Wodinsky v. Kettenbach
12 N.E.3d 960
Mass. App. Ct.2015Background
- Jerome and Bernadette Wodinsky owned unit 3 at 303 Commonwealth Ave.; the Kettenbachs (through CMTF and related trusts) acquired the other units and sought to convert the building into a single-family residence.
- Disputes arose over major building projects: replacement of the roof and skylights and wholesale replacement of the building's single elevator; the Kettenbachs hired contractors and demanded the Wodinskys pay their 20% share without clear board authorization.
- The Kettenbachs (and trustee Crossen) pursued collection efforts, posted demand letters publicly, and initiated suit in the name of the condominium trust to recover assessments and place a lien; the Wodinskys tendered payment "under protest" which counsel refused to accept as full satisfaction.
- The elevator was shut down and remained inoperable for approximately ten months, forcing the elderly Wodinskys to climb four flights of stairs; evidence showed the Kettenbachs had planned replacement and may have sought an inspection to justify it.
- The Wodinskys filed suit asserting MCRA violations, abuse of process, civil conspiracy, G. L. c. 93A claims, and other torts; a preliminary injunction barred further collection and imposed a daily fine if the elevator remained inoperable past a deadline.
- After a 19-day jury trial, the jury awarded the Wodinskys damages on most claims; the trial judge entered judgment n.o.v. for defendants on the c. 93A claim (no trade or commerce) and reduced part of plaintiffs’ attorney fee request; the appeals court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants’ conduct fell within "trade or commerce" for G. L. c. 93A | Wodinsky: CMTF is a business and actions to manage/repair property were within its business purpose, so c. 93A applies | Defs: Actions were private/neighborhood disputes motivated by personal goal (to own whole building), not commercial conduct | Court: Transactions were primarily private; no commercial motive shown — judgment n.o.v. for defendants on c. 93A granted |
| Whether MCRA (Mass. Civil Rights Act) liability established by coercion/intimidation | Wodinsky: Defendants coerced them (elevator shutdown, public shaming, demand letters, litigation strategy) to force them out | Defs: No credible evidence of coercive, intimidating or threatening conduct | Court: Evidence was sufficient under an objective standard — MCRA verdict upheld |
| Whether abuse of process occurred by suing to collect assessments | Wodinsky: Board suit was used for ulterior purpose (to force sale), charges were unauthorized — abuse of process | Defs: Suit sought legitimate collection of assessments | Court: Jury could find filing was ulterior and frivolous; abuse of process verdict upheld |
| Whether civil conspiracy proven | Wodinsky: Crossen and Kettenbachs acted in concert to pressure and coerce plaintiffs out of unit | Defs: Insufficient evidence of combined coercive power beyond individual acts | Court: Record supported concerted scheme and combined coercive effect — conspiracy verdict upheld |
| Whether Wodinskys could contest condominium assessment without prior payment under Blood | Wodinsky: Tendered full amount under protest; preliminary injunction obtained barred collection | Defs: Owner must pay under protest before contesting | Court: Counsel refused plaintiffs’ tender and defendants’ filing commenced suit; the injunction provided the necessary prior judicial determination — Wodinskys permitted to contest |
Key Cases Cited
- Heller v. Silverbranch Constr. Corp., 376 Mass. 621 (discusses c. 93A's consumer-business policy)
- Office One, Inc. v. Lopez, 437 Mass. 113 (private disputes among condominium owners not within c. 93A)
- McGonagle v. Home Depot U.S.A., Inc., 75 Mass. App. Ct. 593 (commercial motive required for c. 93A)
- Buster v. George W. Moore, Inc., 438 Mass. 635 (MCRA elements: interference by threats, intimidation, or coercion)
- Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760 (elements and definition of abuse of process)
- DesLauries v. Shea, 300 Mass. 30 (civil conspiracy requires combined coercive power beyond individual defendants)