Opinion
No. 03-08.
October 30, 2006.
MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
INTRODUCTION
This action is a dispute between owners of a time share condominium unit and the trustees and manager of the condominium. The plaintiffs, Quentin and Sarah Walsh, challenge certain rules of the condominium, and also assert tort claims. Before the Court are the parties' cross motions for summary judgment. After hearing and review, the Court concludes that no genuine dispute of material fact exists, and that the defendants are entitled to judgment as a matter of law.
BACKGROUND
The materials before the Court provide the following factual background. 1. The Condominium and the Rule-Making Powers of the Trustees.
The plaintiffs' response to the defendants' statement of undisputed material facts fails to distinguish between evidence and argument, and in that respect has hampered the Court's task. See Dziamba v. Warner Stackpole, LLC, 56 Mass. App. Ct. 397, 398-401 (2002). The plaintiffs' affidavits, similarly, offer more argument than fact, while their memorandum recites facts that do not appear in any evidentiary materials. The Court has carefully examined all materials submitted, and sets forth here those facts that the evidentiary record establishes as undisputed, along with the plaintiffs' versions of any material facts that appear to be genuinely in dispute based on affidavits, deposition testimony, or other evidentiary materials.
The plaintiffs are owners of interval units at the Harborside Inn, a time-share condominium in Edgartown, Massachusetts. The defendants are the trustees of the condominium trust and its manager, Joseph Badot. The common elements of the Inn include three piers, with space for docking boats. The trustees have adopted programs to license dock space to the public as a means of generating income for the trust. Income generated by licensing of dock space serves to offset expenses of operating the Inn, thereby reducing unit owners' maintenance fees.
The declaration of trust, at § 5.12(i), authorizes a majority of the trustees to adopt "such rules and regulations from time to time as they may determine to be necessary or appropriate (i) to ensure that the Buildings and Units and parking areas are used for the purposes set forth" in the master deed, and "(ii) to govern the use of the Common Elements and the recreational facilities included therein." Paragraph 11(E) of the master deed grants the same authority. Similarly, the trustees are empowered to amend rules and regulations, under § 5.14 of the declaration of trust. The declaration of trust imposes two requirements: the rules and regulations must be "by an instrument in writing," pursuant to § 5.12(i), and they must be published to the unit owners before taking effect, pursuant to § 5.14. Other powers granted to the trustees under § 4.1.4 of the declaration of trust include to acquire and manage property; to enter into agreements, including licenses, for the use of trust property; and to do "everything necessary, suitable, convenient, or proper for the accomplishment of any of the purposes of the Trust."
Under the same section, the unit owners may overrule rules and regulations adopted by the trustees by a two-thirds vote . Nothing in the record indicates that any such vote has ever occurred with respect to any of the rules in issue here.
2. Dockage.
The trustees adopted rules regarding use of the docks in 1993, and then amended those rules in 1996. The 1996 rules provided that "[d]ockage is supplied free of charge for Owners," but only if the unit owner is occupying the unit during the unit owner's time interval, and the boat is owned, rented, or leased by the unit owner. The rules prohibit unit owners from assigning the right to free dockage to anyone. The rules further provide that unit owners must reserve space in advance, and that dockage is based on availability. Notice of the new rules was provided to unit owners in the Inn's Summer 1998 newsletter.
On May 24, 2000, plaintiff Quentin Walsh made a request, by fax, for dockage for the period July 2 through July 16, 2000. An employee of the Inn responded that "unfortunately, we do not have slip space for those dates. We are able to accommodate your boat for the period July 7 through July 12, 2000, and have made reservations for those dates." Mr. Walsh complained in a letter dated June 14, 2000, and at a meeting of the trustees on that date. Minutes of the trustees meeting reflect that he was told that "space was on a 'first come' basis and he was very late in trying to get space for the July 4 holiday and the Edgartown regatta weekend. The space is usually taken by early in the year. They suggested that he make his plans earlier to ensure that he get the space."
Mr. Walsh then sent a letter to the Inn manager, defendant Joseph Badot, dated October 28, 2000, requesting a boat reservation for the following summer "for each week I own." He stated that "I certainly won't be using it for each week but make the blanket reservation to cover myself for when I will need it and avoid the unpleasantness that occurred last summer." Badot responded, by letter dated November 3, 2000, that "[w]e have made a reservation for the first two weeks of July as per your wife's request at the end of last season. We are awaiting the forms from you to firm up the reservation. As with all owners, it is necessary for you to return the forms indicating that you will be using the room for the dates you wish to have boat dockage." No evidence indicates whether the plaintiffs ever submitted any reservation forms.
The trustees further amended the dockage rules on December 2, 2000. The new rules provided that "[t]he owner and only the owner of a Harborside Condominium unit and his/her immediate family is entitled to the privilege of dockage free of charge," that "[t]he owner's right to use does not carry with the unit and is not transferable or assignable," and that "[t]he owner of the unit must be in residence during the time of dockage." The new rules further provided that "[t]imely reservations . . . must be made to secure a spot and CONFIRMATION 14 days before scheduled arrival is REQUIRED," "[n]o blanket reservations will be accepted. All reservations must be made on a week by week basis," and "[i]f a boat other than the owner's boat occupies the dock during the owner's week the regular docking fee will be charged." The Inn published the amendments to unit owners by posting them on its website.
The defendants describe this amendment as a clarification rather than a change.
In August of 2002, according to Mr. Walsh's affidavit, friends of the plaintiffs' daughter rented two of the plaintiffs' units and used the Inn's dock. The Inn manager sent a letter to Mr. Walsh reminding him that "the only boat that can be docked without a charge is the boat of the owner and then only if they are in residence during the week." The Inn issued a bill to the renters which, according to Mr. Walsh's affidavit, the renters paid. On another occasion, according to Mr. Walsh's affidavit, a fellow unit owner, Ted Turner, used a unit belonging to the Walshes, with their permission, and was charged a fee for dockage of his boat.
3. Room Occupancy and Cots.
The Inn's original rules restricted occupancy of residential units to three persons and further limited their use to the "normal and customary usage of the standard sleeping facilities." After Joseph Badot became manager of the Inn in 1997, he became concerned about the use of cots in the units, and suggested that the trustees amend the rules. They did so on September 10, 1997, adopting a new rule that limited occupancy to "that number specifically provided for by normal and customary usage of the standard sleeping facilities contained within the Unit," and further provided that "[n]o cots will be allowed in rooms with two double beds." The amendment was published to unit owners in the fall 1997 and spring 1998 issues of the Inn's newsletter, but the published versions omitted the quoted sentence. In April, 2006, the trustees again amended the rule, this time loosening the restriction on occupancy, and providing that "the Manager will furnish cots or other temporary bedding to Units, subject to a standard user fee." The amendment was posted on the Inn's website.
In July 2002, one Jessica Marks inquired of plaintiff Quentin Walsh by e-mail regarding rental of the plaintiffs' unit. Mr. Walsh responded to her by e-mail, providing information about dates of availability, and stating: "The room bedding is 2 double beds but a cot could be squeezed in." According to Quentin Walsh's deposition testimony, Marks later told him that she had called the Inn and asked if she could put a cot in the room, and that an unidentified Inn employee said she could not. Marks did not proceed with rental. The record is silent as to whether the plaintiffs rented the unit to others for the period for which Ms. Marks had expressed interest.
It is apparent that Mr. Walsh lacks personal knowledge of Ms. Marks's telephone conversation with the Inn. No admissible evidence on the subject has been offered.
4. Smoking.
In June, 2002, the trustees enacted a rule restricting smoking. That rule is no longer in effect. The plaintiffs do not smoke, nor do they offer evidence that the rule, while in effect, was applied to anyone who used their unit or who would have done so absent the rule.
5. Emotional Distress.
The plaintiffs initiated this action on February 20, 2003. The Inn's spring, 2003, newsletter informed unit owners of the suit, as well as of another suit filed by unit owner Ted Turner, and presented the trustees' position. On June 23, 2003, plaintiff Sarah Walsh attended a regularly scheduled unit owners' meeting run by Manager Badot and Trustee Pistorino. According the Sarah Walsh's deposition testimony, Badot and/or Pistorino raised the subject of the suit and, in response to questions from unit owners, identified her as a plaintiff, stated that the suit concerned dockage, and opined that "there would be loss of dock rental if, in fact, the lawsuit was won." According to Sarah Walsh's affidavit, Badot and Pistorino "encouraged the owners present to question me directly."
According to her deposition testimony, Sarah Walsh suffered extreme emotional distress as a result of being identified to the other unit owners as a plaintiff in the suit, particularly because she believed that litigation had been not been discussed in unit owners' meetings previously, and had been discussed at trustees meetings only in executive session. According to her deposition testimony, her distress intensified when, after the meeting, Joseph Badot approached her in the laundry room and said that he was sorry that the meeting had upset her and that he had not realized that she was unaware that the suit had been discussed at other unit owners' meetings.
Sarah Walsh's affidavit says that Badot "apologized profusely for the distress and obvious embarrassment that he and Pistorino had so purposely made happen at the owners meeting." To the extent that the word "purposely" is intended as an assertion of Badot's and Pistorino's state of mind, the Court disregards it as beyond the personal knowledge of the affiant.
Sarah Walsh's affidavit elaborates somewhat on her deposition testimony, but presents a generally consistent account of the event. On one point — whether she was or was not shocked that the topic of the litigation was raised at all — the affidavit seeks to contradict the deposition testimony. The Court disregards this effort, but as will be seen, the point is less than material to the issues presented by this motion. The Court also disregards those portions of the affidavit that address settlement negotiations, as well as portions that consist of argument rather than statements of fact.
The plaintiffs filed a "Supplemented Amended Complaint" on July 22, 2003. The supplemented amended complaint alleges that the trustees promulgated the various rules described supra without providing prior notice to unit owners, and further, that the plaintiffs were denied use of docking space during one week of their ownership in July of 2000, that their request for reservation of dockage for all their ownership weeks for the summer of 2001 was denied, and that their guest was denied free dockage on August 20, 2002. The complaint goes on to allege that, on or about July 14, 2002, the manager of the Inn denied use of a cot for renters of one of the plaintiffs' units, and that that conduct "caused the renters to cancel their contract with the plaintiffs." Based on these allegations, the complaint seeks a declaration that the regulations violate G. L. c. 183B, and damages for such violations (counts I and III). The complaint also asserts a claim of intentional interference with contractual relations, as well as violation of G. L. c. 93A, in connection with the alleged denial of a cot to a renter (counts II and IV). Finally, the supplemented amended complaint adds claims of intentional and negligent infliction of emotion distress on Sarah Walsh, based on the events at the June 23, 2003, unit owners meeting (counts V and VI). The defendants move for summary judgment on all counts; the plaintiffs oppose the defendants' motion and cross-move for summary judgment in their favor on all counts.
The complaint does not itself identify the basis for the c. 93A claim. Quentin Walsh testified at his deposition that the events involving Ms. Marks are the sole basis for this claim, and has so acknowledged in his response to the defendants' statement pursuant to Superior Court Rule 9A(b)(5).
DISCUSSION
This court grants summary judgment where there are no genuine issues of material fact and the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Mass. R. Civ. P. 56(c). The moving party bears the burden of demonstrating that there is no genuine dispute of material fact on every relevant issue. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). A party moving for summary judgment who does not bear the burden of proof at trial may demonstrate the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party's case, or by showing that the nonmoving party has no reasonable expectation of proving an essential element of its case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond with evidence of specific facts establishing the existence of a genuine dispute. Pederson v. Time, Inc., 404 Mass. at 17. The opposing party may not rest on the allegations of the pleadings, nor rely on "bare assertions and conclusions." Key Capital Corp. v. M S Liquidating Corp., 27 Mass. App. Ct. 721, 728 (1989). Mere contradictions of factual allegations, without evidentiary support, are insufficient to raise questions of material fact sufficient to defeat a summary judgment motion. Madsen v. Erwin, 395 Mass. 715, 721 (1985), quoting Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3rd Cir. 1972) (noting that conclusory statements, denials, and allegations are insufficient to raise material issues of fact). The opposing party's obligation, rather, is to demonstrate the existence of admissible evidence sufficient to meet the burden of proof on the issues raised by the motion.
1. The Validity of the Rules.
The crux of the parties' dispute addresses the validity of the various rules promulgated by the trustees, particularly those regarding dockage, use of cots, and smoking. As to the 1993 dockage rules and the rules regarding cots and smoking, the dispute regarding validity of the rules appears to be moot, as the rules are no longer in effect, and nothing in the evidentiary record indicates that the plaintiffs suffered any harm from any application of any of those rules. See Boston Herald, Inc. v. Superior Court Department of the Trial Court, 421 Mass. 502, 504 (1995) (declaratory judgment claim is moot where controversy no longer exists).
The plaintiffs' claim for damages with respect to the alleged denial of a cot to Ms. Marks arises in connection with the claims for intentional interference with contractual relations and violation of G. L. c. 93A. The Court will address it in that context.
A live controversy remains with respect to the dockage rules promulgated in 1996 and 2000. The plaintiffs' challenge to these rules appears to rest on three theories: the rules impair their rights as unit owners to unrestricted use of the common elements of the condominium for themselves and their guests and invitees; the rules were not properly promulgated because unit owners were not notified in advance of their adoption; and the rules have not become effective because they have not been recorded in the registry of deeds. Upon review of pertinent statutory provisions and the governing documents of the condominium, the Court concludes that none of these theories has merit.
As to the first theory, the Court has carefully examined the master deed and declaration of trust, and finds nothing that gives unit owners a right to unrestricted use of the common elements. To the contrary, the condominium documents explicitly authorize the trustees to make rules for the use of the common elements. The master deed establishes that authority in ¶¶ 7 and 11 E. Paragraph 7 provides that "[t]he Common Elements shall be subject to the provisions hereof and of the Trust, and to rules and regulations promulgated pursuant to the Trust with respect to the use thereof." Paragraph 11 E provides that "[a] majority of the Trustees . . . may adopt such rules and regulations . . . as they may determine to be necessary or appropriate, . . . to govern the use of the Common Elements and recreational facilities included therein." These provisions are consistent with the governing statute, G. L. c. 183B, § 20(a) (1) and (6).
The declaration of Trust provides at Section 5.14: "Rules and regulations concerning the use of the Units and the Common Elements may be promulgated and amended by the Trustees
. . . . Copies of the Rules and Regulations shall be furnished by the Trustees to each Unit Owner . . . prior to the time when the same shall become effective." That provision goes on to state that "[t]he Unit Owners hereby covenant and agree to be bound by all of such Rules and Regulations and said parties shall obey same and be responsible for their being obeyed by the said Unit Owners, their family, guests, invitees, lessees and servants."
The plaintiffs point to ¶ 11C(f) of the Master Deed, which states that "the Common Elements shall be used only for the furnishing of the services and facilities for which they are reasonably suited and which are incident to the use and occupancy of units." They apparently — the extent of their position is unclear — construe this language to prohibit licensing of dock space to members of the public who are not occupying units. The Declaration of Trust, however, expressly authorizes the trustees to license property of the trust; § 4.1.4(e) grants to the trustees power to "[e]nter into any arrangement for the use or occupation of the Trust property, or any part or parts thereof, including . . . leases, subleases, easements licenses or concessions, upon such terms and conditions . . . as they shall deem desirable."
At argument, and at places in their papers, the plaintiffs have denied any intention to prevent all licensing of dock space to the public, although that would appear to be the logical extension of their interpretation of this language.
The condominium documents must be read together, and construed as a harmonious whole. Read in conjunction with § 4.1.4(e) of the declaration of trust, and with the other provisions discussed supra, the language the plaintiffs cite cannot be construed to prohibit licensing of dock space. The cited language indicates only that common elements are to be used for purposes consistent with the overall operation of the Inn as a residential timeshare condominium. The determination of what uses are consistent with such purposes is entrusted to the trustees. Here, the trustees have determined that licensing of dock space not reserved in advance by unit owners in accord with reasonable rules, so as to generate maximum revenue for the overall benefit of the unit owners, serves those purposes. The Court cannot say that that determination is unreasonable. See Noble v. Murphy, 34 Mass. App. Ct. 452, 457 (1995).
The plaintiffs also cite the following language in section 5.14 of the declaration of trust:
Any person who is a Unit Owner, together with members of his family, social guests, lessees, invitees and licensees, may use the said Common Elements. For any Interval Owner, together with members of his family, social guests, lessees, invitees and licensees, the right to use the Common Elements shall only be for the term of his Interval.
Based on this language, they contend that they are entitled to allow their guests and renters to use dock space free of charge. Here again, they read the documents selectively. Nothing in the cited language provides for use without restriction, and the other language quote supra unequivocally authorizes the trustees to impose restrictions.
The disagreement about management of dock space involves a necessary trade-off between the financial interests of the unit owners as a group in maximizing revenue, and the interests of those unit owners who have boats, or whose guests have boats, in having dock space available on demand. The trustees have struck a balance between these interests, reserving dock space for use of unit owners when actually using their units who reserve it in the prescribed manner, while imposing fees on all others. The plaintiffs disagree with that choice. Their remedy, under the condominium documents, is to advocate among their fellow unit owners to override the trustees' decision, or to seek to elect a slate of trustees who will adopt a different policy. No remedy lies in this Court.
The plaintiffs' two procedural theories also lack support in the law or in the condominium documents. Sections 7.4 and 9.1 of the declaration of trust require advance notice and recording of amendments to the declaration of trust itself, not of adoption or amendment of rules. The plaintiffs have identified nothing in any statute or in the condominium documents that imposes those requirements with respect to rules. The defendants are entitled to a declaration that the challenged rules are valid. Application of valid rules to the plaintiffs and their guests violated no rights of the plaintiffs, and gives rise to no claim. The damages claims based on the dockage rules must be dismissed.
General Laws c. 183B, § 33, which the plaintiffs cite, requires recording of "an amendment to a project instrument." The rules challenged here do not amend any project instrument.
2. Intentional Interference and G. L. c. 93A.
The plaintiffs' claims of intentional interference with contractual relations and violation of G. L. c. 93A are based on the incident with respect to Ms. Marks. To prove intentional interference with contractual relations, the plaintiffs would have to show (1) the existence of a contract with a third party for contemplated economic benefit; (2) that defendants knew of the existence of the contract and knowingly induced the third party to break the contract; (3) that defendants acted for an improper motive or by an improper means; and (4) that the plaintiffs suffered damages. See Wright v. Shriners Hosp. For Crippled Children, 412 Mass. 469, 476 (1992). The record provides evidence of none of these elements.
The only admissible evidence offered, as described supra, is that Ms. Marks inquired about renting the plaintiffs' unit, but did not do so. Even if Mr. Walsh were permitted to testify to Ms. Marks's report to him of her conversation with an unidentified employee of the Inn, such evidence would fall far short of establishing the necessary elements. Nothing in the reported conversation indicates any knowledge by the Inn of any contract between the plaintiffs and Ms. Marks (indeed, there is no evidence that any contract existed), any intention to induce a breach, or any improper motive or means, nor is there any evidence of damages. The claim must therefore be dismissed.
To prevail on the c. 93A claim, the plaintiffs would have to show that the defendants committed some unfair or deceptive act or practice in the conduct of trade or commerce, and thereby caused them harm. Here again, the evidence supports none of the elements of the claim. Most fundamentally, nothing indicates that the defendants have acted in trade or commerce with respect to the plaintiffs. See Kact, Inc. v. Rubin, 62 Mass. App. Ct. 689, 698-99 (2004) (defendant must have acted in trade or commerce with respect to plaintiff). The claim must be dismissed.
3. The Emotional Distress Claim.
What remains are Sarah Walsh's claims of emotional distress based on events at the owners meeting on June 23, 2003. To prove intentional infliction of emotional distress, Ms. Walsh would have to show (1) that the defendants intended to inflict emotional distress, or knew or should have known that emotional distress was the likely result of their conduct; (2) that their conduct was extreme and outrageous; (3) that their actions caused her distress; and (4) that her distress was so severe that no reasonable person could be expected to endure it. See Tetrault v. Mahoney, Hawkes Goldings, 425 Mass. 465, 466 (1997). The plaintiff's evidence, considered in the light most favorable to her, is sufficient to establish the third element, and, considered from a purely subjective standpoint, may also suffice to establish the fourth element. If falls well short, however, on the first and second elements.
The defendants' conduct was to share with the unit owners information that was available to the public generally, that affected the unit owners directly, and that they were entitled to know. No reasonable juror could find that conduct to be extreme and outrageous. Nor is there any evidence to support a finding that the defendants had any intention to inflict emotional distress on the plaintiff, or any reason to think that their conduct would do so. Except in the unusual situation of impoundment, the fact and nature of civil litigation, and the identity of parties to it, are public information. Sarah Walsh chose to bring suit against the trustees and manager of an organization of which she was a member. In doing so, she put herself in a position that her fellow members would likely view as adverse to their interests. A reasonable person in the position of the defendants would have expected that she would have understood the public nature of the litigation, and the likely adverse reaction of her fellow unit owners, both when she filed the suit and when she attended the unit owners meeting.
The plaintiff emphasizes her understanding that the trustees had previously reserved discussion of pending litigation for executive sessions. It is hardly surprising that the governing body of an organization would discuss litigation strategy in private, so as to protect such discussions from disclosure to opposing parties. That practice hardly establishes a promise or guarantee that unit owners would not be advised of the plaintiffs' suit and given an opportunity to ask questions about it. Indeed, the unit owners had a right to expect such an opportunity, and the defendants could fairly have been faulted for refusing to provide it. The claim of intentional infliction of emotional distress fails for lack of evidentiary support, and must be dismissed.
The claim of negligent infliction of emotional distress fails for similar reasons. To prove this claim, Sarah Walsh would have to establish (1) that the defendants had a duty toward her with respect to the subject matter in issue; (2) that they breached that duty; (3) that such breach caused her emotional distress manifested by objectively observable symptomatology; and (4) that a reasonable person would have suffered emotional distress under the circumstances. See Conley v. Romeri, 60 Mass. App. Ct. 799, 801 (2004). The plaintiff identifies no basis on which the defendants would have a duty to protect her from harm of the sort she alleges here, and none appears. See generally Office One, Inc. v. Lopez, 437 Mass. 113, 125 (2002) (condominium trustees have no fiduciary duty to unit owners). Nor, for essentially the reasons already discussed, would the evidence support a finding that a reasonable person would have suffered emotional distress under the circumstances. The claim must be dismissed.
CONCLUSION AND ORDER
For the reasons stated, the Defendants' Motion for Summary Judgment is ALLOWED , and the Plaintiffs' Cross-Motion for Summary Judgment is DENIED . Judgment shall enter dismissing counts I, II, IV, V, and VI of the Supplemented Amended Complaint, and so much of count III as challenges the 1993 rules regarding use of dock space and the rules regarding room occupancy and smoking. Judgment shall enter on Count III as follows: It is hereby adjudged and declared that the rules of the Harborside Inn Condominium regarding use of dock space, as adopted and/or amended by the trustees of the Condominium in 1996 and 2000, were validly promulgated and within the lawful authority of the trustees, and are valid and in effect.