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-1034

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, Elizabeth Cerda, and the defendants, Michael Dunn and

Michael Donahue, over the administration of the condominium

association to which they belong.5 A Superior Court jury

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. Berges 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.
returned a verdict for the plaintiff, awarding her damages for

claims of abuse of process and intentional interference with a

contract. The plaintiff also obtained a declaratory judgment,

pursuant to G. L. c. 183A, adjudicating certain rights of the

parties as it relates to the condominium association. The

judgment granted equitable relief to the plaintiff, waived an

assessment against her, prohibited the defendants from

trusteeship of the association, and prescribed certain actions

for future trustees of the association. In this cross appeal,

the parties each raise several issues, which we will address in

turn. For the reasons discussed below, 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 mother, 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 also 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 eventually paid under

protest. The defendants reported to the plaintiff's bank, who

held her mortgage, that the plaintiff was in arrears on

2
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 the mortgage contract, subsequently

collected the fees directly from the plaintiff in addition to

attorney's fees. The defendants commenced collection actions

against the plaintiff, which were adjudicated in a separate

lawsuit.6

While that case was pending, the plaintiff filed a

complaint against the defendants alleging breach of fiduciary

duty, abuse of process, and tortious interference with

contractual relationship. She also sought declaratory and

injunctive relief regarding the placement of her cameras and the

administration of the condominium association. Eventually,

after five years, the case proceeded to a jury trial. At trial,

the judge dismissed the claim for breach of fiduciary duty. The

remaining two tort claims proceeded to the jury via a general

verdict slip. The judge also posed special questions to the

jury to aid in the declaratory judgment. The jury returned

verdicts in favor of the plaintiff totaling $460,000.

Discussion. 1. Defendants' issues. a. Verdict form. As

they did at trial, the defendants challenge on appeal the

general verdict form with special questions submitted by the

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

3
judge to the jury. The form, in relevant part, asked the jury

to decide whether each defendant abused process or interfered

with the plaintiff's mortgage contract, and, if so, to allocate

damages to the plaintiff. The defendants argue, with no

citation to authority, that the form constituted error because

it did not differentiate claims against them individually from

claims against them in their capacity as trustees.7 Having

failed to cite any legal authority, the defendants have waived

this claim on appeal. See Lolos v. Berlin, 338 Mass. 10, 14

(1958) (appealing party's "duty is to assist the court with

argument and appropriate citation of authority"); Mass. R. A. P.

16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019)

(contentions of party must include citations to pertinent legal

authority). Even if not waived, the claim, essentially

challenging the jury instructions,8 Hobbs v. TLT Constr. Corp.,

78 Mass. App. Ct. 178, 180 (2010), evinces no prejudicial error.

See Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 310

(2009), quoting Masingill v. EMC Corp., 449 Mass. 532, 540 n.20

(2007) ("When reviewing jury instructions to which there has

7 We note that the defendants cited no authority in support
of this argument, nor did they cite to the record of the judge's
jury instructions, nor did they properly cite the standard of
review.

8 Indeed, the judge did not instruct the jury on different
theories of liability, so a verdict form reflecting such an
instruction would have constituted error.

4
been an objection, we conduct a two-part test: 'whether the

instructions were legally erroneous, and (if so) whether that

error was prejudicial'").

The defendants point to language in the 10 Porter Street

Condominium Declaration of Trust that entitles them to indemnity

for "liabilities in contract and in tort" incurred in the

execution of the trust. They argue this language entitled them

to a verdict slip that specified whether they were acting in

their capacity as trustees when they incurred the liability in

question -- if they acted as trustees, they contend that they

would be entitled to indemnification and could not be considered

personally liable under the language of the trust instrument.

The defendants' attempt to avoid liability by distinguishing

their personal acts from acts taken as trustees is foreclosed by

the entirety of the verdict slip. Answering special questions,

the jury concluded that both defendants performed their duties

"in bad faith, meaning with a motive of self-interest or with

ill will towards [the plaintiff]." That specific finding of

"bad faith" would have precluded the defendants from invoking

the trust's indemnification provision that required actions by

the trustees to be taken in "good faith." Therefore, the

defendants did not suffer any prejudice from the absence of the

instruction.

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b. Motion for new trial. The jury awarded the plaintiff

damages totaling $460,000.9 The defendants, arguing the damages

were excessive, moved for a new trial or to amend the judgment,

pursuant to Mass. R. Civ. P. 59 (a), (e), 365 Mass. 827 (1974),

which the judge denied. We review a trial judge's decision on

such a motion for abuse of discretion. See W. Oliver Tripp Co.

v. American Hoechst Corp., 34 Mass. App. Ct. 744, 748 (1993). A

trial judge should grant a motion for a new trial in a civil

case only where "the verdict is so markedly against the weight

of the evidence as to suggest that the jurors allowed themselves

to be misled, were swept away by bias or prejudice, or for a

combination of reasons, including misunderstanding of applicable

law, failed to come to a reasonable conclusion." Id.

Furthermore, "[a]n award of damages must stand unless . . . to

permit it to stand was an abuse of discretion on the part of the

court below, amounting to an error of law." Reckis v. Johnson &

Johnson, 471 Mass. 272, 299 (2015), cert. denied, 577 U.S. 1113

(2016), quoting Labonte v. Hutchins & Wheeler, 424 Mass. 813,

824 (1997). "It is an error of law if 'the damages awarded were

greatly disproportionate to the injury proven or represented a

9 For the abuse of process claim, the plaintiff was awarded
$160,000 for her costs, $129,000 for emotional harm, and $28,000
for harm to her reputation. For the intentional interference
with contract claim, she was awarded $30,000 for her costs and
$113,000 for emotional harm.

6
miscarriage of justice.'" Reckis, supra, quoting Labonte,

supra.

For abuse of process, plaintiffs "must show that damage

occurred as the natural and probable consequences of the wrong

done." Quaranto v. Silverman, 345 Mass. 423, 427 (1963). The

costs of defending against an improper action, the emotional

harm a party suffers, and the harm to the party's reputation are

compensable categories of damages for an abuse of process claim

so long as the specific damages are affirmatively proved. See

Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 645

(2010). For an intentional interference action, a plaintiff

must show economic harm and may advance a claim for

consequential emotional distress damages. See Cachopa v.

Stoughton, 72 Mass. App. Ct. 657, 664 (2008).

The crux of the defendants' argument is that there was

insufficient evidence for the jury to award damages. Because

they failed to move for a directed verdict on this ground,

however, this claim is waived. Reckis, 471 Mass. at 300

(defendants waived claim where they "never challenged the

absence or insufficiency of such evidence through a motion for a

directed verdict on this ground"). To the extent that the

defendants argue that the jury award was excessive, we are

equally unpersuaded. There was evidence here that the plaintiff

invested time in litigating the defendants' abuse of process as

7
a self-represented litigant and that the case likely had an

impact on her emotionally and reputationally. See Millenium

Equity Holdings, LLC, 456 Mass. at 649-650. The defendants

argue that the plaintiff was required to prove damages with more

specificity, but "that there may be an element of uncertainty as

to the amount of damages does not bar their recovery." Selmark

Assocs. v. Ehrlich, 467 Mass. 525, 545 (2014), quoting Stuart v.

Brookline, 412 Mass. 251, 256-257 (1992). Furthermore, we

cannot say that the judge abused her discretion in determining

the damages awarded were not excessive given that the litigation

between these parties has continued for nearly a decade.

c. Issue preclusion. The defendants also argue that the

judge erroneously denied their request for judicial notice that

their use of process was not in bad faith. In a previous

action, a single justice of this court upheld a lower court's

denial of a request for attorney's fees by Cerda against the

defendants (plaintiffs in that action) pursuant to G. L. c. 231,

§ 6F. The defendants argue that this decision entitles them to

issue preclusion for the improper purpose element of the

plaintiff's abuse of process claim. This argument is without

merit. "Before precluding a party from relitigating an issue, a

court must determine that . . . the issue in the prior

adjudication was identical to the issue in the current

adjudication" (quotation omitted). Kobrin v. Board of

8
Registration in Med., 444 Mass. 837, 843 (2005), quoting Tuper

v. North Adams Ambulance Serv., Inc., 428 Mass. 132, 134 (1998).

The issue in a § 6F determination is whether the claims in

question were "wholly insubstantial, frivolous and not advanced

in good faith." Danger Records, Inc. v. Berger, 444 Mass. 1, 8

(2005), citing G. L. c. 231, § 6F. In contrast, an abuse of

process claim requires a plaintiff to show "ulterior or

illegitimate purpose." Millennium Equity Holdings, LLC, 456

Mass. at 636. A claim for abuse of process may be proven

despite the underlying process being entirely nonfrivolous, and

therefore issue preclusion based on the § 6F determination would

have been inappropriate. There was no error.10

2. Plaintiff's issues. a. Declaratory judgment. In her

cross-appeal, the plaintiff seeks a modification of the

declaratory judgment pursuant to Mass. R. Civ. P. 60 (b), 365

Mass. 828 (1974). She argues that the judge's declaratory

10 The defendants also argue that the judge erred in denying
their motion for sanctions against the plaintiff for failure to
comply with discovery orders. Sanctions orders are within the
judge's discretion. See Commonwealth v. Edwards, 491 Mass. 1,
7-8 (2022). The defendants received a remedy -- exclusion of
unproduced, responsive documents at trial. They fail to
indicate how they were prejudiced by this remedy, nor do they
point to any law indicating that such a remedy would constitute
an abuse of discretion. This does not rise to the level of
appellate argument, and we decline to consider it. See Kellogg
v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011);
Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628
(2019).

9
judgment must be amended because it is ambiguous. Specifically,

the plaintiff takes issue with the language indicating the

trustees "may levy reasonable fines for security cameras located

within the exterior of any unit." She argues this language

conflicts with a previous judgment that indicated cameras

located on the exterior of window frames were not prohibited by

the condominium master deed. The plaintiff also argues the

language of the declaratory judgment must specify the rights of

the owners as to the common areas.

"The resolution of motions for relief from judgment 'rests

in the discretion of the trial judge.'" Atlanticare Med. Ctr.

v. Division of Med. Assistance, 485 Mass. 233, 247 (2020),

quoting Wojcicki v. Caragher, 447 Mass. 200, 209 (2006).

"Accordingly, the denial of a motion under Rule 60 (b) will be

set aside only on a clear showing of an abuse of discretion"

(quotation and citation omitted). Atlanticare, supra. Here,

the language at issue is not ambiguous and does not prohibit

cameras on the exterior of unit window frames, regardless of the

plaintiff's fears. Furthermore, the defendants agree that the

language at issue does not prohibit the placement of cameras on

the exterior of unit window frames. There was, accordingly, no

abuse of discretion.11

11There was similarly no abuse of discretion in the judge's
language singling out cameras, as the placement of cameras

10
b. Attorney's fees. The plaintiff argues the judge erred

in declining to award attorney's fees or costs to either party.

"A decision regarding attorney's fees is reviewed for an abuse

of discretion." Blake v. Hometown Am. Communities, Inc., 486

Mass. 268, 284 (2020). The plaintiff assigns error to the

judge's assertion that determining an equitable fee allocation

is impossible. She argues that it is possible to discern what

fees the trust incurred to pursue improper actions against her.

She neglects, however, the fact that the judge declined to award

fees after determining both parties engaged in "unreasonable

litigation actions." We discern no abuse of discretion.

c. Dismissal of breach of fiduciary duty claim. The

plaintiff initially brought a claim on behalf of the trust

alleging that the defendants breached their fiduciary duty to

the trust. The judge, however, dismissed the claim sua sponte

because the plaintiff lacked standing to bring the claim

personally and could not bring it derivatively as a self-

represented litigant. On appeal, the plaintiff claims this

formed the basis for the controversy in this case. Furthermore,
there was no abuse of discretion in the judgment that fees may
be levied for cameras in limited common areas, as the "purpose
of declaratory judgment is to remove, and to afford relief from,
uncertainty and insecurity before an impending controversy
reaches the point of breach and litigation" (quotation and
citation omitted). Merriam v. Demoulas Super Mkts., Inc., 464
Mass. 721, 726 (2013). It was entirely appropriate for the
judge to determine in what circumstances fees may be levied when
adjudicating the rights of the parties.

11
dismissal was erroneous and asserts, supported by no authority,

see Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass.

1628 (2019), that she should have been permitted to bring the

claim derivatively on the trust's behalf.

Even if this claim, unsupported by any legal authority,

were not waived on appeal, we discern no error. "The question

of legal standing is a jurisdictional matter." Marchese v.

Boston Redev. Auth., 483 Mass. 149, 156 (2019). "Where a

plaintiff lacks standing to bring an action, the court lacks

jurisdiction of the subject matter and must therefore dismiss

the case." Id. The trustees did not owe a fiduciary duty to

the plaintiff directly, but rather to the condominium

association. See Office One, Inc. v. Lopez, 437 Mass. 113, 125

(2002) (condominium trustees owe no fiduciary duty to individual

owners). Since she was owed no fiduciary duty, the plaintiff

could not proceed individually but rather was required to

proceed through a derivative suit on behalf of the condominium

association. See Cigal v. Leader Dev. Corp., 408 Mass. 212, 219

(1990). Although the plaintiff did attempt to bring the claim

derivatively, "corporations must appear and be represented in

court, if at all, by attorneys." Varney Enters., Inc. v. WMF,

Inc., 402 Mass. 79, 82 (1988). Accordingly, no individual may

represent corporations or "other parties in civil actions . . .

without a license to practice law." Burnham v. Justices of the

12
Superior Court, 439 Mass. 1018, 1018 (2003). "The same

reasoning applies to trusts." Braxton v. Boston, 96 Mass. App.

Ct. 714, 717 (2019). Because the plaintiff could not bring the

claim individually and could not represent the trust's interest

as a non-attorney, the breach of fiduciary claim was properly

dismissed.

d. Trial evidence. The plaintiff next argues that the

judge erred in not admitting affidavits of defendants' counsel

from a different case that incorrectly stated her bank had paid

less than she owed for attorney's fees. "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). The plaintiff fails to

articulate on appeal why this affidavit was relevant, nor can we

discern from the record what purpose the proffered evidence

would have served.12 To the extent that the affidavit would have

showed the defendants' improper motive, the plaintiff prevailed

in her claims that required such proof.

e. Motion to appoint a receiver. Finally, the plaintiff

claims the judge erred in denying her motion to appoint a

receiver. We review a denial of a posttrial motion for abuse of

12The plaintiff argues that the jury would have awarded her
more damages if they had seen the affidavits, but this is
irrelevant as to whether the affidavits were admissible.

13
discretion. Cf. Blake, 486 Mass. at 278. The plaintiff argues,

essentially, that the judge erred in not appointing a receiver

to manage the trust because the defendants maintained a

controlling voting interest in it. The judge's order granting

the plaintiff equitable relief removed the defendants as

trustees and prohibited them from serving as trustees either

directly or indirectly. The defendants retained ownership of

several of the condominium units, and the order did not remove

their ability to vote for new trustees. To the extent the

plaintiff asserts that the defendants are violating the judge's

equitable order serving indirectly as trustees, that is not an

issue properly before us on appeal. 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). The judge did not abuse her discretion,

however, by allowing the defendants to continue voting for

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trustees because the equitable order did not prohibit them from

doing so.13

Judgment affirmed.

By the Court (Meade, Walsh &
Hodgens, JJ.14),

Clerk

Entered: October 29, 2025.

13 The plaintiff's request for attorney's fees is denied.

14 The panelists are listed in order of seniority.

15