MANUEL J. CALVAO & another
KATHLEEN E. RASPALLO.
Heard: May 31, 2017.
action commenced in the Superior Court Department on
December 14, 2011.
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.
S. Farber for the defendant.
J. Wall for the plaintiffs.
Wolohojian, & Ditkoff, JJ.
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 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.
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
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. 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.
Standard of review.
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