Opinion
FBTCV136034425S
01-25-2016
Beechmont Condominium Association, Inc. v. Hugh Thresher et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (NO. 114) AND OBJECTION TO MOTION FOR SUMMARY JUDGMENT (NO. 117)
Alfred J. Jennings Jr., Judge Trial Referee.
Background
This is a common charge foreclosure action brought by the association of unit owners of Beechmont Condominium in Bridgeport against the defendant as owner of Unit A-101 for nonpayment of common charges, interest and late fees assessed against his unit. At the time suit was commenced the unpaid balance was $4, 934.08. The defendant has filed an Answer, Special Defenses and Counterclaim admitting that he became the owner of Unit A-101 on December 18, 2003 and is in possession thereof and otherwise denying or leaving the plaintiff to its proof, and alleging by way of special defenses: (1) that the plaintiff Association has failed to operate the association in compliance with the Common Interest Ownership Act (CIOA); (2) that the subject condominium unit was destroyed by fire in February of 2012 through no fault of the defendant; (3) that Section 47-255(h)(1) of CIOA requires the association to promptly repair 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; (4) that the Unit has not been rebuilt or restored and remains in unlivable condition; (5) that the Plaintiff has no justifiable excuse for the untimely delay in restoring Defendant's unit seeing that none of the three excusing factors of § 47-255(h)(1) are present; (6) that the Defendant is not receiving any of the Services provided by plaintiff, because he does not have the unit to avail himself of those services, however, the Plaintiff continues to charge him for common charges every month; and (7) The Plaintiff's failure to comply with § 47-255(h)(1) and its act of levying common charges on a nonexistent unit were unfair and inequitable, and therefore Plaintiff is equitably estopped from enforcing the foreclosure of common charges. The Defendant asserts a two-count counterclaim based on the same factual allegations as his Special Defenses, and claims damages on theories of CIOA violation (First Count), and Breach of Implied Covenant of Good Faith and Fair Dealing (Second Count). The Plaintiff, in reply, admits that there was a fire on or about February 16, 2012 at the building housing the subject unit rendering the unit uninhabitable and the building in need of demolition and complete replacement, that the building housing the subject unit has not been rebuilt due to insufficient proceeds to replace the building by virtue of a dispute with the insurer over the subject insurance policy that insured the residential community at the time of the fire that is the subject of litigation pending in this Court, and states that, while Article XXIII of Beechmont's declaration requires the cost of replacement in excess of insurance proceeds to be a Common Expense, several unit owners, including the Defendant, have failed to pay their monthly common charges let alone additional common charges and/or assessments that would be needed to replace the building. The Plaintiff otherwise denies the allegations of the Special Defenses and the liability allegations of the Counterclaim.
The Answer, Special Defenses, and Counterclaim were filed on October 4, 2014. Since that date the Plaintiff has filed on August 20, 2105 an Affidavit in Further Support of Plaintiff's Motion for Summary Judgment in which Winthrop E. Baum, president of the plaintiff association, reports that the insurance litigation settled in or about February 2015, resulting in a total of $1.9 million to the Plaintiff for the rebuild. While a shortfall may still exist, the Association has commenced activity leading to a rebuild of the destroyed structure including engineering work which has assessed the foundation as probably useable for the rebuild and acquisition of the original plans and hiring of an architect to review them and update accordingly for compliance with current building code and other requirements.
Now before the court is the Plaintiff's Motion for Summary Judgment as to liability dated July 17, 2015, accompanied by a supporting Memorandum of Law and affidavits of Winthrop E. Baum as President of the plaintiff association dated July 14, 2015, and August 20, 2015 (see footnote 1). The defendant has filed an Objection to Plaintiff's Motion for Summary Judgment dated August 19, 2015, accompanied by a Memorandum of law and defendant's Affidavit in Support of Objection to Summary Judgment of that date in which he attests that his Unit and building in which the Unit was located were destroyed by the fire in February 2012 rendering them uninhabitable, that the Plaintiff has represented to him that insurance proceeds would be used to repair or rebuild the building and to cover the common charges for the owners whose units were destroyed by fire, that the Plaintiff has not taken any action to repair or rebuild the destroyed building, that the plaintiff has not communicated with him regarding the outcome of any insurance settlement, and that " [t]he Plaintiff continues to charge me common charges and assessments despite the non-existence of my unit and the common elements from the building in which my unit was housed. Mr. Baums' August 20 affidavit, referenced above, denies that the Plaintiff has not taken any action to repair or rebuild, referencing the insurance litigation, its settlement, and the contracts which have already been entered into preparatory to actual reconstruction. That affidavit further states that since the fire the Association has continued to incur expenses associated with the destroyed building including preservation of the foundation, maintenance of the parking deck and land adjoining the destroyed building, and payment of a significant increase in fire insurance premiums as a result of the fire. Further, Mr. Baum denies that any person with authority to speak for the plaintiff ever promised unit owners that insurance proceeds would cover common charges of unit owners displaced by the fire, and states that the terms of the insurance settlement were communicated at a special meeting of unit owners duly noticed on May 19, 2015 which the plaintiff did not attend, although he was provided with a copy of the minutes of that meeting.
Discussion
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).
First of all, he defendant's claims in his opposing affidavit that the plaintiff represented to him that insurance money would be used to cover common charges for owners of destroyed units and that he was not advised of the terms of the insurance settlement are disregarded as wholly irrelevant. Although stated in defendant's affidavit, they are not pleaded as special defense or counterclaim. Furthermore the allegation about insurance proceeds being used to cover common charges is presented as an inadmissible hearsay statement made to the defendant by another unit owner without any showing that the other unit owner was an officer or director of the plaintiff Association or otherwise authorized to speak on behalf of the Association. That hearsay statement fails the test of Practice Book § 17-46 for use in an affidavit supporting or opposing summary judgment.
Section 17-46 provides, in part, " Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."
The Winthrop Baum affidavit of July 14, 2015 and the declaration of Condominium attached thereto establish beyond any issue of fact that Beechmont Condominium is a condominium common interest community declared and existing under the provisions of the Connecticut Common Interest Ownership Act, Conn. Gen. Stat. § § 47-200 - 47-295, and 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 other 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." The affidavit further established that the defendant was and is the owner of Unit A-101 at Beechmont Condominium who has been assessed with common charges of that Unit which have not been paid since September 2011. The balance of unpaid common charges and late fees with interest due and owing to the plaintiff as of July 14, 2015 was $14, 069, plus continuing accruals on a monthly basis. The plaintiff has therefore established a prima facie case for a condominium common charge foreclosure action.
September 2011 was approximately five months prior to the fire in February 2012 which destroyed Unit A-101 and the building in which it was located.
" 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 inquiry in this case, then, is whether or not the defendant Hugh Thresher has raised at least one legally sufficient special defense by undisputed facts would bar plaintiff's Motion for Summary Judgment. The court concludes that, aside from the irrelevant, unpleaded issues mentioned above, there are no disputed issues of material fact relating to the specifications of equitable estoppel pleaded by way of special defense. The issue between the parties comes down to a difference of opinion on a point of law, namely the legal effect of the Association's admitted delay in rebuilding as required by CIOA while it continues to assess common charges and particularly whether or not that delay and continued accrual of common charges can be raised as a special defense to this foreclosure action. The Plaintiff's position is that Connecticut law does not permit any special defenses to a condominium common charge foreclosure, citing Tyler Ridge Estates Condo. Ass 'n v. Nelson, Superior Court, Judicial District New Britain at New Britain, Docket No. CV09-5011225S, *12 (Sheridan, J.) (Conn.Super.Ct. July 20, 2012) (" Under Connecticut law, validly leveled common charges constitute independent obligations that are not subject to any claims of set-off, counterclaim, or special defense.") The special defense at issue in that case was an allegation that the association was in violation of its statutory duty to repair and maintain the common elements (the roof). Tyler Ridge cites Coach Run Condo., Inc. v. Furniss, 136 Conn.App. 698, 705, 47 A.3d 413 (2012) where the Appellate Court has expressly affirmed that " special defenses and counterclaims will not lie in an action brought by a condominium association to foreclose a lien based upon a unit owner's failure to pay common charges." The special defense at issue in Coach Run was that the association's failure to make needed repairs to the exterior walls and common areas of the condominium had so severely reduced the value of defendant's unit as to make it unsaleable." The Appellate Court affirmed the striking of that defense.
See also Congress Street Condo. Assn. v. Anderson, 132 Conn.App. 536, 541-44, 33 A.3d 274 (2011) (holding that pleading of special defenses and counterclaims, while precluded in actions to foreclose statutory liens based on nonpayment of common charges, is permissible in actions to foreclose statutory liens based on nonpayment of fines). " General Statutes § 47-257 makes it clear that common charges must be paid by the unit owners, with no excuses, evidencing a clear legislative intent favoring collectability of a condominium association's lien, " Oaks Condo. Assn. v. Lemay, Superior Court, Judicial District of New Britain, Docket No. CV95-0466793S, (August 7, 1997, Holzberg, J.) (citing Hudson Housing Condo. Assn. v. Brooks, 223 Conn. 610, 611 A.2d 862 (1992). See also Villa Sol D'or Assn., Inc. v. Surace, Superior Court, Judicial District of Waterbury at Waterbury, Docket No. CV98-010145061S (West, J.), (Conn.Super.Ct. July 8, 1998) where the court granted a motion to strike special defenses that the condominium association had failed to repair the defendant's unit and had increased common assessment charges without an explanation of how the additional money would be used. The court said:
CIOA at Conn. Gen. Stat. § 47-257(g) provides: " No unit owner may exempt himself from liability from payment pf the common expenses by waiver of the use or enjoyment of any of the common elements or by abandonment of the unit against which the assessments are made."
[S]everal Superior Courts have held that as a matter of law, a validly levied common charge cannot be the subject of a special defense because it is clear that the condominium unit owners are liable for common charges pursuant to the Common Interest Ownership Act. *4
[By special defenses to condominium common charge foreclosure] the defendants seek to avoid their fair share of the expense of the condominium operation because of their alleged grievances. Such action jeopardizes the entire community. If the defendants wish to pursue their grievances against the board, it must be done in a separate action, not by refusal to pay their common charge which is directed against the other unit owner's health and welfare all of whom are entitled to having the budget funded by all the unit owners. (Citation omitted.) *6, 7.
Defendant cites Colonial Court Homeowners' Association v. Cole, Superior Court, Docket No. CV96-0560458 (October 11, 1996, Saffer, J.), 1996 WL 614813, at *1 (Conn.Super.Ct), where the court denied a motion to strike the special defense that the Association " failed to comply with its obligation pursuant to the condo documents with regard to maintenance to property", saying " If the services have not been rendered for which the common charges are imposed, an individual unit owner can interpose that defense to an action brought by the association to foreclose on the basis of unpaid charges." (*3). The holding of Colonial Court v. Cole, is contrary to the majority of Superior Court decisions on this subject and was decided under the Condominium Act, the predecessor to CIOA, sixteen years before the Appellate Court ruled to the contrary in Coach Run Condo., Inc. v. Furniss, supra . This court declines to follow Colonial Court .
Defendant attempts to distinguish Coach Run Condo and the earlier majority Superior Court decisions by arguing that the assessments of common charges after the fire which destroyed the building containing defendant's unit were invalid because the unit " did not exist" when those assessments were made. This argument, even if valid, would not deprive the plaintiff its requested summary judgment as to liability since it is undisputed that defendant Thresher had stopped paying his common charges five months before the fire occurred. (See fn. 3 and accompanying text.) But the argument fails in any event. There is no evidence that the legal existence of Unit A-101 terminated upon the physical destruction of the building. There is no evidence that the Declaration of Beechmont Condominium was amended after the fire to reduce the number of units or to terminate Unit A-101. There is nothing in CIOA which provides that a unit physically destroyed by fire or otherwise ceases to exist. To the contrary CIOA provides in Section 47-255(h)(1) that " Any portion of the common interest community for which insurance is required under thus section which is damaged or destroyed shall be repaired or replaced promptly . . ." which clearly implies a continuing existence as the same " portion of the common interest community" as prior to the destruction. The foundation of Unit A-101's building and the airspace above it have remained in place. There is nothing in CIOA which converts that space to part of the common elements or to a development area on which new units must be built. It is Unit A-101 (and the other destroyed units) which must be re paired or re placed.
The same authority which invalidates special defenses to a condominium common charge foreclosure also applies to counterclaims. " Special Defenses and counterclaims will not lie in an action brought by a condominium association to foreclose a lien based upon a unit owner's failure to pay common charges." (Emphasis added.) Coach Run Condo, Inc. v. Furniss, supra, 136 Conn.App. at 705.
Order
For the foregoing reasons, Plaintiff's Motion for Summary Judgment as to liability is granted, and Defendant's Objection to Plaintiff's Motion for Summary Judgment is overruled.