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Drummer Boy Homes Association, Inc. v. Britton

Supreme Judicial Court of Massachusetts, Middlesex

March 29, 2016

Drummer Boy Homes Association, Inc.
v.
Carolyn P. Britton & another. [1]

         Argued January 7, 2016.

          Civil actions commenced in the Concord Division of the District Court Department on August 8, 2007; February 6, 2008; and October 6, 2008.

         After consolidation, the case was heard by Peter J. Kilmartin, J., on a motion for summary judgment, and a motion to alter and amend the judgment was also heard by him.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

         Thomas O. Moriarty ( Jennifer L. Barnett with him) for the plaintiff.

         Michael A.F. Johnson, of the District of Columbia ( Rhiannon A. Campbell with him), for Federal Housing Finance Agency & others, amici curiae.

Page 18

          Randy A. Britton, pro se.

         The following submitted briefs for amici curiae.

         Alan E. Lipkind & Elizabeth Brady Murillo for Avidia Bank & others.

         Henry A. Goodman, Ellen A. Shapiro, Charles A. Perkins, Jr., Scott J. Eriksen, & David R. Chenelle for Community Associations Institute.

         Clive D. Martin & Diane R. Rubin for Real Estate Bar Association for Massachusetts, Inc.

         Stephen C. Reilly & Jennifer E. Greaney for Bank of America, N.A.

         Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

          OPINION

          [47 N.E.3d 402] Spina, J.

          At issue in this case is whether G. L. c. 183A, § 6, permits an organization of unit owners to establish multiple contemporaneous priority liens on a condominium unit by filing successive legal actions to collect unpaid monthly common expense assessments (common expenses).[2] We conclude that the statute allows for such liens. Accordingly, we reverse the judgment of the Appellate Division of the District Court,[3] which reached a contrary conclusion.[4]

          1. Background.

          Over the last ten years, the parties in this case have been involved in protracted and contentious litigation concerning parking rights at a condominium complex. Our recitation of the factual background and procedural history encompasses only those matters that relate to the specific issues now before this court. Drummer Boy Condominium II, which consists of twelve individual units, is one of nine condominiums comprising Drummer Boy Green in Lexington. In the aggregate, the nine condominiums have approximately 150 units. The defendant, Carolyn P. Britton, purchased a unit in Drummer Boy Condominium II in

Page 19

May, 2001. In April, 2008, she transferred title to the unit by quitclaim deed to herself and her husband, defendant Randy A. Britton, as tenants by the entirety.[5]

         Around 2004, the Brittons began to withhold payment of their monthly common expenses because of a dispute concerning parking rules and related fines. On August 8, 2007, the Drummer Boy Homes Association, Inc. (association),[6] commenced an action in the District Court against the Brittons.[7] It sought to recover [47 N.E.3d 403] unpaid common expenses and to enforce a priority lien pursuant to G. L. c. 183A, § 6 ( c ), and G. L. c. 254, § § 5, 5A, that would be superior to the first mortgage to the extent of the common expenses due during the six months immediately preceding the commencement of the action.[8] The Brittons continued to withhold payment of their monthly common expenses. On February 6, 2008, the association commenced a second action to recover the unpaid common expenses that had accrued since the filing of its first action, and to enforce a second six-month priority lien. When the Brittons still did not pay their monthly common expenses, the association commenced a third action on October 6, 2008, to recover the unpaid common expenses that had accrued since the filing of its second action, and to enforce a third six-month priority lien. The association subsequently filed a motion to consolidate the three actions, which was allowed.

         On March 9, 2009, the association filed a motion for summary

Page 20

judgment. Following a hearing, a judge allowed the motion and entered judgment in favor of the association in the amount of $22,742.08.[9] The judge first determined that the association was the proper entity to seek recovery of unpaid common expenses pursuant to G. L. c. 183A, § 6. He then concluded that there were no disputed issues of material fact regarding the association's ability to recover unpaid common expenses and related fines, as well as reasonable attorney's fees and costs associated with the collection of such expenses. The judge pointed out that, notwithstanding the Brittons' arguments about the purported illegality of the parking policies at Drummer Boy Green, they never initiated an action to resolve their parking dispute, and they could not remedy the matter simply by ignoring the fines and refusing to pay their common expenses.[10] The judge also concluded, however, that the filing of successive actions was not consistent with G. L. c. 183A, § 6 ( c ), and that the association's lien priority over the first mortgagee for common [47 N.E.3d 404] expenses, plus reasonable attorney's fees and costs, was limited to the one six-month period preceding the commencement of the first of the consolidated actions. That being the case, the judge established a priority lien under § 6 ( c ) in the amount of $15,054.86.[11] The judge denied the association's subsequent motion to alter or amend the judgment to reflect three successive six-month periods of lien priority.

         Both parties appealed to the Appellate Division of the District Court. By decision dated July 20, 2011, a panel of the Appellate

Page 21

Division affirmed the judgment in all respects. After reviewing the parties' extensive briefing, the panel determined that only two issues had been properly raised: standing and statutory interpretation. First, the panel considered the Brittons' argument that the plaintiff was not a legal entity entitled to sue and, therefore, the judgment was void. The association conceded that it should have brought suit in the name of " Drummer Boy Homes Association, Inc.," rather than " Board of Directors of the Drummer Boy Homes Association, Inc." The panel corrected the misnomer, concluding that the litigation ...


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