NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-605
TRUSTEES OF THE 10 PORTER STREET CONDOMINIUM TRUST
vs.
ELIZABETH R. CERDA (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
These consolidated cross appeals arise from a longstanding
dispute between the plaintiffs, who are the Trustees of the 10
Porter Street Condominium Trust, and the defendants, Elizabeth
R. Cerda and Carmen R. Berges, who are two condominium unit
owners. Berges appeals from a Superior Court judgment assessing
penalties and fines against her for having affixed a camera to
the railing of the porch of her unit, as well as an award to the
plaintiffs of a portion of their claimed attorney's fees. The
plaintiffs appeal from the judge's ruling that three other
cameras affixed to the defendants' units did not violate the
condominium master deed or declaration of trust (collectively,
condominium documents). We affirm.
1 Trustees of the 10 Porter Street Condominium Trust vs. Carmen
R. Berges.
Background. Much of the lengthy procedural history of this
case is set forth in Trustees of the 10 Porter St. Condominium
Trust v. Cerda, 99 Mass. App. Ct. 1106 (2021) (Cerda I), an
unpublished rule 23.0 memorandum and order, and need not be
repeated here. In Cerda I, a panel of this court affirmed so
much of the 2019 judgments entered in these cases (the 2019
judgments) as assessed unpaid condominium fees and special
assessments against each defendant.2 However, the Cerda I panel
vacated so much of the 2019 judgments as ordered the defendants
to pay penalties, fines, and late fees in the amounts of $60,125
(Cerda) and $60,600 (Berges). Cerda I, slip op. at 18-19. The
panel remanded the case to the Superior Court "for a judicial
determination of the basis for, and legality of, the penalties
and late fees," and whether a statement of the defendants'
counsel to another Superior Court judge at a May 1, 2018 hearing
constituted a representation that penalties and late fees would
not accumulate. Cerda I, slip op. at 15.
On remand, the defendants moved pursuant to Mass. R. Civ.
P. 42 (a), as amended, 423 Mass. 1402 (1996), to consolidate
these cases with another Superior Court case, Cerda v. Dunn,
2 After the Cerda I rescript entered, a Superior Court judge
entered confirming judgments imposing unpaid condominium fees
and special assessments in the amounts of $34,304.77 (against
Cerda) and $31,391.08 (against Berges). There is no dispute
that the defendants satisfied so much of those judgments.
2
Essex Sup. Ct. No. 1877CV00561C, in which these defendants
sought a declaratory judgment against the plaintiffs. The
motion was denied. Less than two months later, the defendants
renewed their motion to consolidate Cerda v. Dunn with the
present matters, which a different judge, the same judge to
later rule on the issues remanded by the Cerda I panel, again
denied.
The judge held a three-day evidentiary hearing, at which
both plaintiffs and both defendants testified; numerous exhibits
were admitted in evidence. After the plaintiffs had rested
their case, the judge noted that they might not have met their
burden to show that the cameras violated the condominium
documents. Ultimately, the judge concluded that the condominium
documents did not prohibit cameras, the cameras affixed to the
window frames were within the defendants' respective units, and
thus only one camera -- the one affixed to Berges's porch
railing (porch camera) -- violated the condominium documents.
Accordingly, judgment entered in Cerda's favor. As to Berges's
porch camera, the judge concluded that the fifty dollar per day
fine assessed by the plaintiffs was not reasonable, as required
by G. L. c. 183A, § 10 (b) (5), and that a reasonable fine would
be ten dollars per day. The judge assessed penalties and fines
against Berges in the amount of $7,980. The judge also
3
concluded that the amount of the late fees that the plaintiffs
had assessed against Berges was unreasonable as a matter of law.
Pursuant to G. L. c. 183A, § 6 (b), and the condominium
documents, the judge imposed an $18,152.36 attorney's fees award
against Berges. Arguing that the plaintiffs' claims were
frivolous and not advanced in good faith, the defendants moved
pursuant to G. L. c. 231, § 6F, for attorneys' fees and costs,
which the judge denied. The parties cross-appealed.3
Discussion. Motions to consolidate. The defendants argue
that the judge erred in denying their motions pursuant to Mass.
R. Civ. P. 42 (a) to consolidate this case with their
declaratory judgment action against the plaintiffs. The
defendants contend that the lack of consolidation of the actions
prejudiced them because it meant that the judge considered the
legality and amount of the fines "in a vacuum." The plaintiffs
counter that the judge properly denied the motion to consolidate
because the scope of the declaratory judgment action is far
broader than the issues presented in Cerda I.
3 Because judgment entered in Cerda's favor, it would appear that
her appeal is moot. See Lynn v Murrell, 489 Mass. 579, 582-583
(2022). Asked at oral argument why her appeal is not moot,
Cerda replied that she pursued the appeal in order to respond to
the plaintiffs' arguments that her cameras violated the
condominium documents and because she disagreed with the judge's
findings of fact. Because her claims are duplicative of those
raised by Berges, we proceed to adjudicate Cerda's appeal.
4
We review the denial of a motion to consolidate for abuse
of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014). Consolidation under Mass. R. Civ. P. 42 (a) is
"discretionary," and "potential delay and confusion alone may
warrant denying consolidation." Springfield v. Civil Serv.
Comm'n, 403 Mass. 612, 615 n.3 (1988). The initial motion judge
denied the defendants' motions to consolidate because the
declaratory action judgment was "substantially broader in scope
and is [in] a much earlier procedural stage in a separate
session in Lawrence Superior Court." The judge did not abuse
his discretion.
Cameras affixed to window frames. The plaintiffs argue
that cameras affixed to the window frames of both defendants'
units violated section 19(c) of the master deed and rules 4, 6,
and 14 of the declaration of trust. We review de novo the
judge's interpretation of the condominium documents. See
Gutierrez v. Board of Managers of Flagship Wharf Condominium,
100 Mass. App. Ct. 678, 679 (2022).
At the hearing, the judge noted that the plaintiffs'
notices to the defendants stated only that the cameras violated
the condominium documents, which the judge interpreted to
"define a unit basically from the outside pane in." The
plaintiffs' counsel agreed with that interpretation of the
condominium documents as to the parameters of the units.
5
The plaintiffs argued, as they argue again on appeal, that
even if the condominium documents did not explicitly prohibit
the cameras affixed to the defendants' window frames, the
plaintiffs had broad authority to fine the defendants because
the cameras constituted a nuisance and interfered with other
occupants' peaceful possession in violation of section 19(f) of
the master deed. The judge declined to find that the cameras
were a nuisance, noting that "self-installed security cameras on
private property have become fairly commonplace in this day and
age." The judge specifically did not credit the plaintiffs'
testimony that the cameras caused "people" to "feel
uncomfortable." Based on his observations of the parties in
court, the judge noted "open hostility" by the plaintiff
trustees toward the defendants, which he concluded "led the
[t]rustees to feel 'harassed' and to assess the camera fines
against the defendants without first ensuring they had
sufficient information and specific grounds based on provisions
of the condominium documents." We defer to the judge's findings
that were based on the demeanor and credibility of witnesses.
See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 553
(1997).
The judge concluded that it would be "unreasonable and
unfair" for the plaintiffs to recover fines from the defendants
on grounds for which the plaintiffs had not given notice. We
6
agree. As we noted in Cerda I, "the statute authorizing the
assessment of fines requires that they be 'reasonable.'" Cerda
I, slip op. at 15, quoting G. L. c. 183A, § 10 (b) (5). It was
within the judge's discretion to conclude that fines are not
"reasonable" if imposed without notice of the basis.4
Berges's porch camera. Berges argues that the judge erred
in concluding that her porch camera violated rule 2 of the
declaration of trust, which provides, "nor shall anything be
stored in the Common Elements without the prior consent of the
Board of Trustees." Berges contends that rule 2 does not apply
to her porch camera because she had exclusive use of the porch,
and therefore it was a "limited common area" as defined in G. L.
c. 183A, § 1.
The master deed defines the "Common Elements" to include
"the entire Condominium, including all parts of the Building
other than the Units," including "[t]he balconies of the
Building . . . , provided, however, that each Unit Owner shall
have a license for the exclusive use of the balcony . . .
extending from the exterior wall of h[er] Unit." Interpreting
that provision of the master deed, the judge concluded that
Berges's porch camera was within the boundaries of the common
4 We decline to reach the plaintiffs' argument that the judge
should have deferred to their "business judgment" on what fines
were reasonable.
7
elements and not within her unit. The judge noted that the
condominium statute would define a unit to encompass an
appurtenant balcony "if . . . stipulated in the master deed as
being owned by the unit owner," G. L. c. 183A, § 1 "Unit," but
here the master deed did not grant Berges ownership of the
balcony, only a "license" to use it exclusively. Reviewing de
novo the judge's interpretation of the condominium documents,
see Gutierrez, 100 Mass. App. Ct. at 679, we agree that Berges's
porch camera violated rule 2.
Reasonableness of amount of fines for Berges's porch
camera. The judge concluded that the fifty dollar per day fine
that the plaintiffs imposed on Berges for her porch camera was
not "reasonable" as required by G. L. c. 183A, § 10 (b) (5).
The plaintiffs argue that the judge abused his discretion in
making that determination, because the word "reasonable" in
§ 10 (b) (5) refers only to whether the imposition of a fine was
reasonable, not to whether the amount of the fine was
reasonable. The judge concluded that the reasonableness
requirement in § 10 (b) (5) applied to both the imposition of
the fine and its amount, and "[t]o hold otherwise would mean
that the Legislature intended to grant condominium trustees
unfettered authority to impose any amount of fine." We agree
with the judge that fifty dollars per day was an unreasonable
amount, and that ten dollars per day is reasonable. See Board
8
of Health of Northbridge v. Couture, 95 Mass. App. Ct. 296, 301
& n.6 (2019).
Conversely, Berges argues that the judge committed clear
error in assessing any fines against her, because the plaintiffs
acted in bad faith and gave testimony that the judge found was
not credible. The defendants contend that the judge should have
found that the plaintiffs acted in bad faith because they
implicitly promised that they would stop levying fines when, at
a May 1, 2018 hearing, their counsel represented to another
Superior Court judge that "nothing is going to change the status
quo." In considering whether to impose fines on Berges, this
judge concluded, "[b]ased on . . . [a] close reading of the
transcript," that what the plaintiffs' counsel meant was that
they "would not foreclose on any statutory lien," and did not
represent that the plaintiffs would stop accruing or waive fines
and late fees against the defendants while awaiting a ruling on
summary judgment. Having reviewed the hearing transcript, we
concur. The judge's memorandum of decision makes clear that in
setting the amount of the fine he considered, among other
factors, the plaintiffs' conduct and what amount would serve as
a "significant deterrent" to unit owners to refrain from
violating the condominium rules. We discern no abuse of his
9
discretion.5 See Board of Health of Northbridge, 95 Mass. App.
Ct. at 301 & n.6.
Attorney's fees. Berges argues that the judge erred in
assessing $18,152.36 in attorney's fees against her, because
that amount was far greater than the amount of damages yielded
from the expenditure of attorney's fees -- i.e., the fines
totaling $7,980.
Pursuant to G. L. c. 183A, § 6 (b), and article III,
section 7 of the declaration of trust, the plaintiffs were
entitled to an award of reasonable attorney's fees. See Eastern
Holding Corp. v. Congress Fin. Corp., 74 Mass. App. Ct. 737, 743
(2009). "The party seeking attorney's fees bears the burden of
showing that the amount sought is reasonable." WHTR Real Estate
Ltd. Partnership v. Venture Distrib., Inc., 63 Mass. App. Ct.
229, 235 (2005). We review a determination of a reasonable
attorney's fee for abuse of discretion. See Brady v. Citizens
Union Sav. Bank, 91 Mass. App. Ct. 160, 161 (2017).
5 The judge concluded that the late fees that the plaintiffs
sought against Berges in the amount of twenty-five dollars per
month per outstanding invoice, totalling $20,875, would be
unreasonable as a matter of law and would "result in a windfall"
for the plaintiffs. The judge declined to impose late fees.
The plaintiffs do not raise the issue on appeal but, in any
event, we discern no abuse of discretion. See Craft v. Kane, 65
Mass. App. Ct. 322, 328 (2005) (award of interest should not
"result in a windfall").
10
We note that the judge substantially reduced the amount of
attorney's fees sought, for reasons including that only one of
the defendants' four cameras violated the condominium documents;
the plaintiffs' documentation of attorney's fees was
insufficiently detailed; and the amounts sought were excessive,
redundant, and pertained to unrelated matters. We discern no
abuse of the judge's discretion.
Evidentiary issues. The defendants argue that the judge
erred in two respects in his conduct of the hearing. First,
they contend that the judge erred in denying their motion to
strike certain invoices admitted in evidence as exhibits, which
they contend were not properly authenticated. Rather than
striking the exhibits, the judge ruled that the defendants could
offer other copies of the invoices, and permitted them wide
latitude in cross-examining the plaintiffs about the exhibits.
We discern no abuse of discretion.
Second, the defendants argue that the judge improperly
interrupted their presentation of evidence and imposed arbitrary
time limits, which hampered them from proving that the
plaintiffs acted in bad faith. During Cerda's cross-examination
of one of the plaintiffs about whether the condominium documents
prohibited cameras, the judge excused the witness and then
elicited from the plaintiffs' counsel a concession that in fact
the condominium documents did not do so. The judge's action was
11
appropriate. See Commonwealth v. Carter, 475 Mass. 512, 526
(2016) (judge must be "the directing and controlling mind at the
trial, and not a mere functionary to preserve order and lend
ceremonial dignity to the proceedings" [quotation omitted]).
See also Chandler v. FMC Corp., 35 Mass. App. Ct. 332, 338
(1993) ("a judge has wide discretion to impose reasonable limits
on the length of the direct and cross-examination of
witnesses"). Moreover, it did not prejudice the defendants, as
based on that questioning the judge concluded that the
condominium documents did not prohibit cameras.
Appellate attorneys' fees. Both the defendants and the
plaintiffs seek an award of their respective appellate
attorneys' fees. Those requests are denied.6
Judgments affirmed.
By the Court (Vuono, Henry &
Grant, JJ.7),
Clerk
Entered: May 16, 2023.
6 To the extent that we do not address the parties' remaining
contentions, they "have not been overlooked. We find nothing in
them that requires discussion." Commonwealth v. Domanski, 332
Mass. 66, 78 (1954).
7 The panelists are listed in order of seniority.
12