Opinion
14-P-65
10-24-2014
NICOLE FINNERAN v. COLONIAL VILLAGE CONDOMINIUM ASSOCIATION & others.
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
Defendants Colonial Village Condominium Association and the members of its board of directors (collectively, Colonial), appeal from a Superior Court summary judgment dismissing Colonial's counterclaims against the plaintiff Nicole Finneran. For the following reasons, we reverse in part and remand for additional proceedings.
Although the Superior Court docket does not reflect the entry of a paper denominated as the (summary) judgment, it does show (1) the entry of the judge's "Findings, Rulings and Order for Entry of Judgment" which, resolving the parties' cross motions for summary judgment, orders the dismissal of all remaining claims with prejudice, and (2) the mailing to the parties of a "notice of judgment" and a "copy of [j]udgment." In the circumstances, we conclude that a judgment properly entered under the procedural rules (and thus that the notice of appeal was not premature and did properly bring that judgment before us). See Mass.R.Civ.P. 58(a), as amended, 371 Mass. 908 (1977); Lewis v. Emerson, 391 Mass. 517, 519-520 (1984); Brown v. Quinn, 27 Mass. App. Ct. 288, 289-290 (1989).
Only the counterclaims are before us. The parties had agreed to an earlier judgment on count I of Finneran's complaint, for preliminary injunctive relief. The summary judgment then dismissed Finneran's remaining claims and, because she has not cross-appealed, we affirm that part of the judgment.
1. Sufficiency of the pleadings. In considering the parties' cross motions for summary judgment, the judge dismissed Colonial's counterclaims on the ground that it failed to plead sufficiently detailed allegations to support its claims. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). By resolving the summary judgment motion on the ground that the pleadings were insufficient, the judge erred. A party who files a summary judgment motion tacitly concedes the validity of the other party's pleading. See Smith v. Massimiano, 414 Mass. 81, 85 (1993) ("[A] complaint is not properly challenged by a motion for summary judgment"); Finn v. Natl. Union Fire Ins. Co. of Pittsburgh, Pa., 452 Mass. 690, 692 n.7 (2008) ("A motion for summary judgment . . . does not challenge the validity of the pleading, but rather focuses on the merits of the controversy"). It was error to allow Finneran's summary judgment motion and deny Colonial's cross motion for summary judgment on this ground.
2. Order staying discovery. Colonial claims that discovery was prematurely halted when the judge stayed discovery in response to Finneran's motion for a protective order. We agree and conclude that as a consequence the record was not ripe for summary judgment when those motions were decided.
Even though, as discussed supra, the judge disposed of the defendants' counterclaims on the ground of deficient pleading, for the purposes of our decision we nevertheless treat his order as dispositive of the parties' summary judgment motions, as it appears he intended.
Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, there remains no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). "The moving party bears the burden of affirmatively demonstrating the absence of a triable issue." Lev v. Beverly Enterprises-Mass, Inc., 457 Mass. 234, 237 (2010).
Both parties were entitled to a reasonable opportunity to discover relevant facts and develop a full record before the case was deemed ripe for summary judgment. See LaLonde v. Eissner, 405 Mass. 207, 209 (1989) ("[T]he opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment"). Here, a full record was not developed and several material facts remain in dispute. Nonetheless, the judge found as fact that Finneran's third-floor loft was not a health, safety, or fire hazard. This was improper. See Attorney Gen. v. Bailey, 386 Mass. 367, 370 (1982) ("In considering a motion for summary judgment, the court does not ' . . . make [its] own decision of facts'" [citation omitted]). Additionally, the facts as found by the judge were clearly erroneous, as they had no support in the record.
The judge mistakenly concluded that the permits issued by the city to re-roof the building, remediate mold, and install a vent, somehow constituted city approval of the attic improvement, heating, and electric project done before Finneran moved into the unit. There was nothing in the record from which the judge could have so concluded. Finneran makes the same erroneous claim on appeal.
The record is undeveloped as to whether Finneran was a bona fide purchaser of the townhouse, yet the judge found that she was. Finneran's claim of innocent status is certainly plausible, but on summary judgment that is not enough. See Attorney Gen. v. Bailey, supra ("A court should not grant a party's motion for summary judgment 'merely because the facts [s]he offers appear more plausible than those tendered in opposition'" [citation omitted]). On this record it is also plausible that Finneran was not innocent, and that she had actual or constructive notice of the unauthorized nature of the attic improvements. The judge should have permitted the parties to complete discovery on this point, especially where this question is critical to resolving whether Colonial was guilty of laches for failing to assert its rights under the master deed and other condominium documents, including the "no waiver" provision contained therein.
In arguing that Finneran was not an innocent purchaser, Colonial states that Finneran "should have hired an attorney" to review relevant documents before the closing. This statement is also unsupported: nothing in the record indicates whether or not Finneran was represented by counsel.
In sum, it is clear that the parties have not sufficiently developed a summary judgment record, and neither party was entitled to summary judgment on the basis of plausible speculation. The judge should not have prematurely stayed discovery and then dismissed Colonial's case with prejudice on the ground that its counterclaims failed the pleadings test, as Finneran had already conceded that point. The parties raise several other claims on appeal, each of which either lacks merit or is rendered moot by our actions herein.
We note that given its objection to halting discovery, Colonial's counsel was entitled to -- and should have -- filed a motion to continue discovery under Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974). See First Natl. Bank of Boston v. Slade, 379 Mass. 243, 244-245 (1979). However, we also note that Colonial had outstanding interrogatories and requests for admissions at the time discovery was stayed. Given that the judge abused his discretion in ordering summary judgment, and given Colonial's outstanding discovery requests which it noted in its opposition to Finneran's motion for summary judgment, strict compliance with rule 56(f) can be excused in this instance. See ibid.; First Chicago Intl. v. United Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988) (similar facts interpreted under Fed.R.Civ.P. 56[f]); 10B Wright et al., Federal Practice & Procedure § 2740 n.14 (1998 & Supp. 2014).
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So much of the judgment as dismisses the counterclaims is reversed, and an order shall enter denying both motions for summary judgment on the counterclaims without prejudice. The judgment is otherwise affirmed. The order staying discovery is vacated and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Grasso,
Kantrowitz & Meade, JJ.),
Clerk Entered: October 24, 2014.