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Wodinsky v. Kettenbach

Appeals Court of Massachusetts, Suffolk

January 6, 2015

Jerome Wodinsky & another [1]
Michael L. Kettenbach [2] & others. [3]

Argued: September 29, 2014.

Amended judgments entered December 4, 2012, affirmed.

Single justice orders entered March 25, 2014, and April 8, 2014, affirmed.

Page 826

Civil actions commenced in the Superior Court Department on September 28 and November 13, 2009.

After consolidation, the case was tried before Frank M. Gaziano, J., and motions for judgment notwithstanding the verdict and for attorney's fees were heard by him.

Donald N. Sweeney ( Steven P. Perlmutter with him) for the plaintiffs.

Alan K. Posner ( Mikalen E. Howe with him) for the defendants.

Present: Cohen, Meade, & Milkey, JJ.


[22 N.E.3d 964] Meade, J.

Following the consolidation of two cases for a jury trial, Jerome Wodinsky and Bernadette L. Wodinsky appeal from the allowance by the trial judge of a motion for judgment notwithstanding the verdict (judgment n.o.v.), which vacated in part a $1.85 million award[4] against the defendants, Michael L. Kettenbach, individually and as trustee of 303 Commonwealth Condominium Trust; Frances Demoulas Kettenbach, individually and as manager of CMTF, LP (CMTF); and Gary Crossen, individually and as trustee of 303 Commonwealth Avenue Realty Trust.[5] The Wodinskys also appeal from the judge's refusal to send to the jury their G. L. c. 93A claims against each of the three

Page 827

individual defendants, and the judge's decision to reduce the attorney's fees award to one of their attorneys. Crossen and the Kettenbachs cross appeal, claiming that the judge erred in denying their motion for judgment n.o.v. on the Wodinskys' abuse of process, civil conspiracy, and Massachusetts Civil Rights Act (MCRA) claims, in making certain evidentiary rulings, and in awarding attorney's fees to the Wodinskys.[6] Finally, the Kettenbachs, as trustees of the 303 Commonwealth Condominium Trust, appeal the verdict in the second action in the Wodinskys' favor, claiming that they should not have been permitted to challenge the assessment of condominium expenses against them.[7] We affirm.


Mindful of the jury's verdicts, we summarize relevant facts in the [22 N.E.3d 965] light most favorable to the Wodinskys, reserving certain details for our later discussion. See Foley v. Polaroid Corp., 400 Mass. 82, 85, 508 N.E.2d 72 (1987). At the time of trial, the Wodinskys and the Kettenbachs were owners of condominium units at 303 Commonwealth Avenue, Boston (303 Commonwealth or the building).[8] In 1977, the Wodinskys purchased unit 3, which is located on the building's fourth floor. The Kettenbachs purchased unit 1 in June, 1996, and subsequently transferred title to CMTF, a limited partnership wholly controlled by the Kettenbachs.[9]

The Kettenbachs evidently desired to acquire all five units in the building for the purpose of merging them and transforming the building into a single-family residence for themselves. In 2007, the Kettenbachs (through CMTF) purchased unit 5. They then acquired unit 2 in 2008, when the estate of the deceased owner sold it to Crossen as trustee of 303 Commonwealth Avenue

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Realty Trust.[10] Following their acquisition of unit 2, the Kettenbachs physically merged units 1 and 2 into a single unit. Later, and as discussed below, the Kettenbachs acquired unit 4. Thus, by the time of trial, the Kettenbachs owned four of the five units at 303 Commonwealth, with the Wodinskys owning the sole remaining unit, unit 3.

A. Improvements to the building.

In the years preceding this litigation, the Kettenbachs proposed extensive improvements (the Kettenbachs identified them as " repairs" ) to the building that the Wodinskys claimed were unwarranted.[11] Under the condominium documents, the Wodinskys were responsible for twenty percent of all validly assessed expenses.[12] All repairs or improvements were required to be approved by the board of trustees of the 303 Commonwealth Condominium Trust (board), the governing body of the building. Both Jerome and Michael L. were at all relevant times duly elected members of the board, each entitled to one vote.

Citing leaks in the roof and other issues, the Kettenbachs insisted that a full replacement [22 N.E.3d 966] of the roof and the skylights was needed. However, Jerome maintained that repairs short of replacement would suffice and would be far less expensive to the unit owners. Nevertheless, in November, 2008, the Kettenbachs engaged a contractor to replace the roof and the skylights. Michael L. signed the contract in his individual capacity, not as an

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authorized representative of the board.[13]

On March 26, 2009, some four months after signing the roof and skylights contract, the Kettenbachs arranged a board meeting, at which they essentially sought retroactive approval of the contract. Michael L. did not attend.[14] Instead, Crossen appeared as the " representative" of not only Michael L., but of his two adult sons, Michael D. Kettenbach and Edward Kettenbach, who both recently had been elected trustees, but who had not properly accepted or recorded their appointments as required by the trust documents.[15] Both Jerome and Elizabeth Kipp, the owner of unit 4 and a trustee of the board, voted against the improvements. Crossen claimed to hold proxies for Michael D. and Edward, but the jury found that no proxies had been issued.[16] Thus, of the three votes that Crossen claims to have submitted at that meeting (Michael L. and each of his two sons), none was effective.[17] Therefore, the Kettenbachs lost the vote.

One month after the March, 2009, meeting, Crossen (on behalf of the Kettenbachs) demanded payment of $31,487.57 from the Wodinskys,[18] which represented the Wodinskys' twenty percent share of the roof and skylights contract.[19] Crossen also demanded that the Wodinskys furnish the name and the address of their mortgagee. After receiving a ...

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