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Massachusetts Unified County

Massachusetts

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Case Information

Filed 2024-05-27
Status Open
Type E Filed Mrc Determine Validity Of Encumbrances, G.l. Chapter 240, 11 14
Docket 125 entries

Parties

Plaintiff Feldman, Debra
Defendant Sanctuary Condominium Association

Lawyers

Docket Entries

  1. Trial Ends.: Trial scheduled on: 11/12/2025 09:30 AM Has been: Held - Trial Ends Comments: with Closing Arguments Held in Boston Hon. Michael D. Vhay, Presiding
  2. Land Court surcharge Dismissed Type: Indigency Dismissed Date: 05/29/2024 Dismissed Amount: 15.00 Comments: Fee Waived - Indigency [Wednesday, May 29, 2024 9:11 AM] Dismissed By: SHEGARTY
  3. Case assigned to the Average Track per Land Court Standing Order 1:04.
  4. Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
  5. Verified Complaint eFiled.
  6. Affidavit of Indigency, filed.
  7. Determination Regarding Indigency, issued Judge: Patterson, Deborah J.
  8. Financial Notes: Fee Waiver Auth.
  9. Summons returned to Court with service on Sanctuary Condominium Association filed.
  10. Event Scheduled Judge: Vhay, Hon. Michael D. Event: Case Management Conference Date: 07/03/2024 Time: 09:00 AM
  11. Appearance of Gina Marie Desrochers, Esq., Scott John Eriksen, Esq. for Sanctuary Condominium Association, filed
  12. Certificate of Service, filed.
  13. Sanctuary Condominium Association's Answer to Verified Complaint, filed.
  14. Verified Amended Complaint to Determine the Validity of Restriction Mass.G.L.c. 240, 11-14, filed.
  15. Joint Statement of the Parties, filed.
  16. Motion to Strike Defendant's Answer to Verified Complaint, filed.
  17. The Court has reviewed, and DENIES, Ms. Feldman's motion to strike the Association's answer to verified complaint. Service by U.S. mail is sufficient under Rule 5(b) of the Massachusetts Rules of Civil Procedure. The Court ADVISES the parties, however, that if they file materials using the Court's Tyler system, they must take affirmative steps to use the same system to serve the filing on an opposing party. Unlike the federal PACER system, Tyler does not automatically serve filings on opposing parties or give them e-mail notice of filings. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 06/18/2024 08:48:11
  18. Sanctuary Condominium Association's Answer to Verified Amended Complaint, filed.
  19. Event Resulted: Case Management Conference scheduled on: 07/03/2024 09:00 AM Has been: Held via telephone Hon. Michael D. Vhay, Presiding
  20. Alternative Dispute Resolution: Early Intervention Event held. Judge: Vhay, Hon. Michael D.
  21. Telephonic case management conference and initial intervention event held. Ms. Feldman appeared representing herself. Sanctuary Condominium Association appeared through counsel. Ms. Feldman contends that section 9(b) of Sanctuary Condominium Association's Master Deed, for a condominium on Aurora Lane in Salem, Massachusetts, is an unenforceable restriction and that, even if sec. 9(b) is enforceable, the Association has waived it. She also contends that the Association unreasonably has refused approval on work she's proposed for a doorway that the Association contends is common area. The Association argues that Ms. Feldman's claims are (1) derivative; (2) barred by the statute of limitations; (3) incorrect, as (a) the Master Deed isn't governed by c. 184, sec. 26-30; (b) the Association hasn't waived sec. 9(b) of the Master Deed; and (c) the Association properly exercised its powers in denying the requested work. After hearing from the parties, the Court ORDERS them to complete by October 1, 2024 all discovery (both fact and expert). The Court ORDERS the parties to file by August 30, 2024, motions to compel any discovery that's outstanding as of that date. The Court ORDERS Ms. Feldman to file by July 31, 2024, a motion for summary judgment on her claim that sec. 9B, as it appears in the online version of the Master Deed available at the Registry of Deeds, is an unenforceable restriction. The Court ORDERS the Association to file by August 21, 2024 , any opposition to Ms. Feldman's motion and any cross-motions for summary judgment on Ms. Feldman's complaint. The Court ADVISES the parties that their summary judgment filings must comply with Massachusetts Rule of Civil Procedure 56 and Land Court Rule 4; Superior Court Rule 9A does not apply to the Land Court. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 07/03/2024 14:22:33
  22. Plaintiff's Motion for Summary Judgment, filed.
  23. Plaintiff's Affidavit of Motion for Summary Judgment, filed.
  24. The Court has received Ms. Feldman's summary-judgment filings. The Court will treat her affidavit as the statement described in Land Court Rule 4, and the Association is required under that rule to respond to it as such. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 07/29/2024 17:51:30
  25. Statement of Material Facts, filed.
  26. Defendant the Sanctuary Condominium Association's Opposition to Plaintiff's Motion for Summary Judgment and Defendant's Crossmotion for Summary judgment, filed.
  27. Defendant's Memorandum of Law in Opposition to Plaintiff's motion for Summary Judgment and in Support of Defendant's Cross - Motion for Summary Judgment, filed.
  28. The Court has received the Association's opposition and cross-motion for summary judgment. The Court ORDERS Ms. Feldman to file by September 11, 2024, any opposition to the Association's cross-motion. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 08/22/2024 10:49:37 Notice of Docket Entry sent to counsel of record and Pro Se by email from the Sessions Clerk.
  29. Plaintiff's Opposition to Cross-Motion for Summary Judgment by Defendant, filed.
  30. Scheduled Judge: Vhay, Hon. Michael D. Event: Hearing Date: 12/12/2024 Time: 11:00 AM
  31. Scheduled Judge: Vhay, Hon. Michael D. Event: Status Conference Date: 12/12/2024 Time: 11:00 AM
  32. EDocument Sent: Notice of Event was generated and sent to: Defendant: Gina Marie Desrochers, Esq. [email protected] Defendant: Scott John Eriksen, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 11/29/2024 13:09:46 Zoom information sent to Counsel of record and Pro Se by email from the Sessions Clerk.
  33. Event Resulted: Hearing scheduled on: 12/12/2024 11:00 AM Has been: Held via video Hon. Michael D. Vhay, Presiding
  34. Event Resulted: Status Conference scheduled on: 12/12/2024 11:00 AM Has been: Held via video Hon. Michael D. Vhay, Presiding
  35. Hearing on parties' cross-motions for partial summary judgment on Count II of Ms. Feldman's complaint held by videoconference. Ms. Feldman appeared representing herself. Sanctuary Condominium Association appeared through counsel. After hearing from the parties, the Court DENIES Ms. Feldman's motion for summary judgment 2 and GRANTS Sanctuary Condominium Association's motion for summary judgment on Count 2, for the reasons stated on the recording of today's hearing. The Court ORDERS the parties to appear for a pre-trial conference by Zoom on January 13, 2025 at 2:30 PM. The expected trial is for the purpose of resolving all factual and legal disputes concerning Count I of Ms. Feldman's complaint. A separate notice of the conference will issue, but notwithstanding what the notice states, the Association will take the lead in preparing the parties' joint pretrial conference memorandum, and the memorandum may be filed no later than January 9, 2025. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 12/12/2024 15:30:16 Notice of Docket Entry sent to Counsel of record and Pro Se by email from the Sessions Clerk.
  36. Scheduled Judge: Vhay, Hon. Michael D. Event: Pre-Trial Conference Date: 01/13/2025 Time: 02:30 PM
  37. Joint Pre-Trial Memorandum, filed.
  38. Event Resulted: Pre-Trial Conference scheduled on: 01/13/2025 02:30 PM Has been: Held via video Hon. Michael D. Vhay, Presiding
  39. Pretrial videoconference held. Ms. Feldman appeared representing herself. The Association appeared through counsel. After hearing from the parties, the Court ORDERS Ms. Feldman to file by January 31, 2025, any motions to amend her amended complaint. Should Ms. Feldman file such a motion, the Court ORDERS the Association to file by February 14, 2025, any opposition. Unless the Court grants Ms. Feldman leave to amend her complaint, the remaining issues in this case are as follows: (1) Will Ms. Feldman's proposed door work (the "Work") cause the "architectural . . . integrity of the Buildings and the Units [not to] be preserved without modification" within the meaning of section 9(b) of the Master Deed? (2) Will the Work cause the "structural integrity of the Buildings and the Units [not to] be preserved without modification" within the meaning of section 9(b)? (3) Under Massachusetts law, what is the power of the Land Court to correct a factual mistake by the Association's Board of Trustees in denying a Unit Owner's request for authorization under section 9(b) to perform work? (4) Under Massachusetts law, what is the power of the Land Court to remedy the Board's alleged refusal to maintain (a) an oak tree and (b) a deck located in Condominium common areas close to Ms. Feldman's unit, in retaliation for her asserting her rights to perform the Work? (5) Does sec. 16 of the Master Deed prevent Ms. Feldman from contending that the Association has abandoned, abrogated, or waived the Association's powers under sec. 9(b) on account of one or several acts of non-enforcement? The parties agree that there are no disputes of fact concerning the scope of the Work. The Court thus ORDERS Ms. Feldman to file by February 14, 2025, a motion for summary judgment on issues ##1-2. That motion must comply with Land Court Rule 4. The Court ORDERS the Association to file any opposition to Ms. Feldman's motion by March 7, 2025. The opposition must comply with Land Court Rule 4. Additionally, the Court ORDERS Ms. Feldman to file by February 14, 2025, a memorandum setting forth legal authorities and argument concerning her positions on issues ##3-4. The Court ORDERS the Association to do the same by February 14, 2025, with respect to issue #5. The Court ORDERS the parties to file by March 7, 2025, (a) in Ms. Feldman's case, a memorandum or brief responding to the Association's brief on issue #5; and (b) in the Association's case, a memorandum or brief responding to Ms. Feldman's brief on issues ##3-4. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 01/13/2025 16:08:03 Notice of Docket Entry sent to Counsel of record and Pro Se by email from the Sessions Clerk.
  40. Certificate of Service, filed.
  41. Ms. Feldman has filed a "Certificate of Service" of her motion to amend her complaint. The Certificate mentions a "Rule 9A." Rule 9A is a Superior Court rule that requires parties to exchange motions and oppositions before filing them with the court. Rule 9A does not apply to cases in the Land Court. If Ms. Feldman has prepared a motion to amend her complaint, she should file it with this Court without awaiting the Association's opposition. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Sent On: 01/24/2025 10:24:10
  42. Certificate of Service, filed.
  43. Plaintiff's Motion to Amend Complaint, filed.
  44. The Court has received Ms. Feldman's motion to amend her complaint. The Court ORDERS SCA to file by February 20, 2025, any opposition to the motion. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 02/11/2025 10:02:32 Notice of Docket Entry sent to Counsel of record and Pro Se by email from the Sessions Clerk.
  45. Plaintiff's Memorandum of Law as to her Motion to file a Second Amended Complaint, filed.
  46. Opposition to Plaintiff's Motion to Amend Complaint, filed.
  47. Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion to Amend the Complaint, filed.
  48. The Court has reviewed (a) Ms. Feldman's motion to amend her complaint, (b) her memorandum in support of the motion, (c) the Association's opposition to the motion, and (d) her reply in support of the motion. The Court DENIES the motion, for two reasons. First, the motion doesn't explain why Ms. Feldman couldn't have included her new proposed claim (that the Association violated art. VIII, sec. 13) at the time Feldman filed her original complaint or when she previously amended her complaint. The facts surrounding the claimed sec. 13 violation (that the Association's trustees didn't respond to a construction request within 30 days) were known to Feldman by August 2022; she filed this action in May 2024. Second, the proposed new claim (that the Association "breached a fiduciary duty" to Feldman by not responding within 30 days) is outside the subject-matter jurisdiction of the Land Court. A claim for breach of a fiduciary duty is a tort claim; the Land Court lacks subject-matter jurisdiction over such tort claims. See Crapser v. Bondsville Partners, Inc., 14 LCR 432, 437 (2006) (Land Court lacks subject-matter jurisdiction over claims against condominium's trustees for breach of fiduciary duty). While the Land Court could request transfer of this action to the Superior Court (which has tort jurisdiction), and/or request an appointment as a Superior Court judge to hear such claims, Feldman's tardiness in presenting the claim counsels against this Court making such a request at this time, given that the parties (a) have completed discovery, (b) have undergone a round of summary-judgment practice, and (c) are briefing what the Court concluded after hearing on January 13, 2025, are the remaining issues in this case. This order is without prejudice, however, to Ms. Feldman contending that the Board's alleged failure to timely respond to a construction request affects the outcome of the issues the parties are presently briefing. SO ORDERED Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 02/13/2025 15:12:39 Notice of Docket Entry sent to Counsel of record and Pro Se by email from the Sessions Clerk.
  49. Defendant The Sanctuary Condominium Association's Motion for Summary Judgment, filed.
  50. Memorandum of Law in Support of Defendant's Motion for Summary Judgment, filed.
  51. Statement of Material Facts, filed.
  52. Plaintiff's Opposition to Defendant's Motion for Summary Judgment, filed.
  53. Plaintiff's Motion for Summary Judgment, filed.
  54. Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment, filed.
  55. Undisputed Material Facts for which there is No Genuine Issue to be Tried, filed.
  56. Plaintiff's Affidavit on Motion for Summary Judgment, filed.
  57. Plaintiff's Memorandum of Law as to Massachusetts Law Governing Issues #3 and #4, filed.
  58. Certificate of Service, filed.
  59. Memorandum of Law as to the Ramifications of the Board's Failure to Timely Respond to Plaintiff's Construction Request, filed.
  60. Opposition to Plaintiff's Memorandum as to the Ramifications of the Board's Failure to Timely Respond to Plaintiff's Construction Request, filed.
  61. Plaintiff's Response to Defendant's Opposition to Plaintiff's Memorandum of Law as to the Ramifications of the Board's Failure to Timely Respond to Plaintiff's Construction Request, filed.
  62. The Court has received Plaintiff's Response to Defendant's Opposition to Plaintiff's Memorandum of Law. "Plaintiff's Response" is a reply brief; the Court ORDERS the parties in the future to seek leave of the Court before filings any replies or surreply briefs. The Court will henceforth ignore replies or surreplies for which leave to file has not been granted. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 02/24/2025 11:04:23 Notice of Docket Entry sent to Counsel of record and Pro Se by email from the Sessions Clerk.
  63. Opposition, filed.
  64. On January 13, 2025, this Court ordered Ms. Feldman to move for summary judgment on issues ##1-2 , and to brief issues ##3-4, as the Court's January 13 order identifies those issues. The Court reminded Ms. Feldman that her motion for summary judgment needed to comply with Land Court Rule 4. That rule requires a party who files for summary judgment (Rule 56) to provide "a concise statement, in consecutive numbered paragraphs, of the material facts upon which the moving party relies, with page or paragraph references to supporting pleadings, depositions, answers to interrogatories, admissions and affidavits. [T]he material facts in the statement must be those as to which the moving party contends there is no genuine issue to be tried." Rule 4 also requires the moving party to file "an appendix, appropriately indexed," that contains "all cited portions of the documents or other materials referenced" in the party's statement of material facts. Ms. Feldman filed her motion and brief on February 18, 2025. She filed with them a five-page document labelled, "Undisputed Material Facts for Which There is No Genuine Issue to Be Tried." She didn't file with her motion a Rule 4 appendix. Her "Undisputed Material Facts" statement begins with eleven numbered statements, none of which refers to specific factual materials she supplied (let alone materials contained in a Rule 4 appendix). Following the eleven "Undisputed Facts," the document recites "Disputed Material Facts," some of which refer to "exhibits." Many of the so-called "Disputed Material Facts" relate to construction work Ms. Feldman has proposed. The docketed document containing Feldman's various "Undisputed" and "Disputed" facts ends abruptly on page 5. The Court ordered what it ordered on January 13, 2025, based on the parties' agreement that there were no disputes over the work Ms. Feldman has proposed. The Court can't tell from Ms. Feldman's filings, however, what her construction project entails. She also hasn't provided a proper Rule 4 appendix for the other "undisputed" factual materials upon which she relies, such as the Master Deed or the "Rules." The Court thus DENIES Ms. Feldman's motion for summary judgment on issues ##1-2 for failing to obey the Court's January 13, 2025 order and failing to comply with Land Court Rule 4. The Court will reinstate Ms. Feldman's motion for summary judgment if she submits by March 28, 2025, a Statement of Material Facts that complies with Land Court Rule 4, a statement that is indexed to a properly prepared and complete Land Court Rule 4 Appendix. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 03/19/2025 07:38:05 Notice of Docket Entry sent to Counsel of record and Pro Se by email.
  65. On January 13, 2025, this Court ordered defendant SCA to brief issue #5, as the Court's January 13 order identifies that issues. The Court separately reminded the parties that any motions for summary judgment needed to comply with Land Court Rule 4. That rule requires a party who files for summary judgment (Rule 56) to provide "a concise statement, in consecutive numbered paragraphs, of the material facts upon which the moving party relies, with page or paragraph references to supporting pleadings, depositions, answers to interrogatories, admissions and affidavits. [T]he material facts in the statement must be those as to which the moving party contends there is no genuine issue to be tried." Rule 4 also requires the moving party to file "an appendix, appropriately indexed," that contains "all cited portions of the documents or other materials referenced" in the party's statement of material facts. SCA filed its brief on issue #5 via a motion for summary judgment, docketed February 13, 2025. SCA filed with the motion a statement of material facts that referred to two exhibits. SCA didn't attach those exhibits to its material-facts statement or file a Rule 4 appendix. The Court thus DENIES SCA's motion for summary judgment on issue #5 for failing to obey the Court's January 13, 2025 order and failing to comply with Land Court Rule 4. The Court will reinstate SCA's motion for summary judgment if it submits by March 28, 2025, a Rule 4 appendix that furnishes all of the exhibits to which SCA's statement of material facts refers. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 03/19/2025 07:39:26
  66. Statement of Material Facts, filed.
  67. Defendant the Sanctuary Condominium Assocation's Motion for Summary Judgment, filed.
  68. Memorandum of Law in Support of Defenant's Motion for Summary Judgment, filed.
  69. The Court has received SCA's renewed motion for summary judgment. The Court ORDERS Ms. Feldman to file by March 28, 2025, (a) a response to SCA's Statement of Material Facts and (b) any opposition to SCA's motion. Any response to the Statement of Material Facts must comply with Land Court Rule 4. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 03/19/2025 12:28:45
  70. The Court has reviewed the parties' briefs concerning what this Court's January 13, 2025, order describes as issue #4: whether the Land Court has subject-matter jurisdiction to address the SCA trustees' alleged retaliatory refusals to maintain an oak tree and a deck in common areas near Ms. Feldman's unit. The Court concludes that it lacks subject-matter jurisdiction over that dispute: the underlying legal wrong is a breach of fiduciary duty. For the reasons explained in the Court's February 13, 2025, order, such claims are tort claims that are outside of the jurisdiction of the Land Court. Had Ms. Feldman included the oak-tree and deck contentions in her original complaint, the Court likely would have sought a transfer of this entire action to the Essex Superior Court, which has jurisdiction over both the declaratory-judgment claims contained in Counts I-II of Feldman's complaint and general tort claims. Since Feldman presented to the Court the oak-tree and deck contentions for the first time at the pretrial conference in this case, and since discovery in this case closed in October 2024, this Court will not seek such a transfer; instead, the Court DISMISSES Feldman's oak-tree and deck contentions without prejudice to her filing such claims in a proper court. This Court will nevertheless adjudicate (a) Ms. Feldman's contention that sec. 9(b) of the Master Deed does not govern her proposed work (the January order's issues ##1-2) and (b) whether sec. 16 of the Master Deed prevents Ms. Feldman from arguing in connection with issues ##1-2 that the Trustees' failure to enforce sec. 9(b) against other SCA unit owners constituted a waiver of its right to enforce sec. 9(b) with respect to Ms. Feldman's proposed work (the January order's issue #5). SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 03/21/2025 15:33:39 Notice of Docket Entry sent to Counsel of record and Pro Se by email.
  71. Plaintiff's Motion for Summary Judgment in Re Issues #1 and #2, as those Issues are Identified by the Court, filed.
  72. Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment in Re Issues #1 and #2 as those Issues were Identified by the Court, filed.
  73. Statement of Material Facts, filed.
  74. Plaintiff's Affidavit on Motion for Summary Judgment, filed.
  75. Plaintiff's Memorandum of Law as to Massachusetts Law Governing Issues #3 and #4, filed.
  76. Plaintiff's Appendix, filed.
  77. Plaintiff's Response to Defendant's Motion for Summary Judgment, filed.
  78. Plaintiff's Response to Defendant's Statement of Material Facts, filed.
  79. Certificate of Service, filed.
  80. On March 19, 2025, the Court denied Ms. Feldman's motion for summary judgment on what the Court's January 13, 2025, order calls issues ##1-2. The Court denied the motion because it failed to comply with Land Court Rule 4. The Court's March 19, 2025, order stated, however, that the Court would "reinstate Ms. Feldman's motion for summary judgment if she submits by March 28, 2025, a Statement of Material Facts that complies with Land Court Rule 4, a statement that is indexed to a properly prepared and complete Land Court Rule 4 Appendix." On March 27, 2025, Ms. Feldman filed a new motion for summary judgment on issues ##1-2. She filed with that motion a Memorandum of Law, an "Affidavit on Motion for Summary Judgment," and a 177-page appendix. She did not file, however, a separate statement of material facts. She also didn't include such a statement in her motion or memorandum. The motion thus does not comply with Land Court Rule 4, notwithstanding the Court's March 19, 2025, directions. As for the appendix, none of Ms. Feldman's other summary judgment materials refers to it; the appendix has no obvious purpose. By not complying with Land Court Rule 4, Ms. Feldman has prejudiced SCA's ability to respond to the motion and this Court's ability to decide the motion. The Court will not give Ms. Feldman a third try at filing a complying motion. Instead, in reviewing Ms. Feldman's motion for summary judgment, the Court will (1) disregard Ms. Feldman's appendix entirely and (2) treat Ms. Feldman's affidavit as her Land Court Rule 4 Statement of Undisputed Facts. The Court thus ORDERS SCA to file by April 18, 2025, any opposition to Ms. Feldman's motion; in doing so, SCA must respond to Ms. Feldman's affidavit paragraph by paragraph in the manner Land Court Rule 4 requires (and, if SCA wants, identify additional material facts). The Court PROHIBITS Ms. Feldman from filing further materials in connection with any of the pending motions without obtaining the Court's permission first. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 04/03/2025 15:17:27 Notice of Docket Entry sent to Counsel of record and Pro Se by email.
  81. Plaintiff's Motion for Late Acceptance of Plaintiff's Statement of Material Facts in Support of her Motion for Summary Judgmen, filed.
  82. The Court has received Ms. Feldman's motion for late acceptance of her Rule 4 statement. The Court ORDERS SCA to file by April 9, 2025, any objection to the motion. SCA's obligation to oppose Ms. Feldman's motion for summary judgment is temporarily STAYED until the Court rules on Ms. Feldman's current motion. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 04/04/2025 10:09:56 Notice of Docket Entry sent to Counsel of record and Pro Se by email.
  83. Opposition to Plaintiff's Motion for Late Acceptance of Plaintiff's Statement of Material Facts in Support of her Motion for Summary Judgment, filed.
  84. Plaintiff's Amended Motion for Late Acceptance of Exhibits to Plaintiff's Statement of Material Facts in Support of her Motion for Summary, filed.
  85. The Court has received Ms. Feldman's amended motion for late acceptance of Exhibits to her statement of material facts. The Court ORDERS SCA to file by April 9, 2025, any opposition to the amended motion. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 04/04/2025 14:56:03 Notice of Docket Entry sent to Counsel of record and Pro Se by email.
  86. Plaintiff's Motion for Leave to File Reply to Defendant's Opposition to Plaintiff's Motion for Late Acceptance of Plaintiff's Statement of Material Facts in Support of her Motion for Summary Judgment, filed and DENIED (Vhay, J.). Notice of Docket Entry sent to counsel of record by email.
  87. Appendix (for Sanctuary Condominium Association), filed.
  88. Opposition to Plaintiff's Amended Motion for Late Acceptance of Plaintiff's Statement of Material Facts in Support of her Motion for Summary Judgment, filed.
  89. Plaintiff's Opposition to Defendant's ate Submitted Appendix on its Motion for Summary Judgment, filed.
  90. Opposition, filed.
  91. Appendix, filed.
  92. Reply, filed.
  93. Scheduled Judge: Vhay, Hon. Michael D. Event: Hearing Date: 08/28/2025 Time: 10:00 AM
  94. Event Resulted: Hearing scheduled on: 08/28/2025 10:00 AM Has been: Held via video Hon. Michael D. Vhay, Presiding
  95. Motions hearing held by videoconference. Ms. Feldman appeared representing herself. Sanctuary Condominium Association (the "Board") appeared through counsel. The Court heard Ms. Feldman's motion for summary judgment on the issue of whether the Condominium's master deed gives the Board the power to regulate the proposed changes to Feldman's unit. The Court raised the issue of whether it has subject-matter jurisdiction over Ms. Feldman's remaining challenges (the subject of the parties' cross-motions for summary judgment), which concern how the Board exercised its alleged powers over her proposed work. With the assent of the parties, the Court will request the Chief Justice of the Trial Court to: (1) transfer the case to Essex Superior Court and (2) to appoint Justice Vhay to hear the case. The Court otherwise takes the issues fully argued at today's hearing under advisement. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 08/28/2025 16:01:24 Notice of Docket Entry sent to Counsel of record and Pro Se by email.
  96. After hearing arguments from the parties, the Court DENIES Ms. Feldman's motion for summary judgment on the issue of whether the Sanctuary Condominium Association (the "Association") has the power under sec. 9(b) of the Condominium's Master Deed to regulate Feldman's door work. Here are the undisputed facts that pertain to the narrow question of whether Ms. Feldman's work is subject to sec. 9(b). In December 1986, Feldman purchased a unit within the Condominium. On May 22, 2022, she submitted to the Condominium's Board of Trustees (the "Board") a proposal to replace an exterior door to her unit, one leaving the unit's kitchen, with a solid wall. Doing so would necessitate work both inside Feldman's unit and on the outside of the building in which the unit's located. That exterior is a Condominium "common element." On August 22, 2022, the Board rejected the proposal, claiming it had the right to do so under sec. 9(b). Section 9 of the Master Deed, "Use of the Units," begins: "Unless permitted otherwise by instrument in writing duly executed in accordance with the By-Laws of the [Association] . . . ." There follow three subparagraphs. The second is sec. 9(b). It states in relevant part: "The architectural and structural integrity of the Buildings and the Units shall be preserved without modification, and to that end, without limiting the generality of the foregoing . . . no exterior or structural change, addition, projection, decoration, or other feature shall be erected or placed upon or attached to any such Unit or any part thereof; no addition to or change or replacement (except, so far as practicable, with identical kind) of any exterior light, door knocker or other exterior hardware, exterior door, or door frames shall be made . . . ." Ms. Feldman argues this provision can't be construed as allowing the Board to regulate her proposed work. When interpreting a deed, including a condominium's master deed, the court must construe all the deed's words that are plain and free from ambiguity according to their usual and ordinary sense. See Trustees of the Beechwood Vill. Condo. Tr. v. USAlliance Fed. Credit Union, 95 Mass. App. Ct. 278, 290-91 (2019). The court also must construe the deed to effectuate the intent of the parties, unless inconsistent with some law or with the terms of the grant. See Queler v. Skowron, 438 Mass. 304, 311-12 (2002). The courts determine the intent of the parties primarily from the words used in their deed, "interpreted in the light of the material circumstances and pertinent facts known to them at the time [the deed] was executed." Commercial Wharf E. Condo. Ass'n v. Waterfront Parking Corp., 407 Mass. 123, 131 (1990), quoting Bessey v. Ollman, 242 Mass. 89, 91 (1922). The plain language of sec. 9(b) establishes that "no exterior . . . change" may occur to any unit "[u]nless permitted otherwise by [an] instrument in writing signed duly executed in accordance with the By-Laws . . . ." It's undisputed that Ms. Feldman's work would result in and "exterior change" to the Condominium: it would remove the current exterior door and replace it with a wall. Ms. Feldman argues that work becomes subject to sec. 9(b) only if it would impair "[t]he architectural and structural integrity of the Buildings and the Units . . . ." That argument ignores the language of sec. 9(b) as a whole. Yes, the opening of sec. 9(b) states its objective (preserving the architectural and structural integrity of the Buildings and the Units), but the requirements that follow that stated objected unambiguously state what actions require Board approval. The listed items have a plausible connection to sec. 9(b)'s stated objective. Under the common meanings of "architectural," "structural," and "integrity," see The American Heritage Dictionary of the English Language (New Coll. ed. 1976), it's plausible that removing an exterior door (particularly one that has suffered the degree of damage that Ms. Feldman claims) and replacing it with a wall could fail to "preserve" the Building's design or construction. That's why, reasonably construed, sec. 9(b) requires advance written Board approval of "exterior changes" to the Condominium. Ms. Feldman further argues that the term "exterior . . . change" doesn't extend to "removal" of her door. The Dictionary defines "change" variously as "to cause to be different; alter"; "to give a completely different form or appearance to; transform"; "to become different or altered"; and "the replacing of one thing for other; substitution." The Court's satisfied from those definitions, as well as the context of "exterior . . . change," that the latter phrase encompasses Feldman's "removal" of her kitchen entrance and replacing it with something other than something of "identical kind," the only "change" to an "exterior door" that sec. 9(b) exempts. Whether the Board impermissibly declined to give Feldman permission to perform her work, or whether it was too late in denying that permission, are the subject of Feldman's "non-jurisdictional" claims in this case (see the Court's order of August 28, 2025). SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 09/02/2025 09:02:46 Notice of Docket Entry sent to Counsel of record and Pro Se by email.
  97. At the hearing on the parties' cross-motions for summary judgment, the Court questioned its jurisdiction over Ms. Feldman's claims that the SCA board improperly refused her request to alter a doorway to her unit. The Court asked the parties if they had a preference for a Land Court justice or a Superior Court justice to hear those claims. The parties agreed a Land Court justice would be preferable. Given that agreement and following consultation with the Chief Justice of the Land Court, the Court concludes that it has subject-matter jurisdiction over Ms. Feldman's remaining claims in this case. The Court thus will not request a transfer of this case and an interdepartmental assignment of a Land Court justice to sit as a Superior Court justice. The Court thus ORDERS the parties to appear by Zoom videoconference on September 18, 2025, at 2:30 PM, for a continued hearing on the parties' cross-motions for summary judgment. A separate hearing notice will issue. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 09/09/2025 09:29:44 Notice of Docket Entry sent to Counsel of record and Pro Se by email.
  98. Scheduled Judge: Vhay, Hon. Michael D. Event: Hearing Date: 09/18/2025 Time: 02:30 PM
  99. Event Resulted: Hearing scheduled on: 09/18/2025 02:30 PM Has been: Held via video Hon. Michael D. Vhay, Presiding
  100. Continued hearing on parties' cross-motions for summary judgment held via video conference. Ms. Feldman appeared representing herself. The Sanctuary Condominium Association appeared through counsel. After hearing from the parties, the Court HOLDS that Section 16 of the Master Deed does not prevent Feldman from arguing that the Board may have treated other applications for changes to common areas differently from hers. The Court further HOLDS that (a) decisions by the Board under sec. 9(b) of the Master Deed are judicially reviewable, and (b) the standard for review is whether the Board acted arbitrarily, capriciously, or on the basis of improper discrimination in reaching its decision. See Noble v. Murphy, 34 Mass. App. Ct. 452 (1993), and Kellet v. Caron, 33 LCR 129 (2025) (Foster, J.). The Court ORDERS the parties to appear for a pre-trial conference on October 2, 2025 at 11:00 AM by Zoom. A separate notice of the pre-trial videoconference will issue; notwithstanding the notice's terms, the Court (1) ORDERS the Association to take the lead in preparing the parties' second joint pretrial memorandum and (2) GRANTS the parties leave to omit from the memorandum a discussion of the standard of review for the Board's decision. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 09/19/2025 14:03:01
  101. Scheduled Judge: Vhay, Hon. Michael D. Event: Pre-Trial Conference Date: 10/02/2025 Time: 11:00 AM
  102. Joint Pre-Trial Memorandum, filed.
  103. Joint Exhibit List, filed.
  104. Request for Judicial Notice , filed.
  105. Event Resulted: Pre-Trial Conference scheduled on: 10/02/2025 11:00 AM Has been: Held via video Hon. Michael D. Vhay, Presiding
  106. Pretrial videoconference held. Ms. Feldman appeared representing herself. The Sanctuary Condominium Association appeared through counsel. After hearing from the parties, the Court ORDERS them to appear for a final telephonic pre-trial conference on November 5, 2025 at 9:30 AM. The Court ORDERS the parties and their witnesses to appear on November 10 and 12, 2025 for trial to be held either at the Salem Housing Court and the Land Court in Boston. A separate order in advance of trial will issue. The Court DENIES Feldman's motion for leave to take additional discovery. The Court also DENIES the Association's request for judicial notice of two court decisions. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 10/02/2025 14:10:40
  107. Scheduled Judge: Vhay, Hon. Michael D. Event: Telephone Conference Call Date: 11/05/2025 Time: 09:30 AM
  108. Scheduled Judge: Vhay, Hon. Michael D. Event: Trial - Housing Court Courtroom D in Salem Date: 11/10/2025 Time: 09:30 AM
  109. Scheduled Judge: Vhay, Hon. Michael D. Event: Trial - Suffolk County Courthouse (Land Court) Date: 11/12/2025 Time: 09:30 AM
  110. Order in Advance of Trial, issued. (Copies emailed to Attorneys Gina Desrochers and Scott Eriksen, and Pro Se Plaintiff Debra Feldman) Judge: Vhay, Hon. Michael D.
  111. The Court ORDERS the parties to appear at Ms. Feldman's unit at the Sanctuary Condominium, and other units that pertain to this case, at 8:30 AM on Monday, November 10, 2025. The Court ORDERS the parties to appear thereafter at Housing Court Courtroom D in Salem on November 10, 2025. The Court ORDERS the parties to appear for a second day of trial at 9:30 AM on Wednesday, November 12, 2025. The Court ORDERS the parties to have their witnesses appear at the respective courtrooms in compliance with this and the Order in Advance of Trial previously issued. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 10/08/2025 07:52:37
  112. Scheduled Judge: Vhay, Hon. Michael D. Event: View Date: 11/10/2025 Time: 08:30 AM
  113. Email Motion for Extension until October 31, 2025 to submit trial documents, filed and ALLOWED (Vhay, J.). Notice of Docket Entry sent to parties by email.
  114. Summons returned to Court with service on filed. Maria Laverghetta (for Trial)
  115. Joint Exhibit List, filed.
  116. Defendant's Proposed Findings of Fact, filed.
  117. Plaintiff's Proposed Findings of Fact, filed.
  118. Agreed Findings of Fact, filed.
  119. Defendant The Sanctuary Condominium Association's Trial Brief, filed.
  120. Plaintiff's Trial Brief, filed.
  121. Plaintiff's Exhibit List, filed.
  122. Telephonic final pre-trial conference held. Ms. Feldman appeared representing herself. The Board appeared through counsel. The Court gave Ms. Feldman instructions for how to present her testimony at trial. The Court ORDERS the parties to appear for a view on November 10, 2025 at 8:30 AM at 13 Aurora Lane, Salem, followed by the first day of trial to be held at the Housing Court in Salem. The subsequent days of trial will be held at the Land Court in Boston. The Court ORDERS the Board to bring the parties' exhibit binders to court on the first day of trial. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Defendant: Scott John Eriksen, Esq. [email protected] Defendant: Gina Marie Desrochers, Esq. [email protected] Plaintiff: Debra Feldman [email protected] Sent On: 11/05/2025 12:32:16
  123. Event Resulted: Telephone Conference Call scheduled on: 11/05/2025 09:30 AM Has been: Held via telephone Hon. Michael D. Vhay, Presiding
  124. Event Resulted: View scheduled on: 11/10/2025 08:30 AM Has been: Held in person Hon. Michael D. Vhay, Presiding
  125. Event Resulted: Trial scheduled on: 11/10/2025 09:30 AM Has been: Held - First Day of Trial Comments: Held in Salem Hon. Michael D. Vhay, Presiding

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