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Case Information
Filed
2021-12-14
Status
Closed
Type
Miscellaneous|Ota Other
Docket
26 entries
Parties
Plaintiff
Anne Sliney, In Their Capacity As Unit Owner Of The Atlantic Hill Ii Condominium|Elizabeth Hafferty, In Their Capacity As Unit Owner Of The Atlantic Hill Ii Condominium|Janet Pizzi, In Their Capacity As Unit Owner Of The Atlantic Hill Ii Condominium|Jonathan Foley, In Their Capacity As Unit Owner Of The Atlantic Hill Ii Condominium|Judy Hemingway, In Their Capacity As Unit Owner Of The Atlantic Hill Ii Condominium|Sliney,, Anne|Hafferty,, Elizabeth|Pizzi,, Janet|Foley,, Jonathan|Hemingway,, Judy
Defendant
Anderson, Janice|Lewis, David|Chiesa, Joyce Della|Small, Joseph|Silva, John A.
Lawyers
Docket Entries
- Complaint filed.
- Case assigned to the Average Track per Land Court Standing Order 1:04.
- Land Court miscellaneous filing fee Receipt: 427183 Date: 12/14/2021
- Land Court surcharge Receipt: 427183 Date: 12/14/2021
- Land Court summons Receipt: 427183 Date: 12/14/2021
- Motion for Special Process Server, filed and APPROVED. (Patterson, Rec.)
- Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction, filed.
- Memorandum of Law in Support of Plaintiffs' Motion for Injunctive Relief, filed.
- Motion for Short Order of Notice, filed and ALLOWED.
- Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
- Scheduled Judge: Smith, Hon. Kevin T. Event: Temporary Restraining Order Date: 12/21/2021 Time: 10:30 AM
- Summons and Hearing Notice issued on Application for Preliminary Injunction. Judge: Smith, Hon. Kevin T. Event: Hearing on Preliminary Injunction Date: 12/21/2021 Time: 10:30 AM
- Appearance of Henry A Goodman, Esq., Ellen A Shapiro, Esq., Anthony M Gallino, Esq. for Janice Anderson Trustee of the Atlantic Hill II Condominium Trust, David Lewis Trustee of the Atlantic Hill II Condominium Trust, Joyce Della Chiesa Trustee of the Atlantic Hill II Condominium Trust, Joseph Small Trustee of the Atlantic Hill II Condominium Trust, John A. Silva Trustee of the Atlantic Hill II Condominium Trust, filed
- Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction, filed.
- Memorandum of Lawin Support of Defendants' Opposition to Plaintiffs' Motion for a Preliminary Injunction, filed.
- Affidavit of David Lewis in Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction, filed.
- Event Resulted: Hearing on Preliminary Injunction scheduled on: 12/21/2021 10:30 AM Has been: Held via video Hon. Kevin T. Smith, Presiding
- Event Resulted: Temporary Restraining Order scheduled on: 12/21/2021 10:30 AM Has been: Held via video Hon. Kevin T. Smith, Presiding December 21, 2021. Hearing on plaintiffs' motion for preliminary injunction held by videoconference. Attorney Anthony Annino, III appeared for the plaintiffs. Attorney Henry Goodman appeared for the defendants. The plaintiffs have brought this action as unit owners in the Atlantic Hill II Condominium challenging certain decisions made by the board of trustees of the condominium to undertake repair or replacement work of the common areas of the condominium which, they allege, violate the terms of the condominium's governing documents. Among those allegations is that the current board of trustees, without proper authorization, entered into a $10 million loan transaction with South Shore Bank to fund that repair or replacement work. Attorney Annino informed the court that a special meeting of the unit owners is scheduled to take place on December 28, 2021 to address, at least, the disagreement within the condominium as to which trustees are currently lawful members of the board. Attorney Annino argued that the plaintiffs filed this action in an effort to require transparency in the decision-making of the board of trustees and urged the court to allow the motion for preliminary injunction for that reason. Attorney Goodman argued in opposition that the plaintiffs' motion should be denied for several reasons. His initial arguments were jurisdictional and procedural. Attorney Goodman asserted that this court lacks subject matter jurisdiction to hear this case because the plaintiffs' claims do not concern a right, title or interest in land as required by G.L. c.185, §1(k). Rather, the plaintiffs' complaint alleges, in several counts, that the named trustees have breached their fiduciary duty to the unit owners and, therefore, the claims fall outside the limited jurisdiction of the land court. Attorney Goodman also argued that the plaintiffs failed to satisfy the stringent requirements of Rule 23.1 in order to maintain a derivative action against the sitting board of the trustees. Therefore, the plaintiffs may not maintain this action as a derivative claim. As to the merits of the plaintiffs' motion, Attorney Goodman argued that the plaintiffs did not establish that they are likely to prevail on the merits of their claims and, even if they did, they have an adequate remedy at law. The court denied the plaintiffs' motion without prejudice for several reasons. First, based on the fact that the unit owners have scheduled a special meeting for December 28, 2021, the disagreements that form the basis for the complaint may be resolved at that time. It is the expectation that the meeting will address the pending question of whether the current board members were lawfully elected and should continue to govern the condominium. Second, based on the allegations of the complaint, the court is not satisfied at this early stage that it has subject matter jurisdiction to continue hearing this case. Third, the plaintiffs have not established that they are likely to prevail on the merits of their claims. The condominium is under an existing order from the Town of Hull to undertake certain repairs at the property immediately. Attorney Annino acknowledged that some of the repairs are acceptable to the plaintiffs while others, particularly the window replacement work, constitute improvements not properly authorized by the unit owners. Finally, even if the plaintiffs are able to prevail on their claims, which sound in tort (breach of a fiduciary duty) and breach of contract, they have a legal remedy. The court indicated that it would not issue a written decision denying the plaintiffs' motion. The court reviewed with counsel the benefits of exploring settlement in light of the fact that this dispute involves the governance of a condominium that is under a pending order from the Town to undertake certain mandatory repairs. Once the defendants file their responsive pleading to the complaint, the court will schedule the next event. (Smith, J.)
- Defendants' Motion to Dismiss the Plaintiffs' Complaint, filed.
- Defendants' Memorandum of Law in Support of their Motion to Dismiss the Plaintiffs' Complaint, filed.
- Defendants' Statement of Material Facts in Support of their Motion to Dismiss the Plaintiffs' Complaint, filed.
- Defendants' Appendix of Documents in Support of their Motion to Dismiss, filed. (appendix is too large to upload)
- Plaintiffs' Opposition to Defendants' Motion to Dismiss, filed.
- Scheduled Judge: Smith, Hon. Kevin T. Event: Hearing Date: 02/22/2022 Time: 11:00 AM
- Event Resulted: Hearing scheduled on: 02/22/2022 11:00 AM Has been: Held via video Hon. Kevin T. Smith, Presiding February 22, 2022. Motion hearing held by videoconference. Attorney Anthony Annino, III appeared for the plaintiffs. Attorneys Anthony M. Gallino and Henry A. Goodman appeared for the defendants. Before the court was the defendants' motion to dismiss the plaintiffs' complaint. Counsel informed the court that a new board of trustees for the condominium trust was elected at a special meeting of the condominium unit owners held on December 28, 2021. As a result, the counts of the plaintiffs' complaint that challenge certain acts and decisions of the previous board of trustees may be moot. The court explored with counsel whether the case should be dismissed by agreement of the parties. To date, counsel have not been able to agree whether to dismiss the action with or without prejudice to the rights of the plaintiffs as alleged in the complaint. In addition, counsel for the defendants informed the court that they will no longer represent the defendants after today's hearing. Nevertheless, the court heard argument on the motion to dismiss and took the motion under advisement. (Smith, J.).
- Stipulation of Dismissal Pursuant to Mass R. Civ. P. 41(a)(1)(ii), filed.
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