The opinion
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-62
DHURATA AMETAJ & another 1
vs.
PAMELA JULIAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This matter arises from a long-standing dispute between the
trustees of a two-trustee condominium trust about the management
of the trust property. The defendant appeals from a Superior
Court judge's denial of her emergency motion for a preliminary
injunction ordering the plaintiffs' cooperation in the
construction of a new garage on the trust property, a motion to
reconsider the same, and her requests to hold an evidentiary
hearing. 2 We affirm.
1 Arian Ametaj.
2Different judges issued the order denying the defendant's
emergency motion to order the plaintiffs' cooperation and an
earlier order compelling arbitration of the dispute. Following
the chronology of the case, we refer to the judge who compelled
Background. The parties each own one unit of a two-unit
condominium. The condominium is managed by a trust, which
governs, inter alia, the maintenance of common areas on the
condominium property. The parties are the two trustees. The
trust provisions divide the parties' interests in the common
areas, granting the defendant a fifty-five percent interest and
the plaintiffs a forty-five percent interest. The distribution
of the common area interests dictates cost sharing and decision-
making among the trustees. Regarding costs, the bylaws state
that "Unit Owners shall be liable for common expenses and
entitled to common profits of the Condominium in proportion to
their respective percentages of beneficial interest." Regarding
decision-making, the trust provisions state that "[t]he
beneficial interest of each Unit of the Condominium shall be
held and exercised as a Unit and shall not be divided among
several owners of any such Unit."
In or around June 2011, the defendant solicited an estimate
from a contractor to repair the roof of the shared garage on the
property and provided the estimate to the plaintiffs. The
plaintiffs believed the estimate was too high and wanted to
obtain additional estimates. The record contains no evidence of
arbitration as the first judge and the judge who denied the
defendant's motions for a preliminary injunction and for
reconsideration as the second judge.
2
any further communication between the parties until late 2012,
when the defendant followed up with the plaintiffs regarding the
garage repair. The plaintiffs responded that they "[could not]
afford any work on the garage right now."
In November 2019, 3 the plaintiffs sought a preliminary
injunction to remove the defendant as a trustee because of the
parties' failure to agree about the necessary maintenance and
repairs of the common areas. The first judge requested that the
parties attempt to mediate their dispute, but the subsequent
mediation effort was unsuccessful.
On August 24, 2020, the first judge held a hearing
regarding several outstanding matters, including the plaintiffs'
motion to dismiss the action due to perceived inaction of the
court. At the hearing, the plaintiffs expressed a desire to
sell their condominium. Though the defendant did not object to
the plaintiffs' request, she sought reassurance that the
plaintiffs would uphold their obligation to pay for their
respective share of any garage repairs made before the sale of
their interest. The first judge entered an order to compel
arbitration as provided by the trust and its bylaws and stayed
the action pending arbitration.
3 The record contains no evidence of any communications
between the parties between 2012 and 2019.
3
On November 14, 2023, the defendant filed an
"urgent/emergency" motion for a preliminary injunction ordering
the plaintiffs' cooperation in the construction of a new garage
on the trust property. The plaintiffs filed a response to the
motion, asserting that their opposition was grounded in the
defendant's unyielding desire to install the garage with an
electric garage door, which would cost an additional $20,000.
The second judge did not hold a hearing "due to the emergency
nature of the motion," found that the defendant had not shown
irreparable harm, and denied the motion. The second judge also
denied the defendant's "emergency motion for reconsideration [of
her request for a preliminary injunction], further clarification
and stay of court orders" (motion for reconsideration) and a
"request for speedy evidentiary hearing." The defendant timely
appealed from these orders.
Discussion. 1. Denial of preliminary injunction. "The
focus of appellate review of the denial of a motion for a
preliminary injunction is 'whether the judge applied proper
legal standards and whether there was reasonable support for
[his] evaluation of the factual questions.'" Cote-Whitacre v.
Department of Pub. Health, 446 Mass. 350, 357 (2006), quoting
Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec.
Co., 399 Mass. 640, 642 (1987). "A party seeking a preliminary
injunction must show that (1) success is likely on the merits;
4
(2) irreparable harm will result from denial of the injunction;
and (3) the risk of irreparable harm to the moving party
outweighs any similar risk of harm to the opposing party."
Cote-Whitacre, supra.
Here, the second judge concluded that the construction of a
garage without an electric door system desired by the defendant
did not pose a threat of irreparable harm. The second judge
reasoned that, in the future, "the replacement garage can be
modified . . . to reflect [the defendant's] preferences." The
ability to modify the garage in the future belies the
defendant's claim that the denial of this request for an
injunction caused irreparable harm. Therefore, we discern no
error of law or abuse of discretion in the second judge's
ruling. 4 See King v. Town Clerk of Townsend, 480 Mass. 7, 9
(2018).
4 We also discern no abuse of discretion in the second
judge's denial of the defendant's motion to reconsider the same
motion. See Kauders v. Uber Techs., Inc., 486 Mass. 557, 568
(2021). The basis of the defendant's motion was the realization
that delaying the construction of the garage door would increase
its cost. The second judge properly reasoned that the defendant
failed to cite "any '"newly discovered evidence" that, in the
exercise of due diligence, could not have been produced' before
the [Superior] Court acted on her original motion" (citation
omitted). Moreover, an increase in the financial burden to the
defendant ordinarily would not constitute irreparable harm. See
Tri-Nel Mgt., Inc. v. Board of Health of Barnstable, 433 Mass.
217, 227-228 (2001).
5
2. Denial of requests for evidentiary hearing. Rule
9A(c)(1) of the Rules of the Superior Court (2023) provides for
a hearing on a motion "[i]f the court believes that a hearing is
necessary or helpful to a disposition of the motion." Rule
9A(c)(2) of the Rules of the Superior Court requires a party
requesting a hearing to "set forth any statute or rule of court
which, in the judgment of the submitting party, requires a
hearing on the motion, as well as any reason why the court
should hold a hearing."
Here, the second judge correctly reasoned, in denying
reconsideration and the defendant's second request for a
hearing, that "[a]s before," an evidentiary hearing would not be
necessary to address the defendant's motion, stating (as to the
first request) that "the [c]ourt did not require a hearing to
determine that [the] [d]efendant . . . failed to demonstrate
sufficient risk of irreparable harm to warrant injunctive
relief." Furthermore, the defendant's requests for a hearing,
despite the requirement of rule 9A(c)(2), did not "set forth any
statute or rule of court which, in the judgment of the
submitting party, require[d] a hearing on the motion."
Therefore, we discern no error in the second judge's decision to
adjudicate the defendant's motions without a hearing.
3. Requests for the plaintiffs to pay garage costs and for
matter to be dismissed. The defendant also seeks two additional
6
remedies on appeal. She requests that this court order the
plaintiffs to pay their share of garage-related costs. The
defendant also requests that the matter be dismissed because
"[t]he new garage work is completed in compliance with the Trust
By-Laws . . . with exception to the install of the garage
electric and heat detector system pursuant to the MA Fire and
Safety code issued permits." Neither request was the subject of
a ruling designated in her notice of appeal and therefore they
are waived. See Mass. R. A. P. 3 (c) (1) (A) (ii), as appearing
in 491 Mass. 1601 (2023). Both arguments are also waived
because they do not rise to the level of appellate argument.
7
Mass. R. A. P. 16 (a) (9) (a), as appearing in 481 Mass. 1628
(2019). 5
Orders denying motions for
preliminary injunction,
reconsideration, and
requests for evidentiary
hearing affirmed.
By the Court (Sacks,
Hershfang & Tan, JJ. 6),
Clerk
Entered: July 16, 2025.
5 We decline the defendant's request to award fees for time
spent working on this appeal.
6 The panelists are listed in order of seniority.
8