FRANCO v. BOARD OF TRUSTEES OF GABLES CONDOMINIUM TRUST (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Board of Trustees of the Gables Condominium Trust (trustees), appeals from the decision and order of the Appellate Division reversing the judgment of the District Court, and entering judgment for the plaintiff, Lisa M. Franco. See G. L. c. 231, § 109. This case concerns the propriety of the trustees' assessment of a fine against Franco stemming from alleged misconduct by her spouse toward other residents of the condominium development. We affirm the Appellate Division's decision and order insofar as it vacated the judgment entered by the District Court, but in all other respects the decision and order is vacated.

Franco's verified complaint filed in the District Court asserted two counts. Her first count sought reimbursement of $3,057 that she paid under protest to the trustees.² Her second count sought a variety of declarations, including that the fine, attorney's fees, and costs assessed by the trustees were “unreasonable, arbitrary and unjustified.”

Schedule A to the declaration of trust forming the condominium trust sets forth bylaws and “rules and regulations for the Gables Condominium.” Its rule 6 states, in pertinent part, as follows:

“No [u]nit [o]wner shall engage or permit any noxious or offensive activities, or make or permit any noises by himself, his family, servants, employees, agents, visitors, lessees, licensees, or household pets, nor do himself or permit anything to be done by such persons or pets, either willfully or negligently, which: (a) May be or become an annoyance or nuisance to the other [u]nit [o]wners or occupants; (b) Will interfere with the rights, comforts or conveniences of other [u]nit [o]wners, (c) May or does cause damage to any other unit or to the common areas and facilities ․ The [u]nit [o]wner making or permitting such nuisance, interference, damage ․ shall be responsible for the elimination of such nuisance or interference and for the costs of the repair of such damage ․ The [t]rustees of the [c]ondominium shall assess to such [u]nit [o]wner such costs.”

In the District Court, the trustees moved for summary judgment and Franco contested the motion. The motion judge treated the issue before him as one of law and held that (1) rule 6 was validly enacted, was Constitutional, and was equitably reasonable; (2) Franco's spouse's conduct violated rule 6; (3) the trustees had authority to impose a fine; and (4) the amount of the fine was reasonable.³ Judgment entered for the trustees.

The Appellate Division reversed and ordered judgment enter for Franco pursuant to Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). In so doing, the Appellate Division focused on the word “permit” in rule 6, and wrote, “[t]here is nothing in the record that would permit even an inference that Franco, the unit owner, permitted her husband to engage in the conduct alleged to have occurred.” Accordingly, the Appellate Division held that “[t]he fine was improperly levied” and ordered entry of judgment for Franco. Pursuant to the decision and order of the Appellate Division, the District Court entered a new judgment in the amount of $3,920.70 in favor of Franco.

We agree with the Appellate Division that summary judgment was improvidently granted to the trustees, but disagree as to the reason why. Implicit in the Appellate Division's decision is a legal conclusion that the word “permit” as used in rule 6 should be given one of several of its common meanings -- specifically, “to consent to expressly or formally: grant leave for or the privilege of.” Webster's Third New International Dictionary 1683 (2002). In other words, the Appellate Division construed the word “permit” as requiring a showing that Franco affirmatively granted her spouse permission to behave in the manner he did. The trustees, in contrast, argue that a competing, but also common, meaning of the word should be applied. As we understand the trustees' argument, Franco “permitted” her spouse's behavior if she “allow[ed]” or “tolerate[d]” it or provided him with “leave” or an “opportunity” to conduct himself as he did.⁴

The trustees' interpretation and Franco's interpretation of “permit” are both plausible based solely on the four corners of the relevant document. Thus, in our view, the meaning of “permit” as used in rule 6 is ambiguous. See Brigade Leveraged Capital Structures Fund Ltd. v. PIMCO Income Strategy Fund, 466 Mass. 368, 374 (2013), quoting Southern Union Co. v. Department of Pub. Utils., 458 Mass. 812, 820 (2011) (contract language ambiguous where “it is susceptible of more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one”). Where a contract term is ambiguous, a question of fact is presented. See Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 779 (2002). Accordingly, this case is ill-suited to summary judgment.

The decision and order of the Appellate Division is affirmed insofar as it vacated the District Court's judgment. In all other respects the decision and order is vacated, and the case is remanded to the District Court for further proceedings consistent with this memorandum and order.⁵

So ordered.

FOOTNOTES

2.   Franco's payment under protest consisted of a $2,500 fine, a $200 late fee, and attorney's fees in the amount of $357.

3.   Specifically, the motion judge held that the condominium documents allowed the trustees to charge a fine “to maintain the common area of the condominium[,] which would include a fine to deter further violation.”

4.   In the trustees' words, “permit” in the instant context means “to allow to occur” and “does not require explicit unit approval.”

5.   The parties' requests for appellate attorneys' fees are denied.