Opinion
FBTCV136034426S
03-24-2016
Beechmont Condominium Association, Inc. v. Medina Cecunjanin
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (NO. 115) AND DEFENDANT'S OBJECTION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (NO. 119)
Alfred J. Jennings, Jr., Judge Trial Referee.
This is an action by a condominium association to foreclose its lien upon a unit under the Common Interest Ownership Act, Conn. Gen. Stat. § § 47-200-47-295 (" CIOA") for unpaid common charges and assessments, interest, late fees and attorneys fees. The complaint alleges that the defendant has been the owner in possession of Unit A-103 at Beechmont Condominium since June 29, 2001; that the defendant's title is subject to the provisions of the Declaration of Condominium, By-Laws and Rules and Regulations; that the plaintiff's Declaration, By-Laws, Rules and Regulations provide for the assessment of common charges, special assessments, fines, late fees, finance charges, interest, costs of collection and attorneys fees; that the plaintiff claims an interest in the Premises by virtue of a lien under the Declaration and By-Laws and Connecticut General Statutes § 47-258 for nonpayment of charges including regular monthly common charges and special assessments, in the amount of $3, 249.22 as of April 5, 2013 plus additional common charges, special assessments, and late charges which will accrue until judgment, plus interest and attorneys fees; that, despite demand for payment tote plaintiff, no part of said charges has been paid. The Defendant has filed her Answer in which she admits ownership of the unit, but denies that she is in possession, and denies that plaintiff has a lien under the Declaration, By-laws, Rules and Regulations and Conn. Gen. Stat § 47-258 for nonpayment of common charges and assessments. The Answer further alleges that her Unit A-103 was destroyed by a fire in February of 2012 at no fault of the defendant and pleads two special defenses: (1) equitable estoppel from foreclosure of common charges due to plaintiff's unfair and inequitable conduct in that defendant is being billed for monthly common charges each month while she is receiving none of the services provided by plaintiff due to the destruction of her unit by fire; and (2) plaintiff's failure without justifiable excuse for untimely delay in rebuilding and restoring her unit in violation of Section 47-255(h)(1) of CIOA. There are also two counterclaims which mirror the allegations of the special defenses.
In another similar case brought by this plaintiff against another unit owner whose unit had been destroyed by the same 2012 fire, this court recently granted summary judgment for the plaintiff association over the objection of the owner of that unit on the ground of the Appellate Court's ruling in Coach Run Condominium, Inc. v Furniss, 136 Conn.App. 698, 705, 47 A.3d 413 (2012) that " special defenses and counterclaims will not lie in an action brought by a condominium association to foreclose a lien upon a unit owner's failure to pay common charges." Defendant's opposition to summary judgment in that case was premised on a claim that the assessments of common charges after the destruction of the unit were invalid because the unit " did not exist" after the fire. This court rejected that premise, and upheld the assessments. See, Beechmont Condominium Association, Inc. v. Hugh Thresher, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV 13-6034425S (January 25, 2016, Jennings, J.) . Mr. Thresher did file on February 10, 2016 a Motion to Reargue that decision, but, while that motion was under consideration by the court, the issue became moot when Beechwood Condominium Assoc., Inc. v. Thresher was withdrawn as to all defendants on March 14, 2016. Defendant Cecunjanin in this case was aware of the issues argued to the court in the Thresher case and admitted that a denial of summary judgment in Thresher would require a denial of summary judgment in this case, but that the granting of summary judgment in Thresher (which is what happened) would not control the outcome of summary judgment in this case because the defendant in this Cecunjanin case has raised additional issues of material fact going directly to the making, validity, and enforceability of the statutory liens to be foreclosed in this action. (Objection, fn. 1) The court agrees that the defense arguments in this case are more expansive than the " non-existence" objection in Thresher and will address those arguments on the merits.
Summary judgment is appropriate when " the pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. Miller v. United Technologies Corp. 233 Conn. 732. 744-45, 660 A.2d 810 (1995). " A material fact is a fact that will make a difference in the result of the case . . . [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute." Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 803, 842 A.2d 1134 (2004). Once met, the burden shifts to " the party opposing such a motion [to] provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Bednarz v. Eye Physicians of Central Connecticut, P.C. 287 Conn. 158, 169, 947 A.2d 291 (2008). When deciding a motion for summary judgment, the " trial court must view the evidence in the light most favorable to the nonmoving party." Bellemare v Wachovia Mortgage Corp., 284 Conn. 193, 198, 931 A.2d 916 (2007).
The September 8, 2015 affidavit of Winthrop E. Baum, president of the plaintiff association, submitted by the plaintiff in this case satisfies the plaintiff's obligation of showing the nonexistence of any material fact as to plaintiff's entitlement to a judgment of foreclosure. It establishes that Beechmont Condominium is a condominium common interest community declared and existing under the provisions of CIOA and that the plaintiff is the association of unit owners of Beechmont Condominium, having the power by statute and under the Declaration to enact budgets and to assess monthly common charges and special assessments, fines, interest, and late charges against unit owners at the condominium, which are statutory liens against the units which the association has the power to enforce " in like manner as a mortgage on real property." Conn Gen. Stat. (CIOA) § 47-258(j). The affidavit further establishes that the defendant Medina Cecunjanin is and has been at all relevant times the owner of Unit A-103 at Beechmont Condominium who has been assessed with common charges, interest and late fees unpaid since the since February 16, 2012, the balance of which came to $20, 102.53 as of September 4, 2015. Defendant argues that there is an issue of material fact presented with regard to the amount of common charges assessed. The Declaration of Condominium attached as an exhibit to the Baum affidavit states at Section 9.1 (" Allocated Interests") that " The Table showing Unit Numbers and their allocated interests is attached as Exhibit A-2. These interests have been calculated in accordance with the formulas set out in this Article IX. These formulas are to be used in reallocating interests if Units are added to the Common Interest Community." Section 9.2(b) identifies the formula for calculating each unit's share of liability for common expenses: " The percentage of liability for Common Expenses allocated to each Unit is based on the approximate relative floor area of each Unit as compared to the Floor area of all the Units in the Common Interest Community. For the purposes of this calculation, the floor areas of basements and attics are not to be counted." Table A-2 lists Unit A-103 as having approximately 613.7876 square feet and a 2.9265% of Liability for Common Expenses. This is the percentage established by the recorded Declaration based on the architectural plans when the condominium was formed in 1987 and neither party challenges its validity. Neither side has submitted any evidence that any percentage other than the 2.9265 percent was used is assessing common charges for Unit A-103 for each and every year before and after the 2012 fire. Defendant argues that since the unit and the building in which it was located were totally destroyed by fire, the unit for years after 2012 had zero floor area which should have resulted in assessments of zero after the fire. She argues that there is a genuine material issue of triable fact whether or not the Declaration by implications mandates a reassessment to of the share of liability for common expenses of a unit to zero percent during any period of time when the unit is totally destroyed. She notes that Section 9.1 mandates a formula reassessment " if Units are added to the Common Interest Community, " and Section 14.1 permits a reallocation by agreement when there is an adjustment by agreement of boundaries between units. Destruction by fire, she claims is " functionally no different than if units are added or consolidated for purposes of allocating Common Expenses fairly among unit owners."
It is established that " Because a [condominium] declaration operates in the nature of a contract, in that it establishes the parties rights and obligations, we apply the rules of contract construction to the interpretation of [the declaration]." Harbor Pointe, LLC v. Harbor Landing Condominium Association, Inc., 300 Conn. 254, 259, 14 A.3d 284 (2011).
In ascertaining the contractual rights and obligations of the parties we seek to effectuate their intent, which is derived from the language employed in the contract, taking into consideration the circumstances of the parties and the transaction . . . We accord the language employed in the contract a rational construction based on its common, natural and ordinary meaning and usage as applied to the subject matter of the contract . . . Where the language is unambiguous. We must give the contract effect according to its terms . . . Where the language is ambiguous, however, we must construe those ambiguities against the drafter . . . This approach corresponds with the general rule that any ambiguity in a declaration of condominium must be construed against the developer who authorized the declaration." (Citations and internal quotation marks omitted.) Canterbury Heights Condominium Association, Inc. v. Local Land Development LLC, 273 Conn. at 745-35, 873 A.2d 898 (2005).
In the court's view there is no ambiguity in the language of the declaration with regard to events mandating a reassessment of common expense liability. Reassessment is specifically mandated in the event of additional units being created or reallocation by agreement between adjoining unit owners. There is no provision for reallocation in the event of unit destruction. There could have been such a provision, but it is not there. It is not that the declaration ignores entirely the possibility of unit destruction. Article XXIII contains a detailed series of provisions relating to Damage to or Destruction of Property, including a requirement for prompt repair or replacement of insured property subject to three specific exceptions (which mirror the exceptions to Conn. Gen Stat. § 47-255(h)(1)); a provision the cost of repair or replacement in excess of insurance proceeds shall be a common expense; and a specific provision in Section 23.4(c) that " If the Unit Owners vote not to rebuild any Unit, that Unit's Allocated Interests are automatically reallocated on the vote as if the Unit had been condemned under subsection 7 of the Act [CIOA]" To imply, as defendant asks, a requirement that total destruction of a unit results in reassessment of its allocated interest for liability for common expenses to zero, one would have to ignore Section 23.4(c) of the Declaration in cases where the destroyed unit is not to be rebuilt, in violation of the rule of contract interpretation that " The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so, " Canterbury Heights, supra, at 735. The scheme of the Declaration, read as a whole, is that the allocated interests of a destroyed unit shall not be reduced because of the destruction, but, if the unit is not to be rebuilt, those allocated interests shall be reallocated proportionately among the remaining units. To imply a rule mandating automatic reduction of the allocated interest to zero at the time of destruction would amount to unwarranted redrafting of the Declaration by the finder of facts, and the reduction of the allocated percentages of plaintiff's unit and other destroyed units because of no useable floor area, would reduce the total percentages for the condominium as expressed in Table A-2 to less than 100% in violation of § 47-226(e) of CIOA. The unambiguous provisions of the Declaration with regard to assessment of common interest percentages are therefore not subject to implied modification and should be enforced as written.
The " Act" is defined is Section 1.1 of the Declaration as " Public Act 83-474 as revised by Public Act 84-472, as it may be amended from time to time. " Section 7 of Public Act 83-474 is codified in CIOA as Conn. Gen. Stat. § 47-206 (" Eminent Domain") which provides in subsection (a) that when a unit is taken by eminent domain, the award of compensation to the unit owner " shall include compensation to the unit owner for that unit and its allocated interests whether or not any common elements are acquired. On acquisition, unless the declaration otherwise provides, that unit's allocated interests are automatically reallocated to the remaining units in proportion to the respective allocated interests of those units before the taking . . ."
" When a complaint and supporting affidavits establish an undisputed prima facie case for a foreclosure action, a court must only determine whether [a] special defense is legally sufficient before granting summary judgment . . . Nevertheless, the opposing party only needs to demonstrate the applicability of one legally sufficient special defense in order to defeat a motion for summary judgment . . . [A movant's] motion for summary judgment should be denied when any defense presents significant fact issues that should be tried." (Citations omitted; internal quotation marks omitted.) U.S. Bank v. Bachelder, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV-09-66003388, (August 20, 2012, Martin, J.), Union Trust Company v Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996). The remaining inquiries in this case, then, are whether or not the defendant has raised at least one special defense that can be raised under the rule of Coach Run Condominium, Inc. v. Furniss, supra, and if so, whether that special defense is supported by undisputed facts which would bar plaintiff's Motion for Summary Judgment.
Although the plaintiff Baum's affidavit is narrowly drawn as a one-on-one foreclosure case for nonpayment of common charges, and does not even mention the fact that defendant's Unit A-103 had been totally destroyed by fire at the time she stopped paying her common charges, Defendant Medina Cecunjanin's affidavit of October 7, 2015 paints a much broader picture, attesting that her Unit A-103 was one of sixteen units of Beechmont Condominium located in a building at 3260 Main Street. The other units of the condominium were located in a separate building which was not damaged in the fire. The Declaration of Condominium attached as an exhibit to the affidavit shows that there are 26 units in all, 16 in the building at 3260 Main Street, and 10 in the other separate building. As the affidavit, states, the entire building at 3260 Main Street, including Unit A-103 was destroyed by fire on February 16, 2012 and had not been rebuilt as of the date of the affidavit. Considering the two affidavits conjunctively, then, the situation at the time of commencement of this foreclosure action was that 16 of the condo's 26 units (or 61.5%) of the units were totally destroyed by fire and yet the plaintiff association continued to assess common charge against all 26 units including the defendant's unit A-103 even though the destroyed units were obviously uninhabitable and the residents could no longer occupy them.
Defendant's First Special Defense of equitable estoppel is based on the argument that " The Defendant is not receiving any of the services provided by the plaintiff because [she] does not have [the] Unit to avail [her]self of those services, however the Plaintiff continues to charge [her] for common charges every month." (Special Defenses, para. 6.) The Second Special Defense is based on the allegations that " Connecticut General Statutes § 47-255(h)(1) requires common interest community associations to promptly repair or replace any portion [of] the common interest community which is damaged or destroyed unless the common interest community is terminated, repair or replacement would be illegal, or 80% of the unit owners, including every owner of a unit or assigned limited common element that will not be rebuilt, vote not to rebuild." (Special Defenses, para. 3) " To date, the Unit has not been rebuilt or restored, and remains in an unlivable condition." (Para. 4) " The Plaintiff has no justifiable excuse for the untimely delay in restoring the Defendant's Unit [seeing] as the common interest community, Beechwood Condominiums, has not been terminated, repair or replacement is not illegal, and eighty percent (80%) of the unit owners including the defendant have not voted to not rebuild." (Para. 5.) And " The Plaintiff's failure to comply with Connecticut General Statutes § 47-255(h)(1) and its act of levying common charges on a nonexistent unit were unfair and inequitable, and therefore the Plaintiff is inequitably estopped from enforcing the foreclosure of common charges." (Para. 7.)
Plaintiff urges the court to grant summary judgment on the ground that the defendant's special defenses and counterclaims are legally insufficient under the rule of Coach Run Condo, Inc. v. Furniss, supra, as pleaded in this case, and must be brought in a separate, independent action. Defendant responds that plaintiff interprets Coach Run Condo too broadly, and that the underlying reasoning of the opinion suggests that the special defenses in this case were not intended to be barred.
It must be noted that Coach Run Condo does not establish a substantive rule of legal sufficiency or insufficiency of special defenses in a common interest community association foreclosure for nonpayment of common charges. The case is a procedural decision which relegates special defenses and counterclaims in such cases to be brought as separate independent actions against the association. Defendant focuses on the Coach Run Condo court's citation of Conn. Ge. Stat. (CIOA) § 47-255(g) in support of its holding. That statute provides: " No unit owner may exempt himself from liability for payment of the common expenses by waiver of the use or enjoyment of any of the common expenses or by abandonment of the unit against which the assessments are made." Defendant then purports to distinguish this case from Coach Run Condo by pointing out that Ms. Cecunjanin has not at any time " abandoned" her Unit A-103, which was totally destroyed by a fire which was not caused by any fault of her own, and has not at any time " waived" the use of any of the common elements of Beechmont Condominium, where she is no longer able to reside because of the fire. The attempt to distinguish fails when the special defense at issue in Coach Run Condo. v. Furniss is considered. The defendant in that case had filed special defenses alleging that the plaintiff's failure to make needed repairs to the exterior walls and common area of the condominium had so severely reduced the value of her condominium unit as to make it unsaleable. Id. at 699. The trial court struck the special defenses and granted summary judgment for the plaintiff on liability. The Appellate Court affirmed, even though it appears clearly that the defendant had not abandoned her unit or waived the use or enjoyment of common elements. The Court's decision barring special defenses and counterclaims was not based entirely on the reference to § 47-257(g). The court also cited Conn. Gen. Stat. § 47-258 granting to condominium associations a statutory lien on a unit for any assessment attributable to that unit or fines imposed against its unit owner. The Appellate Court noted that " almost all of the judges of the Superior Court who have addressed this issue have held that special defenses and counterclaims will not lie in an action brought by a condominium association to foreclose a lien based on a unit owner's failure to pay common charges." (Citations omitted.) Id. 705. The court affirmed the striking of special defenses/counterclaims and the granting of summary judgment for the plaintiff:
Plaintiff cites one such independent action pending in this Judicial District brought against the association by the owner of a unit destroyed by the 2012 fire at Beechmont Condominium. See Rossman v. Beechmont, et al., Docket No. FBT CV15-6048724S.
Ruling in accord with this majority the trial court in the present case held that § § 47-257 and 258 manifest the legislature's intention that a duly constituted condominium association has an enforceable lien to assist its collection of common charges. The court reasoned that the legislature provided condominium associations with the ability to impose such a lien in order to protect the condominium's common financial interest in timely collection of anticipated revenues for the benefit of the community as a whole. That protection would be jeopardized if any condominium unit owner could withhold payment pending the resolution of individual complaints or disagreements regarding the nature and extent of services rendered by the condominium. We agree. 136 Conn.App. at 705.
The defendant argues that her withholding of common charges goes well beyond the " nature and extent" of common services rendered, but that she receives no services at all since her unit has been totally destroyed and she is no longer able to live at the condominium to access whatever services the association is still performing. It is true that Coach Run Condo was addressing only the withholding of common charges by an owner of a single unit, and did not address, nor has any other court in a reported decision addressed, a situation such as this where more than half the units of a residential condominium community have been totally destroyed through no fault of the unit owners, and have not been rebuilt now more than four years after the fire. The Appellate Court pointed out in Coach Run Condo at footnote 7 " As the [trial] court noted, its ruling did not leave the defendant without a remedy because any condominium unit owner may file an independent action to recover damages for negligence or other misconduct on the part of the condominium association." There may also be a remedy on appeal or through the legislature, but the existing precedent binding on this court supports the rejection of the special defenses and the granting of summary judgment for the plaintiff.
The defendant in Coach Run Condo, Deborah Furniss, had argued, as the defendant herein now argues, that the statutory language upon which the court relied does not support its ruling. The Court rejoined: " She does not, however, identify any provision of the General Statutes or in the documentation adopted by the plaintiff condominium association that either expressly, or by implication, confers upon her the right to raise such defenses to the plaintiff's collection of common charges." Id. 705.
Order
For the foregoing reasons, the Plaintiff's Motion for Summary Judgment is granted as to liability only, and the Defendant's Objection to Plaintiff's Motion for Summary Judgment is overruled.