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Calvao v. Raspallo

Appeals Court of Massachusetts, Barnstable

September 29, 2017

MANUEL J. CALVAO & another[1]
v.
KATHLEEN E. RASPALLO.

          Heard: May 31, 2017.

         Civil action commenced in the Superior Court Department on December 14, 2011.

         The case was heard by Christopher J. Muse, J., on a motion for summary judgment, and a motion for equitable relief, assessment of damages, and entry of final judgment was heard by him.

          Peter S. Farber for the defendant.

          Brian J. Wall for the plaintiffs.

          Green, Wolohojian, & Ditkoff, JJ.

          DITKOFF, J.

         The defendant, Kathleen Raspallo, appeals from a Superior Court judgment requiring her, inter alia, to remove an addition she constructed on condominium common area assigned to the exclusive use of her unit. Construing G. L. c. 183A, § 5, we determine that a unit owner may not annex exclusive use common area[2] to her unit without the unanimous consent of the other unit owners holding a legal interest in that common area. Discerning no error in the judge's other conclusions, we affirm.

         1. Background.

          We summarize the relevant facts of this case as presented to the judge on motion for summary judgment and the subsequent equitable relief hearing. The Tall Pines Condominium in the town of Dennis consists of two units separated by approximately thirty-two feet. Manuel and Brenda Calvao own unit 1, and Kathleen Raspallo owns unit 2, which she has used as her full-time residence since she purchased it in 2003. The vast majority of the common area is designated for the exclusive use of one or the other unit. The master deed grants unit 1 forty-six percent of the beneficial interest in the condominium and unit 2 fifty-four percent of the beneficial interest.

         In 2011, Raspallo began renovations on her unit, which included an approximately 111 square foot addition built on common area designated for her exclusive use. In order to acquire the necessary permits from the town, Raspallo had the condominium developer, Robert David, who was the sole condominium trustee, unilaterally appoint Raspallo as the sole trustee. Despite the Calvaos' objections, Raspallo obtained the permits and completed renovations in 2012. The Calvaos promptly filed the present action in Superior Court, both on their own behalf and derivatively for the condominium board of trustees. On motion for summary judgment, the judge determined that the master deed prohibited David from appointing Raspallo as trustee in 2011 without the Calvaos' consent.[3] The judge found Raspallo liable for her unilateral actions and ordered the parties to have meaningful discussions regarding the appointment of a new trustee and the issue of waste and undue hardship before the judge determined a remedy. While the parties were discussing a resolution the court appointed a mutually agreed upon trustee. Ultimately, the parties were unable to reach a resolution and at the subsequent remedy hearing the judge ordered the removal of the addition. The judge also concluded that the master deed limits the use of unit 2 to seasonal occupation, enjoined Raspallo from year-round residence, and awarded the Calvaos $36, 291.53 in attorney's fees.

          2. Standard of review.

          We review the grant of summary judgment on liability de novo to decide "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Karatihy v. Commonwealth Flats Dev. Corp., 84 Mass.App.Ct. 253, 255 (2013), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). A decision involving the "imposition of equitable remedies" rests with the trial judge and is subject to review only for ...


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