evaluation of factual questions." Doe v. Superintendent of Schs. of Weston, 461 Mass. 159, 164 (2011), quoting Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 741 (2008). In doing so, we consider whether the moving party demonstrated a likelihood of success on the merits, irreparable harm as result of a denial of the injunction, and whether "in light of the moving party's likelihood of success on the merits, the risk of irreparable harm to the moving party outweighs the potential harm to the nonmoving party in granting the injunction." Massachusetts Port Auth. v. Turo Inc., 487 Mass. 235, 239 (2021).
2. Trustees' arguments.
At the heart of the trustees' appeal is their contention that the installation of the gate is not, as the judge concluded, an extension of their duty to "maintain" the condominium's common areas, but is instead an "improvement" that the bylaws make subject to approval by the organization of unit owners. The trustees have at least a strong argument that the gate qualifies as an "improvement." See Hawkins v. Jamaicaway Place Condominium Trust, 409 Mass. 1005, 1005-1006 (1991) (assuming without discussion that bars placed on all first floor windows, if installation costs were to be shared equally among all unit owners, would be an "improvement" requiring approval by seventy-five percent of unit owners). If so, then under the express terms of the bylaws its approval was not within the trustees' sole discretion or authority.
No fines associated with the violation notice have been assessed against the trustees.
We are not unsympathetic to Connolly's argument that the trustees nevertheless might have an obligation to prevent third parties who pose serious health and safety risks from accessing the outdoor stairwell. See, e.g., Fund v. Hotel Lenox of Boston, Inc., 418 Mass. 191, 192-193 (1994) (hotel had duty to provide reasonable security measures that "probably would have prevented the type of crime that resulted"); Mullins v. Pine Manor College, 389 Mass. 47, 54 (1983) (college has duty to protect resident students) . However, we need not resolve whether Connolly has demonstrated a substantial likelihood of succeeding on the merits of this issue because the particular relief the judge allowed here goes too far.
3. Propriety of preliminary injunctive relief.
"A preliminary injunction ordinarily is issued to preserve the status quo pending the outcome of litigation." Doe, 461 Mass. at 164. At the time the injunction issued, the gate was in place. As the trustees acknowledged, the status quo in this case could have been maintained "by allowing Connolly to retain the gated fence until such time as the Court render[ed] a ruling on the merits." Instead, the injunction here required the trustees to make affirmative changes to the existing status quo by "tak[ing] all necessary steps to obtain approval for the installation of the gate." In imposing these affirmative obligations, which were not required to keep the gate in place, and which addressed, at best, economic considerations in the form of fines by the city and the condominium association, the judge went beyond maintaining the status quo. We agree with the trustees that in the circumstances of this case, the order exceeded the permissible limits of a preliminary injunction. See Garcia v. Department of Hous. and Community Dev., 480 Mass. 736, 752 n.16 (2018) (cautioning against preliminary injunctions requiring "significant affirmative action, possibly with unintended adverse consequences"). Contrast Petricca Constr. Co. v. Commonwealth, 37 Mass.App.Ct. 392, 400 (1994) ("there is no per se prohibition against granting an applicant, through a preliminary injunction, all of the ultimate relief the applicant seeks ... if its issuance is the only way to preserve the status quo and it promotes the public interest to do so"). Accordingly, we conclude that it was an abuse of discretion to grant the preliminary injunction.
Connolly's verified complaint also included claims of intentional infliction of emotional distress, fraud and misrepresentation, and conversion.
See Declaration of Trust § 5.5.2 ("any improvement to the common areas and facilities of the Condominium" cannot be commenced by the trustees without approval by unit owners holding "seventy-five percent or more of the beneficial interest").
Indeed, the trustees did not ask the court to remove the gate prior to the conclusion of litigation. While leaving the gate installed without a permit may incur other harms to the parties, that issue is not before us.
Conclusion.
So much of the preliminary injunction order entered June 24, 2021, as required the trustees to "take all necessary steps to obtain approval for the installation of the gate . . . including seeking and signing all necessary approvals, permits, forms, or authorizations from the requisite authorities ... on behalf of the Trust" is vacated and the preliminary injunction is dissolved. In all other respects the order is affirmed.
So ordered.
The panelists are listed in order of seniority.