Few families have kept Massachusetts lawyers and journalists busier than the Demoulas clan, which includes Frances Demoulas Kettenbach, sister of the respected Arthur T. Demoulas. This month, the Appeals Court upheld a costly judgment involving a Back Bay condominium against Frances Kettenbach, her husband Michael and former attorney Gary Crossen.
In 1977 Jerome Wodinsky and his wife Bernadette purchased unit three on the fourth floor of a five-unit condominium at 303 Commonwealth Ave. in Boston. The Kettenbachs bought unit one of the condominium in 1996. They later purchased unit five through a limited partnership and unit two through a trust with Gary Crossen as trustee. They hoped to acquire all five units and convert the building into their personal residence.
A brief digression regarding Crossen is warranted. Crossen is a former federal prosecutor who supervised undercover investigations and court-ordered wiretaps. In 1988 he left government service and joined a Boston law firm. During the 1990s, Crossen represented Frances Kettenbach in the Demoulas family’s epic litigation over the Market Basket supermarket chain. Displeased with a superior court judge’s rulings in the case, Crossen participated in an elaborate scheme involving a phony business that interviewed the judge’s former law clerk. Crossen hoped that the interviews would prove the judge’s bias and disqualify her from the case.
Crossen was disbarred in February 2008 after his transgressions came to light. Supreme Judicial Court Chief Justice Margaret Marshall described Crossen’s misconduct as “so egregious and extensive that no reasonable attorney could have believed it comported with the solemn ethical obligations of attorneys.”
After the Kettenbachs secured the third unit in the five-unit building, they proposed expensive improvements. The Wodinskys objected. Nevertheless, Frances Kettenbach signed a contract for the improvements. The Kettenbachs arranged a board meeting to vote for the improvements and sent the recently-disbarred Crossen. A jury later found that Crossen held no proxies, rendering his votes ineffective. The Wodinskys and the owner of unit four opposed the improvements. After this dubious board meeting, Crossen demanded a $31,487 payment from the Wodinskys for the improvements. Facing a similar demand, the unit four owner sold her unit to the Kettenbachs’ trust and the Kettenbachs forgave her share of the condominium assessment. She later testified that she felt “forced out” because she could not afford the improvements and the legal fees needed to fight the Kettenbachs. The Wodinskys faced the Kettenbachs and Crossen alone.
The standoff intensified. An attorney demanded that the Wodinskys pay $31,487 within 30 days. The Wodinskys made the full payment 34 days later, but the attorney refused to accept it and demanded an additional $2,472. A copy of the attorney’s demand letter was affixed to the building’s front entrance. The Kettenbachs caused the condominium board to sue the Wodinskys for the unpaid assessment.Back In The Building…
Meanwhile, problems arose with the elevator.
A Department of Public Safety (DPS) inspector cited the elevator for violations. The elderly Wodinskys and Jerome’s ailing brother depended on the elevator to access their fourth-floor unit. There was evidence that the Kettenbachs had arranged the inspection, hoping that DPS would condemn the elevator so it had to be replaced. The Kettenbachs shut the elevator down and hired a contractor to replace it for $273,000. The elevator was unusable for 10 months, while the Wodinskys struggled with the stairway. Unable to manage the stairs, Jerome’s older brother died, confined to unit three.
The Kettenbachs pressed their campaign, demanding an additional $142,001 from the Wodinskys and scheduling another board meeting to discuss claims against them. The Wodinskys filed their own lawsuit against the Kettenbachs and Crossen for violation of the Wodinskys’ civil rights, intentionally infliction of emotional distress, abuse of process and conspiracy. They also sued for violation of Massachusetts General Laws Chapter 93A, which prohibits unfair business practices. After contentious litigation, including a 19-day trial, a jury awarded $1.85 million to the Wodinskys, including $350,000 for violations of the Massachusetts Civil Rights Act, $100,000 for abuse of process and $1.4 million for violation of Chapter 93A.
The trial judge overruled the $1.4 million award for violation of Chapter 93A, thus reducing the Wodinskys’ judgment to $450,000. Both sides appealed. On Jan. 6, the Appeals Court upheld the trial court’s judgment. The court ruled that the Kettenbachs did not violate Chapter 93A because their misconduct was motivated by personal, not business, reasons. On the other counts, however, the Appeals Court affirmed the judgments against the Kettenbachs and Crossen, and required them to pay the Wodinskys’ attorneys’ fees.
Despite the judgment in their favor, the Wodinskys are not winners. After enduring the Kettenbachs’ and Crossen’s torments, and reduction of their jury award by $1.4 million, one can speculate that the Wodinskys would rather enjoy their home unmolested than prevail in this lawsuit.
Christopher R. Vaccaro is a partner at Looney & Grossman LLP in Boston. His email address is cvaccaro@lgllp.com.
