Massachusetts Appeals Court
Cashin v. Murrow
No. 12-P-1928.
BRIAN CASHIN
vs.
CLAUDIA MURROW.
Appeals Court of Massachusetts.
Entered: December 2, 2013.
By the Court (Meade, Rubin & Carhart, JJ.)
Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the allowance of summary judgment in the plaintiff's favor on the plaintiff's primary claim and the defendant's counterclaims. We affirm in part and reverse in part.
Background.
The facts in this case are not in dispute. On November 24, 1987, Claudia Murrow purchased a parking space easement from Charles Bullfinch Associates, Inc., the developer of the Charles Bullfinch Condominiums (condominium). Murrow was not a condominium owner, nor was she a member of the condominium association (association). Her only connection to the condominium was her status as an owner of a parking easement on the condominium's property, for which she paid $33,000. Murrow's easement was governed by a parking easement agreement (agreement), which deeded Murrow the right `to use parking space [number forty] as shown on a plan . . . filed with the Master Deed . . . dated October 29, 1986,' as amended on February 27, and October 19, 1987. The agreement further stated that `[t]his [e]asement in [g]ross is granted pursuant to paragraph 4(a) of said [m]aster [d]eed,' which provides that `[o]wners of such [e]asements in [g]ross shall pay the annual assessments as set forth in [a]rticle VI, [§] 1 of the [b]y-[l]aws.' The relevant part of article VI of the by-laws states, `An amount equal to [ninety-five percent] of the common expenses shall be payable by the owners of units. An amount equal to five percent of the common expenses shall be payable by those owning [e]asements in [g]ross for the parking of motor vehicles.' Thus, at the time Murrow purchased her easement, she agreed to pay her share of the `[five percent] of the common expenses' apportioned to parking easement holders. The agreement made no other references to the master deed and its articles. However, article XI of the by-laws states:
`These [b]y-[l]aws may be modified or amended by the vote of sixty-seven percent . . . of all [u]nit [o]wners.' In 1989 and 1994, the association voted to amend article VI of the by-laws. The two amendments eliminated the ninety-five percent to five percent proportion of payments between condominium owners and parking easement holders, and allowed the association's trustees to `assess a separate common charge known as a parking fee, in such amount as they reasonably determine.' Additionally, the 1994 amendment allowed the association's board of managers to deny easement access `in the event that the holder of a parking easement shall fail to pay the parking fees.' Predictably, Murrow was assessed an additional parking fee in excess of the ninety-five percent to five percent agreement. Murrow refused to pay the additional fee and the association denied her access to her parking easement for a little more than fourteen years. On June 7, 1997, Murrow sent the association a letter stating, in part, `I am prepared to get a [j]udge's ruling on whether or not the basis for your [parking fee] calculations was legitimate . . . If we cannot settle this according to the dictates of the condominium documents I will be forced to seek a remedy in court and will seek triple damages, legal fees, and all expenses. . . .'
On January 10, 2007, the association's board of managers brought suit seeking unpaid costs and a lien on the parking space. Murrow filed a counterclaim on March 28, 2007. A Superior Court judge allowed the association's motion for summary judgment and Murrow appealed. In 2011, this court reversed the entry of summary judgment and the case was remanded to the Superior Court. See Cashin v. Murrow, (2011). Murrow filed an amended counterclaim, seeking damages for breach of contract (count I), for breach of a quasi-contract (count II), and for a violation of G. L. c. 93A (count III). On June 5, 2012, a Superior Court judge again allowed summary judgment, though on different grounds, in favor of the association on its claims and on Murrow's counterclaims. On appeal, we address Murrow's request for reversal of summary judgment on the association's claims and Murrow's counterclaims for breach of contract and a G. L. c. 93A violation.
Discussion.
We review a grant of summary judgment de novo, looking to the summary judgment record to determine `whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.' Roman v. Trustees of Tufts College, (2012) (citation omitted). `The principles governing interpretation of a deed are similar to those governing contract interpretation.' Estes v. DeMello, (2004). Such interpretation is a matter of law. Sullivan v. O'Connor, (2012). Where a deed grants an easement, we refer to the `explicit language of the easement as set forth in the relevant deed[],' looking to its terms for guidance as to the easement grantor's intent. Sheftel v. Lebel, (1998). We construe the deed grantor's language `most strongly against him.' Estes v. DeMello, supra at 642.
A contract may incorporate extrinsic material by reference so long as the incorporating language `clearly communicate[s] that the purpose of the reference is to incorporate the referenced material into the contract (rather than merely to acknowledge that the referenced material is relevant to the contract).' NSTAR Elec. Co. v. Department of Pub. Util., (2012) (citation omitted) (finding an extrinsic document incorporated where a reference `stated that the rates to be implemented under the agreement were those `set forth in [the extrinsic document]" and where the agreement `as a whole is incomplete in material respects when read without [the extrinsic document]'). Sheftel v. Lebel, supra at 180 (stating that `explicit references' to another document within the description of an easement may deem that document `an integral part of the instrument itself').
Here, the agreement controls our analysis. It first refers to the master deed by stating that a plan showing Murrow's parking space was filed with a master deed, as amended in 1987. The agreement then specifies that Murrow's `[e]asement in [g]ross is granted pursuant to paragraph 4(a) of the [m]aster [d]eed,' which in turn references article VI of the by-laws. The agreement makes no further references to the master deed or its by-laws. Furthermore, paragraph 4(a) of the master deed and article VI of the by-laws make no reference, whatsoever, to article XI of the by-laws. Cashin asserts that the agreement incorporates article XI by reference. It does not. The agreement's references to the master deed and its by-laws do not amount to the `clear communicat[ion]' or `explicit references' required to incorporate the full master deed or article XI by reference. Article XI and its provision allowing the association to alter the payment structure for common expenses were not part of the agreement.
If the association wanted Murrow to pay a parking fee beyond the five percent of the common expenses she agreed to in November, 1987, then the association and Murrow had to `expressly or impliedly agree to a modification.' See Dynamic Mach. Works, Inc. v. Machine & Elec. Consultants, Inc., (2005) (citation omitted). The law does not permit one party to `unilaterally change the obligations of another under contract.' Ibid. Given that article XI and the parking fee were not included in the agreement and that Murrow did not subsequently agree to a modification, Murrow was not bound to pay the parking fee. We reverse summary judgment on the association's claims and Murrow's counterclaim seeking damages caused by breach of contract. Accordingly, judgment shall enter in Murrow's favor on the association's complaint and on count I of Murrow's counterclaim, and we remand this case to the Superior Court for an assessment of damages in Murrow's favor.
We now address Murrow's argument that the trial court judge improperly granted summary judgment on her G. L. c. 93A counterclaim. General Laws c. 93A requires all claims to be raised within four years of the alleged violation. G. L. c. 260, § 5A. This statute of limitations is `subject to tolling until the plaintiff knew or should have known of the alleged injury.' Lambert v. Fleet Natl. Bank, (2007). Viewing the facts in a light most favorable to Murrow, we cannot escape the conclusion that she `knew or should have known of the alleged injury' when she sent a letter to the association in 1997 threatening a lawsuit over the parking fee. Murrow first raised her c. 93A counterclaim in 2007, nearly ten years later. Accordingly, we affirm summary judgment in the association's favor on count III of Murrow's counterclaim.
The part of the judgment in favor of Cashin is vacated and judgment shall enter in Murrow's favor on the complaint. The part of the judgment dismissing count I of Murrow's counterclaim is reversed, and the matter is remanded for further proceedings consistent with the memorandum and order of the Appeals Court. The remainder of the judgment is affirmed.
FootNotes
1. As a member of the board of managers of the Charles Bulfinch Condominium Association. We identify the plaintiff as he was identified on his complaint.
2. Murrow's original counterclaim included a claim for intentional interference with a business relationship (count I), a claim for quantum meruit (count II), declaratory judgment (count III), a claim for injunctive relief, (count IV), and allegations of G. L. c. 93A violations (count V).
3. Murrow additionally seeks a remand for proceedings on her affirmative defenses should we find the 1989 and 1994 amendments enforceable against parking easement holders. This argument and Murrow's quasi-contract counterclaim do not require our attention because we find this dispute governed by a valid contract, which does not include the 1989 and 1994 amendments. We affirm summary judgment on Murrow's quasi-contract counterclaim.