TRUSTEES OF WASHINGTON WEST CONDOMINIUM v. ASHKOURI (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Hisham Ashkouri, appeals from a corrected judgment after rescript reaffirming an earlier Superior Court judgment (first judgment) in favor of the plaintiffs, the trustees of the Washington West Condominium, but also allowing recovery against Ashkouri personally for the payment of condominium fees, late charges, interest, and costs of collection. Concluding that the corrected judgment after rescript improperly expanded the first judgment from an order establishing liens on four condominium units to an order holding Ashkouri personally liable for the money owed, we vacate in part the corrected judgment after rescript.

1. Expansion of judgment after appeal. General Laws c. 183A, § 6 (b), provides that “[t]he unit owner shall be personally liable for all sums assessed for his share of the common expenses including late charges, fines, penalties, and interest assessed by the organization of unit owners and all costs of collection including attorneys' fees, costs, and charges.” Although, as the trial judge found, “Ashkouri controlled and was responsible for paying the condominium fees” for the units, Ashkouri was not the owner of these units. Contrast Drummer Boy Homes Ass'n v. Britton, 474 Mass. 17, 19-20 (2016) (judgment against unit owners where owners withheld payment of monthly common expenses). Ashkouri was the beneficiary of four realty trusts, but the condominium units were owned by the trusts.

Regardless of whether the trial judge could have entered judgment against Ashkouri personally, she in fact issued the first judgment establishing liens against four condominium units owned by four different realty trusts, in an aggregate amount of $ 220,385.31. The factual finding that Ashkouri was the beneficiary of the trusts and was responsible for the payment of fees on the four condominium units does not control over the plain terms of the first judgment. Moreover, counts one through four of the plaintiffs' complaint, on which the trial judge granted relief, alleged damages only against the realty trust owners of the condominium units, not against Ashkouri as an individual.

The plaintiffs did not file a cross appeal from the first judgment. See Federal Home Loan Mtge. Corp. v. Bartleman, 94 Mass. App. Ct. 800, 805 (2019), quoting Brear v. Fagan, 447 Mass. 68, 76 n.7 (2006) (cross appeal warranted where parties “seeking a judgment more favorable to them than the judgment entered below”). Accordingly, the first judgment, which was affirmed by a different panel of this court, stood. Trustees of the Washington W. Condominium Trust v. Ashkouri, 89 Mass. App. Ct. 1103 (2016). Because the motion judge who issued the corrected judgment after rescript erred in materially expanding the first judgment by converting it from a judgment establishing liens against the four condominium units to a judgment against Ashkouri personally, we vacate in part.²

2. Waiver. We reject the plaintiffs' contention that, because Ashkouri failed to raise the issue of his individual liability during his first appeal, he has waived his opposition to individual liability. Because the trial judge did not find Ashkouri personally liable, there was no occasion for Ashkouri to make this substantive argument below. Contrast Gutierrez v. Massachusetts Bay Transp. Auth., 442 Mass. 1041, 1042-1043 (2004), quoting Amherst Nursing Home, Inc. v. Commonwealth, 398 Mass. 850, 852 (1986) (arguments raised for first time on appeal waived, especially if issue has “been on hand from the inception of the case”).

3. Notice of appeal. We also reject the plaintiffs' argument that Ashkouri's notice of appeal was untimely. A single justice of this court deemed Ashkouri's motion to enter a notice of appeal, filed six months after the corrected judgment after rescript entered, to be a timely notice of appeal, nunc pro tunc, under Mass. R. A. P. 14 (b), as amended, 378 Mass. 939 (1979). The plaintiffs did not notice an appeal from this order, and thus its propriety is not before us. See Commonwealth v. Trussell, 68 Mass. App. Ct. 452, 453 (2007) (appellee may appeal grant of relief under rule 14 [b] ).³

4. Conclusion. So much of the corrected judgment after rescript as allowed recovery against Ashkouri personally for the payment of condominium fees, late charges, interest, and costs of collection, is vacated. The remainder of the corrected judgment after rescript is affirmed.

So ordered.

affirmed

FOOTNOTES

2.   We offer no opinion on whether the plaintiffs may attempt to pursue a remedy against Ashkouri when executing the judgment against the trusts, on a basis that Ashkouri's actions opened him up to personal liability, despite the fact that Ashkouri is not the legal owner of the condominium units. Cf. Brothers Bldg. Co. of Nantucket, Inc. v. Yankow, 56 Mass. App. Ct. 688, 693-694 (2002) (describing circumstances where party may attempt to enforce judgment on alter ego theory).

3.   We deny the plaintiffs' request for double appellate attorney's fees and costs.