ELIZABETH CERDA & Another v. MICHAEL DUNN & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1365

ELIZABETH CERDA & another1

vs.

MICHAEL DUNN2 & another.3,4

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case arises from a series of disputes between the

plaintiff, Carmen Berges, and the defendants, Michael Donahue

and Michael Dunn, over the administration of the condominium

association to which they each belong.5 The plaintiff filed a

1 Carmen Berges.

2Individually and as trustee of the 10 Porter Street
Condominium Trust.

3Michael Donahue, individually and as trustee of the 10
Porter Street Condominium Trust.

4We take the caption from the plaintiffs' amended
complaint, as is our custom. Cerda did not participate in this
appeal but instead filed a separate appeal.

5For more detailed background on the disputes, see Trustees
of the 10 Porter St. Condominium Trust v. Cerda, 99 Mass. App.
Ct. 1106 (2021), which we incorporate by reference.
complaint in the Superior Court and alleged tort claims of abuse

of process and interference with contractual relations and

sought declaratory and equitable relief.6 The jury found the

defendants not liable for the tort claims, and the judge issued

declaratory judgments in the defendants' favor and granted the

plaintiff no equitable relief. We affirm.

Background. We briefly summarize the facts as the jury

could have found them. The underlying controversy between the

parties arose when the plaintiff and her daughter, each an owner

of a unit in the condominium association, placed surveillance

cameras in various locations on the property. The defendants,

as trustees of the association, demanded the plaintiff remove

her cameras and assessed fines against her when she refused.

The defendants issued special assessments, ostensibly requiring

all owners in the association to pay a portion of costs for

repairs, legal fees, and insurance premiums. The plaintiff

disputed the assessments but paid under protest. The defendants

reported to the bank holding the plaintiff's mortgage that the

plaintiff was in arrears on condominium fee payments. This

caused the bank to pay the fees on the plaintiff's behalf to

preserve its security interest in the property. The bank, per

6 The complaint also stated a claim for breach of fiduciary
duty, which was dismissed prior to trial.

2
the mortgage contract, subsequently collected the fees directly

from the plaintiff along with additional fees.

Later, the defendants commenced collection actions against

the plaintiff and her daughter, which were adjudicated in a

separate lawsuit.7 In that case, one of the plaintiff's cameras,

placed on her unit's porch railing, was found to violate the

rules of the condominium trust. While that case was in

progress, the plaintiff and her daughter filed the complaint

that forms the basis of this case.

In September 2023, the judge bifurcated the trials of the

plaintiff and her daughter, with the daughter's trial taking

place first. In that trial, the defendants were found liable

for the daughter's tort claims. The judge also entered a

declaratory judgment based on special questions answered by the

jury that, in relevant part, a special assessment imposed by the

defendants was not essential to the financial integrity of the

condominium trust nor fairly enforced against the owners. The

plaintiff's trial began in April 2024, and the jury found the

defendants not liable for the torts of abuse of process and

intentional interference with contractual relations. The jury

in the plaintiff's case also determined that the same assessment

7 See Trustees of the 10 Porter St. Condominium Trust v.
Cerda, 102 Mass. App. Ct. 1120 (2023), for more background.

3
discussed above was fairly enforced as to her, after it heard

evidence that the work necessitating the assessment had been

completed. The plaintiff appeals, taking issue with several

aspects of her trial. We address each in turn.

Discussion. 1. Motion for a new trial. The plaintiff

attempted to move for a new trial pursuant to Mass. R. Civ. P.

59 (a), 365 Mass. 827 (1974). Her motion was stricken for

failure to comply with the judge's June 12, 2024, order

requiring the parties to seek leave of the court to file any

additional motions. On appeal, the plaintiff claims,

essentially, that this order was an abuse of the judge's

discretion. We disagree.

Judges have the inherent power to manage their dockets.

See Commonwealth v. Charles, 466 Mass. 63, 73 (2013), quoting

Link v. Wabash R.R., 370 U.S. 626, 630-631 (1962) ("inherent

power enables courts 'to manage their own affairs so as to

achieve the orderly and expeditious disposition of cases'"). By

the time of the 2024 order, the judge had already warned the

parties, on at least four occasions, not to engage in

"unreasonable, if not abusive, tactics." The parties

nevertheless continued to file "numerous motions" in violation

of the judge's previous orders. Furthermore, the judge merely

imposed a requirement that the parties indicate, in a two-page

4
motion, "the nature of, and basis for, any motion they seek to

file." Fashioning such a requirement was well within the

judge's inherent authority. See Charles, supra. Furthermore,

the plaintiff made no attempt to comply with the judge's order

to seek leave to file her motion for new trial, and it was

appropriately stricken.

2. "Judicial notice" of facts adjudicated in the prior

trial. The plaintiff next claims that the judge erred by

failing to take judicial notice of certain facts established in

her daughter's trial.8 "We review a trial judge's evidentiary

decisions under an abuse of discretion standard." N.E. Physical

Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363

(2013). We review any preserved error for prejudice. See

Adoption of Ulrich, 94 Mass. App. Ct. 668, 680 (2019). The

plaintiff argues, to the extent we can distill her argument,

that the judge should have given the facts preclusive effect and

8 The facts at issue were: (1) the special assessment was
unlawful; (2) the trustees did not enforce the condominium rules
uniformly and fairly; (3) the trustees did not hold annual
meetings pursuant to the governing documents; and (4) the
trustees did not render an accounting to unit owners pursuant to
the governing documents.

5
estopped the defendants from relitigating them.9 As a threshold

matter, three of the four issues the plaintiff raises are moot.10

As to the issue of the legality of the special assessment,

there was no abuse of discretion. A trial judge has "'wide

discretion in determining whether' applying offensive collateral

estoppel 'would be fair to the defendant.'" Pierce v. Morrison

Mahoney LLP, 452 Mass. 718, 731 (2008), quoting Bar Counsel v.

Board of Bar Overseers, 420 Mass. 6, 11 (1995). To apply issue

preclusion, a court must determine that

"(1) there was a final judgment on the merits in the prior
adjudication; (2) the party against whom preclusion is
asserted was a party (or in privity with a party) to the
prior adjudication; and (3) the issue in the prior
adjudication was identical to the issue in the current
adjudication."

TJR Servs. LLC v. Hutchinson, 495 Mass. 142, 145 (2024), quoting

Kobrin v. Board of Registration in Med., 444 Mass. 837, 843

(2005).

9 Ordinarily, an objection to the denial of a motion in
limine does not preserve the issue for appellate review. See
Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 639 (2001). We
nevertheless discuss the issue because the plaintiff attempted
to introduce the facts during trial, despite the lack of sidebar
when the defendants' objections were sustained.

10In the daughter's case, the court awarded equitable
relief requiring the condominium trustees to hold annual
meetings at a specified time and date and make accounting
records available. It also removed the defendants as trustees
and prohibited them from serving as trustees for the condominium
trust again. Accordingly, there could be no prejudice to the
plaintiff where she had already obtained relief.

6
In the previous case, the jury found that the trustees did

not "fairly and reasonably enforce the $140,000 special

assessment due January 1, 2017, against all owners between

January 2016 and the present [September 29, 2023]" (emphasis

added). The judge posed the same special question to the jury

in the plaintiff's trial, which began on April 24, 2024.

Because the issue in the plaintiff's trial included a period of

time not included in the previous trial, the issues were not

identical, and issue preclusion would be therefore improper.

See TJR Servs. LLC, 495 Mass. at 145. Furthermore, the jury

heard evidence that the work necessitating the assessment had

been completed, which the judge had discretion to find was an

"[o]ther compelling circumstance[] [that] make[s] it appropriate

that the party be permitted to relitigate the issue." Bar

Counsel, 420 Mass. at 12. Particularly where the chief concern

is fairness to the defendants, see Pierce, 452 Mass. at 731, we

cannot say the judge abused her discretion in permitting the

defendants to litigate these issues.11

3. Loss of lien. The defendants had filed an action

against the plaintiff to obtain a judgment for unpaid fines and

11The plaintiff's argument that it was error for the judge
to admit evidence not introduced at her daughter's trial
similarly fails because the defendants were not precluded from
litigating issues that arose in the previous trial.

7
late condominium fees. The plaintiff contends that the judge

failed to dismiss the defendants' counterclaim because they had

lost their lien pursuant to G. L. c. 183A and G. L. c. 254, § 5.

Her argument misunderstands the nature of the defendants'

counterclaim and the purpose of the statute. The defendants

were seeking damages against the plaintiff and her unit for

violating condominium rules, as well as injunctive and

declaratory relief. To the contrary, G. L. c. 183A, § 6 (c),

states: "Neither this section nor anything contained in [§§ 5

or 5A of G. L. c. 254] . . . shall be deemed to prohibit actions

to recover sums for which this subsection creates a lien

. . . ." There was, accordingly, no error.

4. Verdict contrary to the evidentiary record. The

plaintiff next contends that the jury verdict was not supported

by the evidence at trial. The plaintiff articulates no legal

argument as to how this court may overturn a jury verdict based

on sufficiency of the evidence in a trial where the burden of

proof was on the plaintiff. Although the plaintiff points to

evidence she claims proved her case, even if the evidence was

uncontradicted, "the jury were not obliged to believe it."

Leigh v. Rule, 331 Mass. 664, 667 (1954). The plaintiff, in

essence, disputes the jury's credibility determinations, but

"[c]redibility is a question for the jury to decide; they may

8
accept or reject, in whole or in part, the testimony presented

to them" (citation omitted). Commonwealth v. Kapaia, 490 Mass.

787, 793 (2022).

5. Other evidentiary issues. The plaintiff raises

multiple evidentiary issues, which we review for abuse of

discretion. See N.E. Physical Therapy Plus, Inc., 466 Mass. at

363. First, she contends that the judge should have excluded

certain testimony elicited by the defendants because it was

allegedly perjurious. The judge interrupted the testimony in

question and conducted questioning in front of the jury to bring

out the discrepancies between the witness's testimony in the two

trials.12 This was within the judge's discretion -- "[a] trial

judge is empowered to question witnesses in order to clarify an

issue, to prevent perjury, or to develop trustworthy testimony."

Commonwealth v. Paradise, 405 Mass. 141, 157 (1989). To the

extent the plaintiff complains of other irregularities with her

trial, we are unpersuaded that the judge abused "her inherent

authority reasonably to manage a trial." Commonwealth v.

Portillo, 462 Mass. 324, 332 (2012).

The witness testified in the previous trial that he did
12

not recall if he was asked to hold checks from the defendants
for the special assessment. In the plaintiff's trial, the
witness testified that defendant Donahue asked him not to
deposit the checks.

9
Second, the plaintiff claims that defendant Donahue

committed and suborned perjury, and that the judge erred in

failing to penalize him. Whether the defendant engaged in

wrongdoing is not properly before this court. The plaintiff had

the opportunity to cross-examine the defendant, and any

discrepancies in his testimony belonged to the jury's assessment

of credibility.

Third, the plaintiff argues the court erred in admitting

evidence at her trial that was not admitted in the daughter's

case. Her argument relies on an assertion of issue preclusion,

which does not apply, as discussed above. Furthermore, the

judge admitted the evidence for its relevance in the defendants'

counterclaim against the plaintiff. The plaintiff here raises

no argument why the evidence was not relevant, alleging only

that the evidence was created after the close of the daughter's

trial. The evidence was properly admitted.

Finally, the plaintiff asserts that the court erred in

excluding evidence of her bank assessing legal fees. Although

she argues this evidence was relevant to her abuse of process

claim, she also alleges the fees were improperly assessed by the

bank. The judge had the discretion to view this evidence as a

dispute between the plaintiff and the bank that was tangential

10
to the plaintiff's claims against the defendants. We discern no

error from the exclusion of such evidence.

6. Declaratory judgment. The plaintiff takes issue with

the judge's declaratory judgment as it relates to the placing of

security cameras, arguing that the judge prejudiced her during

trial by referring to the "entire balcony," rather than just the

balcony railings. Neither the special questions posed to the

jury, nor the judgment, references the entire balcony.

11
The judgment did not alter the plaintiff's rights as to the full

balcony, and therefore the plaintiff was not prejudiced.13,14

Judgment affirmed.

By the Court (Meade, Walsh &
Hodgens, JJ.15),

Clerk

Entered: October 29, 2025.

13The defendants' request for appellate attorney's fees is
denied. To the extent that the defendants request fees,
pursuant to G. L. c. 183A, § 6, and the condominium contract, we
note that the question of whether the plaintiff has a statutory
or contractual obligation to indemnify the condominium
association is not relevant to the trial, which is the only
matter properly before us. See Kettle Black of MA, LLC v.
Commonwealth Pain Mgt. Connection, LLC, 101 Mass. App. Ct. 109,
111 n.3 (2022) (declining to pass judgment on decisions not
properly before court).

14To the extent that we do not address other arguments
raised by the plaintiff, they "have not been overlooked. We
find nothing in them that requires discussion." Department of
Revenue v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting
Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

15 The panelists are listed in order of seniority.

12