Twin Oaks Condominium Asso. v. Jones

Full title: TWIN OAKS CONDOMINIUM ASSOCIATION, INC., D/B/A IMAGINEER'S, LLC v. RODVALD…

Court: Connecticut Superior Court Judicial District of Hartford at Hartford

Date published: Jan 22, 2010

2010 Ct. Sup. 3408 (Conn. Super. Ct. 2010)

Opinion

No. HHD CV-044004140

January 22, 2010

MEMORANDUM OF DECISION RE ACTION IN DAMAGES

BENTIVEGNA, J.

STATEMENT OF CASE

This is a dispute between a condominium association, Twin Oaks Condominium Association, Inc., d/b/a Imagineer's, LLC (association) and one of the unit owners, Rodvald E. Jones. Jones' condominium unit is known as 102 Oakwood Avenue, Unit B4, West Hartford, Connecticut.

On October 18, 2004, the association filed a foreclosure action against Jones for delinquent common area charges. On August 15, 2008, Jones filed a seven-count counterclaim against the association alleging claims arising from breach of contract, violation of the Connecticut Common Interest Ownership Act, General Statutes § 47-200 et seq., violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., statutory theft, breach of the implied covenant of good faith and fair dealing, conversion, and negligence. On or about February 10, 2009, Twin Oaks withdrew the foreclosure action after receiving a payment in excess of twenty thousand dollars ($20,000) covering the alleged delinquent common charges, including penalties, interests and attorney fees.

The last post-trial memorandum of law, Jones' reply brief, was filed on December 3, 2009.

II FINDINGS OF FACT

The following facts were proved at trial by a fair preponderance of the evidence.¹

1 "The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . ." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . It is the quintessential function of the fact finder to reject or accept certain evidence . . ." (Internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded their testimony . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981).
The trial court's function as the fact finder "is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) In re Christine F., 6 Conn.App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 770 (1986). "[T]riers of fact must often rely on circumstantial evidence and draw inferences from it . . . Proof of a material fact by inference need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact." (Citation omitted; internal quotation marks omitted.) Coville v. Liberty Mutual Ins. Co., 57 Conn.App. 275, 285, 748 A.2d 875, cert. granted on other grounds by 253 Conn. 919, 755 A.2d 213 (2000).
"While a plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it . . . The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint." (Citation omitted; Internal quotation marks omitted.) Gulycz v. Stop Shop Co., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992). The standard of proof, a fair preponderance of the evidence, is "properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).

Twin Oaks is a Connecticut non-stock corporation with a board of directors. Imagineers, LLC (Imagineers) is a real estate management company the association hired to oversee the maintenance, repairs, replacements, upkeep and general management of the common elements of Twin Oaks Condominiums. During the period in question, two employees of Imagineers acted as property manager for the complex. The property manager acts as the liaison between the board of directors and the unit owners at Twin Oaks. He is also responsible for keeping the association's records, managing the complex on a day-to-day basis, budgeting and financial planning. Art Boothby was property manager at Twin Oaks Condominiums during the period in question until about 2005. Peter Hinman succeeded Boothby and is the current property manager.

On or about July 6, 1999, Jones acquired his unit by entering into a contract with the association. The association is governed by way of the Declaration of Twin Oaks Condominiums (Declaration), the Bylaws of Twin Oaks Condominiums (Bylaws), and the Rules of Twin Oaks Association, Inc. (Rules), as well as the Connecticut Common Interest Ownership Act (Act). Jones is a shareholder with a security interest in the common interest community.

The executive board is the board of directors of the association (board). Declaration, § 1.15. The association's board has specific powers regarding fees. Bylaws, § 2.2 provides in relevant part: "The Executive Board shall have, subject to the limitations contained in the Declaration and the Act, the powers and duties necessary for the administration of the affairs of the Association and of the Common Interest Community which shall include, but not be limited to, the following: . . . (l) impose and receive payments, fees or charges for the use, rental or operation of the Common Elements, other than Limited Common Elements described in Subsections (2) and (4) of Section 47-221 of the Act, and for services provided to Unit Owners; . . . (m) impose charges or interest or both for late payment of assessments and, after Notice and Hearing, levy reasonable fines for violations of the Declaration, Bylaws, Rules and regulations of the Association."

The Bylaws further provide: "By resolution, following Notice and Hearing, the Executive Board may levy a fine of up to $25 per day for each day that a violation of the Documents or Rules persists after such Notice and Hearing, but such amount shall not exceed that amount necessary to insure compliance with the rule or order of the Executive Board." Bylaws, § 5.2.

The association is responsible for the common elements of the complex. Under § 6.1 of the Declaration, "[t]he Association shall maintain, repair and replace all of the Common Elements, except the portions of the Limited Common Elements which are required by this Declaration to be maintained, repaired or replaced by the Unit Owners." The association's powers and duties include: "regulate the use, maintenance, repair, replacement and modification of the Common Elements." Bylaws, § 2.2(h). The common elements are "[a]ll portions of the Common Interest Community other than the Units." Declaration, § 1.5 — Common Elements. If a repair is made within the confines of a unit, however, the general rule of thumb is that the unit owner is responsible for the repair.

The association's property manager acts as an agent of the board. Section 2.5 of the Bylaws provides: "The Executive Board may employ a manager for the Common Interest Community at a compensation established by the Executive Board, to perform such duties and services as the Executive Board shall authorize. The Executive Board may delegate to the manager only the powers granted to the Executive Board by these Bylaws under Subdivisions 2.2(c), (e), (g) and (h). Licenses, concessions and contracts may be executed by the manager pursuant to specific resolutions of the Executive Board, and to fulfill the requirement of the budget." The property manager plays an integral part in the budget process. The property manager develops a proposed budget and submits it to the board for approval. After the board makes any revisions and approves the budget, the budget is put to a vote of the members at the annual meeting. The members can defeat the budget by a vote of 51 percent. The property manager has an obvious interest in the collection of common charges.

The Bylaws provide for regular meetings of the unit owners. "Annual meetings of Unit Owners shall be held on the first Monday in March. At such meeting, the Directors shall be elected by ballot of the Unit Owners, in accordance with the provisions of Article II. The Unit Owners may transact other business at such meetings as may properly come before them." Bylaws, § 3.1 — Annual Meeting. Between 2001 and 2005, annual meetings were not always held. When there was an annual meeting, it was not held before October 1, the beginning of the fiscal year.

The association owes unit owners a duty of care. Under § 2.3 of the Bylaws, "[i]n the performance of their duties, the officers and Directors of the Executive Board are required to exercise the care required of fiduciaries of the Unit Owners, if appointed by the Declarant, and ordinary and reasonable care if elected by the Unit Owners." "The Association shall be responsible for damage to Units caused intentionally, negligently or by its failure to maintain, repair or make replacements to the Common Elements." Declaration, § 6.5.

"Common Expenses shall include; (a) expenses of administrative, maintenance, and repair or replacement of the Common Elements; (b) expenses declared to be Common Expenses by the Documents or the Act; (c) expenses agreed upon as Common Expenses by the Association; and (d) such reserves as may be established by the Association, whether held in trust or by the Association, for repair, replacement or addition to the Common Elements or any other real or personal property acquired or held by the Association." Declaration, § 19.1. Common expenses are assessed against each of the unit owners. See Declaration, § 19.2.

Unit owners are required to pay common charges on a monthly basis. "All Common Expenses assessed under Sections 19.2 and 19.3 shall be due and payable monthly." Declaration, § 19.8. Twin Oaks levies a monthly surcharge or condominium fee that Imagineers collects on its behalf. The purpose of the monthly surcharge is for general upkeep of the Condominium complex. The association has the power to take action against unit owners who are delinquent in paying common fees and charges. Under § 19.9 of the Declaration, "[i]n the event of default for a period of ten (10) days by any Unit Owner in the payment of any Common Expense assessment levied against his or her Unit, the Executive Board shall have the right, after Notice and Hearing, to declare all unpaid assessments for the pertinent fiscal year to be immediately due and payable."

Under General Statutes § 47-257(g), "[n]o 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 elements or by abandonment of the unit against which the assessments are made." Section 19.11 of the Declaration tracks the statutory language and provides: "No Unit Owner may exempt himself or herself from liability for payment of the Common Expenses by waiver of the use or enjoyment of the Common Elements or by abandonment of the Unit against which the assessments are made."

The association has parking restrictions that apply to all unit owners. "Vehicles may not be parked in such manner as to block access to garages, carports, fire hydrants, sidewalks running perpendicular to drives, pedestrian crossing areas, designated fire lanes, or clear two lane passage by vehicles on roads and drives. Vehicles in violation will be towed after reasonable efforts to contact the person, Unit Owner or occupant to whom the vehicle is registered. In addition, a $25 per day fine may be levied against the person, Unit Owner or occupant to whom the vehicle is registered, following Notice and Hearing, for the period that the vehicle violates these rules, unless, at such hearing good and valid reasons are given for such violation." Rules, § 6.7.

The Declaration provides for notice and hearing before certain action may be taken. "Whenever the Documents require that an action be taken after `Notice and Hearing,' the following procedure shall be observed: The party proposing to take the action (e.g., the Executive Board, a committee, an officer, the manager, etc.) shall give written notice of the proposed action to all Unit Owners or occupants of Units whose interests would be significantly affected by the proposed action. The notice shall include a general statement of the proposed action and the date, time and place of the hearing. At the hearing, the affected person shall have the right, personally or by a representative, to give testimony orally, in writing, or both (as specified in the notice), subject to reasonable rules of procedure established by the party conducting the meeting to assure a prompt and orderly resolution of the issues. Such evidence shall be considered in making the decision but shall not bind the decision makers. The affected Persons shall be notified of the decision in the same manner in which notice of the meeting was given." Declaration, § 24.2. An appeal process is provided for in the declaration. An aggrieved unit owner has a right to appeal. "Any Person having a Right of Notice and Hearing shall have the right to appeal to the Executive Board from a decision of persons other than the Executive Board by filing a written notice of appeal with the Executive Board within ten (10) days after being notified of the decision. The Executive Board shall conduct a hearing within thirty (30) days, giving the same notice and observing the same procedures as were required for the original meeting." Declaration, § 24.3.

In his seven-count counterclaim, dated August 14, 2008, Jones requests damages relating to several issues with the association: (A) lack of heat, (B) foreclosure action, (C) management issues, (D) failure to adequately maintain the roof of the building, (E) lack of parking improper towing, (F) rodents pests, (G) security, and (H) inadequate snow removal.

A Lack of Heat

In early November 2003, Jones experienced heating problems in his unit. He had previously experienced lack of heat and had complained to Boothby. Boothby had a reputation for being very difficult to deal with and was confrontational when contacted about problems at the complex. The lack of heat around this time was not just confined to Jones' unit but also affected other units in the building.

In mid-November 2003, Jones called the management company to complain about the lack of heat. After Jones' call, MAREC Heating Air Conditioning, Inc. (MAREC) was contacted and came to his unit. MAREC is a local heating and cooling company that did work on the heating and cooling systems at the Twin Oaks complex. Although the association had a long-standing relationship with MAREC, the association apparently did not have a contract with MAREC to maintain the heating system. MAREC was called as needed.

Two MAREC technicians, one who was an apprentice trainee, came to Jones' unit on or about November 17, 2003. MAREC's records indicate that the service call was for no heat. The technicians were in the building for about two to three hours, going back and forth between the basement and Jones' second floor unit trying to restore heat. The majority of the time was spent working in the basement. They ultimately thought that the lack of heat was caused by Jones' heating valve/thermostat, which was replaced at a cost of $555.86. Jones paid MAREC's bill believing that the heating problem was caused by a malfunction of his unit's heating valve/thermostat that was his responsibility to maintain.

During this period, other unit owners also were experiencing heating problems, including Michelle Shephard. Shephard testified that she also paid MAREC to replace the heating valve/thermostat in her unit. She was told that lack of heat was caused by her unit's heating valve/thermostat.

A few days after the heating valve/thermostat was replaced, Jones again experienced no heat in his unit. MAREC was contacted and came out to work on the heating system. Over the next few months, MAREC responded to several service calls at 102 Twin Oaks for complaints of no heat/lack of heat, check burner and evaluate underground heating system.

At some point, Jones spoke with one of MAREC's heating technicians and discovered that MAREC was working on the common element heating system, which the association was responsible to maintain. Jones contacted the property manager's office to request reimbursement for the MAREC bill and spoke with Boothby's secretary, Joyce Moody. Jones believed he was entitled to reimbursement because the heating problems were caused by the common element heating system. Moody directed Jones to contact Boothby to request reimbursement of the MAREC bill.

Jones was not able to reach Boothby by phone to discuss reimbursement. In late November 2003, Jones sent Boothby the first in a series of three letters seeking reimbursement for the MAREC bill. After receiving no response, Jones sent a second letter on or about December 22, 2003. When no response was received, Jones sent a third letter by certified mail on or about February 27, 2004. At some point, Jones indicated that he was going to withhold the amount in monthly fees if he was not reimbursed for the MAREC bill. Boothby never responded to Jones' requests for reimbursement and no reimbursement was ever forthcoming.

Jones' claim that heating problems in his unit during this period were caused by a common element heating system is supported by the evidence. In or around March 2004, unit owners were informed that the lack of heat issues over the past several months were caused by the common element heating system. There were rusted heating pipes in the basement of the building as well as the boiler. The heating issues were not attributable to the individual units. The association paid MAREC approximately $9,000 for service on the heating system.

Prior to March 2004, Jones had consistently paid his monthly common fees and charges. He paid electronically through his bank. When the monthly fees increased, Jones increased the monthly electronic payment amount.

Jones grew increasingly frustrated with Boothby's lack of response to his request for reimbursement. In March 2004, Jones decided, unilaterally, to withhold his monthly fees in the amount totaling $555.86 to offset the costs associated with the heating repairs done on his unit by MAREC in November 2003. Jones made this decision based on the information he received that the heating problems were caused by the common elements. Jones withheld the monthly fee for March 2004, and April 2004, and then made a partial payment in May 2004. After he withheld fees totaling $555.86, Jones resumed paying his monthly fees to the association. He then made full payments every month until his payment was rejected by the association in November 2005.

Jones never heard directly from Boothby or the association regarding his withholding fees over the reimbursement issue. Instead, the association tacked onto the fees due from Jones an amount equal to the $555.86 withholding as well as late fees. Jones believes that he was charged the fees in error.

Jones knew when he bought the unit that he had to comply with the Declaration, Bylaws and Rules of the association. Jones understood that he was obligated to pay the monthly fees and any special assessments, but he did not agree that he was a member of the association due to being a unit owner. He admitted that he withheld the monthly fees based on the association's failure to reimburse him for the November 2003 MAREC bill.

Although Jones does not recognize that he is a member of the association, § 1.3 of the Declaration provides: "Twin Oaks Association, Inc., a non-stock corporation organized under the laws of the State of Connecticut. It is the Association of Unit Owners pursuant to 47-243 of the Act." General Statutes § 47-243 provides in relevant part: "The membership of the association at all times shall consist exclusively of all unit owners . . ." As a unit owner, Jones is a member of the association of unit owners.

Jones was questioned regarding his obligations as a unit owner. Under General Statutes § 47-257(g), "[n]o 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 elements or by abandonment of the unit against which the assessments are made." This statutory language is also included in Section 19.11 of the Declaration. Jones tried to distinguish his situation on the ground that he withheld the monthly fees because the association was required to reimburse him for the MAREC bill. When questioned why he did not request a hearing before the board, Jones testified that no one was responding to his complaints and the association or board was not having regular meetings.

B Foreclosure Action

In August 2004, the association initiated a collection action against Jones based on the withheld common charges.

Property manager Hinman testified that the association has a collection policy for late payments. A late statement is issued after fifteen days. After sixty days, late fees are assessed and a demand letter is issued. After ninety days, the matter is turned over to a collection agency. Once a unit owner is referred for collection, the property manager rejects the payment and forwards it to the collection attorney. The delinquency report is part of the financial information that the property manager provides to the board for its monthly meeting.

Under the Declaration, a unit owner is supposed to be given notice and hearing before legal action is initiated. The Declaration does not state that the unit owner has to request notice and hearing prior to commencing the foreclosure action. There was no evidence that Jones was provided any notice and hearing before the collection action was initiated.

On August 20, 2004, Imagineers wrote to its collection attorney, Howard Rosenberg of Rosenberg Rosenberg, P.C., requesting that he start collection proceedings against Jones for the delinquency in his monthly condominium charges. Jones received a copy of the letter and contacted the law firm. Jones was told that his delinquency was now approximately $1,016.76. Jones told them that he did not believe that he was delinquent. His efforts to resolve the matter proved unsuccessful, and he was informed that if the alleged delinquency payments were not received along with interests and attorney fees by a date certain legal actions would be taken against him by the association to recover the amount owed.

Another owner, Michelle Shephard, was also threatened with foreclosure for failing to pay her condo fees. At the time, she was unable to work due to health problems requiring surgery. She notified Boothby about her situation, but the collection attorney still sent her a letter indicating that a foreclosure action would be started if payments were not made. Shephard never received a letter from the board regarding the late payment of fees, nor did she receive any notice and hearing by the board.

On or about November 1, 2004, the association brought a foreclosure action against Jones and his mortgage company, First National Corporation, based on the allegedly delinquent common charges.

After taking over as property manager from Boothby, on November 9, 2006, Hinman wrote a letter to Attorney Rosenberg requesting that he pursue collection proceedings against Jones for a delinquent balance, which had by then increased to $7,888.98. The fax cover sheet contained the following message: "This account was in legal before. Is your file still open?" Hinman did not recall the board directing him to start a foreclosure action, but he was following the policy the board had in place, which was to pursue collection when a unit owner was delinquent for ninety days. According to Hinman, once a matter went to collection, payments made to the association were rejected. At that point, the matter was between the delinquent party and the collection attorney.

The account history report shows that Jones was charged late fees in almost every month from January 1, 2006, to January 1, 2009. The association imposed a twenty-five dollar late fee if payment was not received by the fifteenth of the month. Jones testified that he never refused to pay the monthly fees from 2004 to 2009. Jones continued to tender payments to Imagineers for his monthly common area charges. Most of the payments tendered were refused by Imagineers. The common area charges payments were automatically made from Jones' bank account with Fleet Bank, which later became Bank of America. The report indicated that checks were received and credited to the account on the following dates: October 15, 2006 for $251.11; May 15, 2007 for $318.25; and August 22, 2008 for $327.27.

When the foreclosure case was brought, Jones was not given an accounting of how much the association said he owed. The account history indicates that Jones had a delinquent balance of $20,692.32 as of January 1, 2009. Three years earlier, the delinquent balance was only $4,623.60. Jones was charged late fees even though he continued to tender monthly fees and after a lien was placed on his unit.

As holder of Jones' mortgage, CitiMortgage was also a party in the foreclosure action. Jones was not privy to communication between CitiMortgage and the association that eventually led to CitiMortgage paying off his delinquency in the amount of $20,692.32. The payment made by CitiMortgage included late fee charges, and attorneys fees. The association's foreclosure action against Jones was withdrawn after CitiMortgage paid the delinquent balance attributed to Jones of $20,692.32. Jones did not understand that CitiMortgage had a right to tender the delinquency to avoid foreclosure. Since January 21, 2009, that amount, $20,692.32, has been added to Jones' mortgage balance, which has now increased from approximately $21,000 to $42,000. Jones is currently paying his monthly fees to the association.

C Management Issues

Jones testified that there were several management issues during Boothby's tenure as property manager. Jones describes his experience living at the complex during this period as being treated with abject neglect. One example was the lack of regular board and association annual meetings between 2001 and 2005.

Jones also raised concerns regarding the decrease in the association's reserves during Boothby's tenure. Between 2003 and 2005, the association's reserves decreased from $103,000 to $36,300. At some point, Jones made a request to Boothby to review the association's financial record. Unit owners have the right to review the association's financial rewards. Boothby, however, did not respond to the request. At the association's annual meeting on September 20, 2006, a motion passed to look into hiring legal counsel on whether there was any recourse to get money back from Imagineers for the period that Boothby was property manager. There is no evidence that the board took any action to pursue this issue. Hinman testified that he was never directed by the board to take any action regarding the motion. Hinman also testified regarding the association's reserves. The association's books are subject to an annual independent audit. The audits have not turned up any misappropriation of funds. The association has also not been subject to a criminal investigation regarding any misappropriation of funds. From October 2006, to August 2008, the monthly fee increased from $251.11 to $318.25 to $327.27.

After Hinman took over as property manager, the management of the complex improved noticeably but there were still some issues, including Jones being wrongly charged for repairs. In March 2007, Jones was charged $1,002.64 for damage caused to the unit below based on an alleged plumbing problem in Jones' unit. On April 16, 2007, Jones sent a letter to Hinman contesting the charges. He argued that he was not responsible for the repairs, which were mostly cosmetic. On April 20, 2007, Hinman sent a letter of apology to Jones indicating that the repairs were the association's responsibility and that Jones account had been credited the full amount of $1,002.64. At some point, Jones made a request to Hinman to review the association's financial records. Hinman provide Jones with some, but not all, of the information he requested.

D Failure to adequately maintain the roof of the building

When Jones purchased the condo in August 1999, there was no water damage to the ceiling or walls in his unit. He later started noticing water damage in the unit and notified Boothby. When Jones finally spoke with Boothby, Boothby said that any damage within his unit was his problem and not the association's issue. Jones did not request a hearing with the board regarding the roof leakage issue.

Problems with the building's roof were addressed at the association's 2001 annual meeting. At the October 4, 2001 meeting, Boothby indicated that the roof to Bldg. #102 needed to be replaced. Jones' unit is located on the second floor of that building. Under the Declaration, the roof is considered a common element, which the association is responsible to maintain. Declaration, § 6.1. The cost of the new roof was estimated at approximately $50,000. There were concerns about whether the association had sufficient funds to pay for the roof repairs.

Jones testified that the association acted negligently by not repairing the roof at that time. The roof was not actually replaced until late 2005, after Hinman had become property manager. In order to pay for the roof repairs for Bldg. #102, the association imposed a special assessment of $50 per unit per month. At trial, Hinman admitted that the roof repairs were not necessarily done promptly and that the association was responsible for damage to a unit caused by a leaking roof. Jones believes that if the roof was replaced closer to 2001, when the association had sufficient resources, there would not have been a need for the $50 special assessment.

Since the roof was replaced on Bldg. #102, two other buildings in the complex have had their roofs replaced and there are active discussions concerning another building.

Even after the roof was replaced in his building, Jones still experienced water damage in his unit from the roof leaking. Over the years, Jones spent approximately $4,000 making repairs to the ceiling. Jones was told that it would cost between $10,000 to $12,000 to fully repair his ceiling.

Jones believes that the water damage has also decreased the resale value of his unit. His unit has approximately 1,000 square feet with two bedrooms and one bathroom. He estimates the value at $110,000.00 if sold as is, and between $150,000 to $175,000 if repairs are made. Jones did not offer any written documentation to support his estimates as to the repair cost or the resale value. The unit has not been appraised recently.

Some of Jones' personal property, stored in the basement, has also suffered water damage. Water leaked into the basement storage area and caused approximately $1,000 in damage to Jones' property. Although Jones requested reimbursement from Hinman, the association has not reimbursed Jones. Jones later found out that the association received some payment for the water damage. He did not provide any documentation regarding the allegedly damaged property.

E Lack of Parking Improper Towing

While Jones has lived at the complex, there have been issues regarding parking and towing. Under the rules of the association, a unit owner is required to park in his or her assigned parking space. The Rules provide in relevant part that: "vehicles may not be parked in such manner as to block access to garages, carports, fire hydrants, sidewalks running perpendicular to drives, pedestrian crossing areas, designated fire lanes, or clear two lane passage by vehicles on roads and drives. Vehicles in violation will be towed after reasonable efforts to contact the person, Unit Owner or occupant to whom the vehicle is registered. In addition, a $25 per day fine may be levied against the person, Unit Owner or occupant to whom the vehicle is registered, following Notice and Hearing, for the period that the vehicle violates these rules, unless, at such hearing good and valid reasons are given for such violation." Rules, § 6.7. In addition, there are governmental parking restrictions related to fire lanes. Since moving into the condo, Jones has had a designated parking spot. Over the years, Jones has parked in spaces other than his assigned space when he had visitors or more than one vehicle. There are limited unassigned parking areas where unit owners and their guests are allowed to park.

Between 2004 and 2007, Jones' vehicle was towed approximately three times by Whitey's Towing Service (Whitey's) from the condominium grounds: December 19, 2004, December 9, 2006, and January 6, 2007. Whitey's had a contract with Imagineers to tow illegally parked vehicles at Twin Oaks. The representative from Whitey's testified that Jones' vehicle was towed because it was in the fire lane. Jones testified that he never parked in a fire lane. The three tow charges totaled approximately $353. On each occasion, Jones had to tender payments to retrieve his vehicle. Jones requested reimbursement for the towing costs. He was only reimbursed by Whitey's for one instance.

There was no evidence that the association or Whitey's made any efforts to contact Jones before his vehicle was towed. Hinman testified that notice depended on the circumstances. There was often no notice if the vehicle was towed late at night or parked in a fire lane. A car parked in a fire lane was towed for safety reasons and no notice was provided. In addition, the owner of the vehicle may not be known. Hinman testified that reasonable towing notice is given to the best of his ability.

Jones testified that he complained to the property manager about the towing of vehicles. Sometime in 2007, the condo association board of directors voted to discontinue Whitey's Towing.

F Rodents Pests

There was some evidence regarding rodent and pest issues at Twin Oaks. Jones testified that he has experienced problems with rodents and pests after moving to Twin Oaks. He made several complaints to the property manager and believes that the association failed to adequately address the rodent and pest issues. Shephard also testified about experiencing problems with roaches in the common areas of Bldg. #102. She believed that the association was slow in addressing these issues.

Hinman testified regarding the association's pest control measures. A cleaning service visits weekly. In addition, the association has an annual pest control contract. Hinman could only remember a few occasions when additional rodent control or pest spraying was necessary during his tenure.

G Security

The condominium complex is in a fairly-populated area that has experienced some criminal activity. Jones testified that there were several safety concerns at the complex, including lighting in disrepair and security doors that would not lock. In 2005, Jones' vehicle was stolen from the complex's parking lot while parked in his assigned parking spot. Jones testified that his insurance did not cover the full value of the vehicle and his net loss was approximately $3,000. Jones did not have any documentation to support his loss estimate. Jones complained to Hinman about his vehicle being stolen at Hinman's first association meeting in the summer of 2005. Shephard also reported that her son's Jeep was also broken into. The association has made some safety improvements, including cutting back foliage away from windows, replacing lighting and repairing malfunctioning security doors.

H Snow Removal

Jones testified that the snow removal at the complex was inadequate. He recounted a number of occasions when he felt that the association was deficient. He recognized, however, that there had been several heavy snowstorms which made plowing difficult. In addition, the complex is difficult to plow because of its layout and unit owners' failure to move vehicles to allow for plowing. During this period, the association did have a snow removal contract. Jones never sent a letter to the association complaining about snow removal.

Additional facts, proved by a fair preponderance of the evidence, will be provided as needed.

III DISCUSSION A Claims

On August 15, 2008, Jones filed a seven-count counterclaim against the association alleging claims arising from breach of contract, violation of the Common Interest Ownership Act, violation of the unfair trade practices act, statutory theft, breach of implied covenant of good faith and fair dealing, conversion, and negligence.

(1) Breach of Contract

The first count of the counterclaim, filed August 15, 2008, alleges that the association acted in breach of contract. On July 6, 1999, Jones entered into a contract with the association when he acquired title to his unit and became a shareholder with a security interest in the common interest community. The association has a duty to maintain and repair the common elements of the condominium complex for which Jones is responsible for paying common area charges. Before the foreclosure action was commenced on October 6, 2004, the association breached the contract in the following ways: by failing to make timely repairs to the plumbing and heating system affecting the community; by failing to make timely roofing repairs causing damage to Jones' unit and the community; by failing to timely address security issues related to the parking lot thefts notwithstanding numerous car thefts including the theft of Jones' car; by allowing its towing agents to illegally tow Jones' vehicle and cars of other unit owners from assigned areas in the parking lot; by failing to timely address issues related to pest control allowing roaches and rodents to infest Jones' unit and the community; by failing to provide timely snow removal from the parking lot; by failing to maintain sufficient, accurate accounting and bookkeeping for the financial records of the community and depriving Jones and other owners the right to inspect said records; by mishandling budgets of community, causing excessive financial losses exceeding $50,000 to the community's reserve cash accounts and inflated increases of common expense charges; by misappropriating community funds; by failing to conduct regular meetings as authorized; by failing to orderly address oral or written correspondences with respect to complaints made by Jones and other unit owners; and by failing to provide reports of complaints made by unit owners and the disposition thereof.

In his post-trial brief, filed September 3, 2009, Jones argues that the association breached the terms of their contract and failed to preserve and promote the unit owners' interests as set forth in the Declaration, Bylaws and Rules. The association breached its fiduciary duty to protect unit owners such as Jones from suffering harm or damage to his unit. The association failed to make repairs to the roof in a timely manner. As a result, Jones suffered water damage to his property. The association also failed to make timely repairs to the common element parts of the heating system resulting in Jones paying for erroneous repairs to his unit. Jones was never reimbursed by the association for the costs of the repairs. The association commenced a collection action against Jones without the board of director's approval and notice and hearing as required by the Declaration. Jones was also improperly charged interest and penalties. The 2006 letter to Jones indicating the board of director's approval was sent two years after commencement of the collection proceeding. The association failed to conduct regular annual meetings as required. The association allowed Whitey's to improperly tow vehicles from the condo parking lot. No efforts were made to contact the unit owner before the vehicle was towed. The association also did not look out for the unit owners' convenience and well-being by failing to promptly address issues relating to pest control, security and parking lot thefts.

In its post-trial brief, filed October 30, 2009, the association argues that "Connecticut General Statutes [ § ]47-257(g) and the cases that have considered this statute make it clear that a unit owner cannot unilaterally exempt himself or herself from the liability of paying the monthly common fees . . . Simply put, the Connecticut statutes and case law state that Jones as a unit owner is not permitted to withhold his monthly condominium fees despite his claims against Twin Oaks. Jones should have first raised his issues with the board of directors, and if and when the issues were not addressed, he should have filed a claim in Small Claims or other court venue . . . Twin Oaks did not breach a contract with Jones . . . Thus, the evidence shows that Twin Oaks' board and managers did their jobs in managing the property . . . Jones may not agree with how the Twin Oaks property was managed, but there was no testimony presented that showed that the Twin Oaks board and property manager ceased to perform their duties at any time. The only contract breach in this case was Jones breaching his statutory duty and duty as a unit owner . . . to pay all of his monthly condo fees in a timely manner." (Citations omitted.) (Association's Post-trial Memorandum of Law, 10/30/09, pp. 5-7.)

Jones and the association are parties to a contract. "[T]he [condominium] declaration operates in the nature of a contract, in that it establishes the parties' rights and obligations . . ." Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, 273 Conn. 724, 734, 873 A.2d 898 (2005). The declaration was in effect when Jones purchased his unit. "The essential elements for a cause of action based on breach of contract are the formation of an agreement, performance by one party, breach of the agreement by the opposing party, damages and causation." McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).

In this case, there is an issue regarding Jones's performance under the agreement. In general, a party cannot "recover contract damages under the agreement unless he has fully performed his own obligation under it, has tendered performance, or has some legal excuse for not performing." (Internal quotation marks omitted.) David M. Somers Associates, P.C. v. Busch, 283 Conn. 396, 406, 927 A.2d 832 (2007). See also DiBella v. Widlitz, 207 Conn. 194, 199, 541 A.2d 91 (1988); Automobile Ins. Co. v. Model Family Laundries, Inc., 133 Conn. 433, 437, 52 A.2d 137 (1947). Legal excuses justifying non-performance would include prevention of performance by the other party to the contract, impossibility or impracticability. See Roy v. Stephen Pontiac-Cadillac, Inc., 15 Conn.App. 101, 104, 543 A.2d 775 (1988) (discussing when impossibility and impracticability would excuse performance); Morehouse v. Bradley, 80 Conn. 611, 613, 69 A. 947 (1908) (excusing performance upon prevention by the other party).

Under the Declaration, the association performs pursuant to the contract by providing services to the unit owners including properly maintaining the common areas, and unit owners, like Jones, perform by paying their monthly condominium fees. Unit owners are required to pay common fees and expenses on a monthly basis. See Declaration, § 19.8. Declaration, § 19.9 provides: "In the event of default for a period of ten (10) days by any Unit Owner in the payment of any Common Expense assessment levied against his or her Unit, the Executive Board shall have the right, after Notice and Hearing, to declare all unpaid assessments for the pertinent fiscal year to be immediately due and payable." In addition, § 47-257(g) provides that "[n]o 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 elements or by abandonment of the unit against which the assessments are made." See also Declaration, § 19.11.

Jones knew when he bought the unit that he had to comply with the Declaration of the association. He understood that he was obligated to pay the common charges. In March 2004, Jones decided, unilaterally, to withhold his common charges in the amount totaling $555.86. He withheld the monthly common charge for March 2004, and April 2004, and made a partial payment in May 2004. He admitted that he withheld the monthly common charges to offset the costs associated with the heating repairs done on his unit by MAREC in November 2003, which the association refused to reimburse.

The evidence demonstrates that Jones failed to perform his obligation under the contract. Courts addressing issues relating to a unit owner's failure to pay common charges in response to a dispute with the condominium association have cited to the statutory provisions that a unit owner cannot unilaterally exempt him or herself from liability for payment of common charges. See Broad Street School Condominium Corp. v. Minneman, Superior Court, judicial district of New London, Docket No. 0111179 (April 23, 1997, Solomon, J.); Watch Hill Condominium, Inc. v. Van Eck, Superior Court, judicial district of New Haven, Docket No. CV 93 0344796 (June 14, 1996, Barnett, J.) ( 17 Conn. L. Rptr. 198); Wilton Crest Condominium v. Stern, Superior Court, judicial district of Fairfield, Docket No. 030406 (August 13, 1993, Leheny, J.) ( 8 C.S.C.R. 955) [ 9 Conn. L. Rptr. 539]; Anchorage Condominium v. Smith, Superior Court, judicial district of Fairfield, Docket No. 227523 (October 16, 1986, Harrigan, J.) ( 1 C.S.C.R. 841).

Jones' decision to pursue a self-help remedy to his dispute with the association by withholding common charges precludes him from proving that the association breached the contract because he failed to perform himself. He cannot recover damages for breach of contract because he did not fully perform his own obligation to pay all the monthly common charges. He did not tender all the payments, and he does not have a recognized legal excuse for non-performance.

Jones failed to prove his breach of contract claim by a fair preponderance of the evidence. Consequently, judgment may enter for the association on count one.

(2) Violation of the Common Interest Ownership Act

The second count alleges a violation of the Common Interest Ownership Act pursuant to General Statutes § 47-249 et seq., based on the failure of the association to timely maintain, repair and make replacements to the common elements of the community.

In his post-trial brief, Jones argues that the association violated various aspects of the Common Interest Ownership Act in the following ways: by failing to hold regular annual meetings; by failing to upkeep the common elements, including lack of timely snow removal and allowing the towing of vehicles without making reasonable efforts to contact the unit owner before towing; by failing to respond to unit owners' complaints; by failing to timely address problems with rodents, parking lot thefts, security, and the roof, which caused damage to Jones' unit; by failing to reimburse Jones for a heating repair bill when the problem was caused by the common element; and, by failing to accept monthly common payments made by Jones while still assessing late charges, interest and attorneys fees without notice and hearing. Jones argues that the association was willful in the following ways: by not responding in a reasonable manner to Jones' efforts to try to resolve the disputed heating repair bill; by not providing notice and hearing; and by not making timely repairs to the common elements.

In its post-trial brief, the association argues: "Section 47-249 delineates that certain repairs/replacements are the responsibility of the unit owner, and other specific repairs/replacements are the responsibility of the association. Section 47-249 does not define how often an association should repair or replace certain building systems, and the statute does not provide a penalty if an association does not take certain action in what reasonable people might define as a timely manner. Section 47-249 merely guides the association and the unit owner that each has certain responsibilities in the context of condominium operations. The fact that the Twin Oaks association board of directors did not act on certain repair or replacement issues as quickly as Jones would like does not rise to the level of any statutory violation whatsoever." (Association's Post-trial Memorandum of Law, 10/30/09, pp. 7-8.)

"The statutory scheme in Connecticut governing condominium developments is the Common Interest Ownership Act (Act). See generally General Statutes § 47-200 et seq." Weldy v. Northbrook Condominium Ass'n., Inc., 279 Conn. 728, 735, 904 A.2d 188 (2006). The Common Interest Ownership Act "is a comprehensive legislative scheme regulating all forms of common interest ownership that is largely modeled on the Uniform Common Interest Ownership Act . . . It is a detailed statutory scheme governing the creation, organization and management of common interest communities and contemplates the voluntary participation of the owners." (Citation omitted; internal quotation marks omitted.) Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, 38 Conn.App. 420, 428, 662 A.2d 129 (1995), aff'd, 237 Conn. 123, 676 A.2d 369 (1996). The Act provides for a private right of action to remedy violations. See id., 429. Under General Statutes § 47-278, "[i]f a declarant² or any other person subject to [the Act] fails to comply with any of its provisions or any provision of the declaration³ or bylaws, any person or class of persons adversely affected by the failure to comply has a claim for appropriate relief . . ." Such relief "shall be liberally administered to the end that the aggrieved party is put in as good a position as if the other party had fully performed . . ." General Statutes § 47-212(a). An award of compensatory damages is an appropriate form of relief. See Grey v. Coastal States Holding Co., 22 Conn.App. 497, 505, 507, 578 A.2d 1080, cert. denied, 216 Conn. 817, 580 A.2d 57 (1990).

2 Under § 47-202(12), "`Declarant' means any person or group of persons acting in concert who (A) as part of a common promotional plan, offers to dispose of his interest in a unit not previously disposed of or (B) reserves or succeeds to any special declarant right."

3 Under § 47-202(13), "`Declaration' means any instruments, however denominated, that create a common interest community, including any amendments to those instruments."

In Weldy, the Supreme Court assessed whether the condo association exceeded its authority in adopting a leash restriction pursuant to the Common Interest Ownership Act and the association's documents. Weldy v. Northbrook Condominium Ass'n., Inc., supra, 279 Conn. 734. The court noted that: "When a court is called upon to assess the validity of [an action taken] by a board of directors [of a condominium association], it first determines whether the board acted within its scope of authority and, second, whether the [action] reflects reasoned or arbitrary and capricious decision making." (Internal quotation marks omitted.) Id.

The court must first determine whether the association acted within its scope of authority. The evidence demonstrates that the association acted within its scope of authority. The association contracted with Imagineers for property manager services. See Bylaws, § 2.5. The association took action to maintain the common elements, including contracting for snow removal, towing, and pest control. The association eventually retained MAREC to repair the common element heating problems.

The court must next determine whether the association's actions reflect reasoned or arbitrary and capricious decision making. Such decision making is founded on prejudice or preference or characterized by unpredictable or impulsive behavior. See Black's Law Dictionary (9th Ed. 2009). The evidence does not reflect arbitrary and capricious decision making. The association's actions did not appear to be founded on prejudice or preference or characterized by unpredictable or impulsive behavior. Rather, there is proof of negligent or careless decision making, which will be addressed later in this decision.

Additionally, under General Statutes § 47-257(g), "[n]o 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 elements or by abandonment of the unit against which the assessments are made." Jones' decision to pursue a self-help remedy to his dispute with the association by withholding common charges precludes him from proving the association violated the Common Interest Ownership Act. See Broad Street School Condominium Corp. v. Minneman, supra, Superior Court, Docket No. 0111179; Watch Hill Condominium, Inc. v. Van Eck, supra, 17 Conn. L. Rptr. 198; Wilton Crest Condominium v. Stern, supra, 8 C.S.C.R. 955; Anchorage Condominium v. Smith, supra, 1 C.S.C.R. 841.

Jones has failed to prove this claim by a fair preponderance of the evidence. Consequently, judgment may enter for the association on count two.

(3) Violation of the Connecticut Unfair Trade Practices Act

The third count alleges a violation of the Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., based on the association's failure to provide Jones adequate services to address problems affecting the quiet enjoyment of his unit and the community — including, but not limited to, the illegal towing of his car and the heating issues related to the counterclaim plaintiff's foreclosure action. The association's activities constitute unfair and/or deceptive acts or practices in the conduct of its trade or commerce pursuant to Connecticut General Statutes § 42-110a et seq. that caused Jones to suffer damages.

In his post-trial brief, Jones argues that the association's violations of the Common Interest Ownership Act offended public policy under CUPTA. Jones contends that the association, acting through its members and agent, Imagineers, engaged in immoral, unethical, oppressive, and unscrupulous behavior, in violation of § 42-110b(a) in the following ways: by bringing a foreclosure action against Jones when it did not adhere to its own contractual obligation as it pertains to notice and hearing that was not offered to Jones in violation of statute; and by the association erroneously charged Jones for alleged repairs to the heating system in his unit when the problem was actually a common element problem for which the association is responsible contractually.

In its post-trial brief, the association argues that: "The Third Count of the Complaint alleging violations of the Connecticut Unfair Trade Practices Act. [General Statutes] § 42-110a et seq. ("CUTPA') against Twin Oaks is, therefore, legally insufficient because residential condominium association management activities are not `trade or commerce' or `practices' within the purview of CUTPA. . . . Mere acts of negligence or mismanagement, even if found to be true, are not a `trade' or `practice' and therefore do not arise within the purview of CUTPA." (Citations omitted.) (Association's Post-trial Memorandum of Law, 10/30/09, p. 10.)

"The essential elements to pleading a cause of action under CUTPA are: 1. That the defendant committed an unfair or deceptive act or practice (note: if the CUTPA claim is based upon a violation of another statute, that violation should also be alleged); 2. That the act complained of was performed in the conduct of trade or commerce; 3. That the prohibited act was the proximate case of harm to the plaintiff." T. Merritt, 16 Connecticut Practice Series: Elements of an Action (2008), § 11:1, p. 530. "[General Statutes § ]42-110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other business persons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy." (Citation omitted; internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 18-19, 938 A.2d 576 (2008).

The association correctly argues that "residential condominium association management activities are not `trade or commerce' or `practices' within the purview of CUTPA . . . Mere acts of negligence or mismanagement, even if found to be true, are not a `trade' or `practice' and therefore do not arise within the purview of CUTPA." (Association's Post-trial Memorandum of Law, 10/30/09, p. 10.) Such activities "are not a `trade' or `practice' and, therefore, do not come within the purview of CUTPA." Rafalowski v. Old County Road, Inc., 45 Conn.Sup. 341, 719 A.2d 84 (1997), aff'd, 245 Conn. 504, 714 A.2d 675 (1998).

Jones has failed to prove this claim by a fair preponderance of the evidence. Consequently, judgment may enter for the association on count three.

(4) Statutory Theft

The fourth count alleges that the association's misappropriation of funds from the community's reserve account constitutes statutory theft pursuant to General Statutes § 52-564.

In his post-trial brief, Jones argues that the association violated § 52-564 by misappropriating funds in the association's reserve account in relation to the failure to replace the roof for the building in 2001, including the special assessment that was levied on the unit owners in 2005.

In its post-trial brief, the association argues: "[ § 52-564] has no applicability to any of the facts of this case because there was no testimony or documentary evidence that could suggest that the Twin Oaks board or managers stole money from the Twin Oak's community reserve accounts as Jones' Complaint alleges." (Association's Post-trial Memorandum of Law, 10/30/09, p. 11.)

"Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119 . . . Pursuant to § 53a-119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from an owner . . . Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutory theft requires an intent to deprive another, of his property; second, conversion requires the owner to be harmed by a defendant's conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above that he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006); see also De Jesus Suarez-Negrete v. Trotta, 47 Conn.App. 517, 520-21, 705 A.2d 215 (1998).

The evidence does not demonstrate that the association intended to deprive another of property or misappropriate funds. The association expended funds derived from the common charges. The association's books are subject to an annual independent audit. The audits have not turned up any misappropriation of funds. The association has also not been subject to a criminal investigation regarding any misappropriation of funds. There was evidence to support the association's position that the decrease in reserves during this period was attributable, in a large part, to the increased costs of maintaining the condominium complex, including higher energy and contractor expenses.

Jones failed to prove this claim by a fair preponderance of the evidence. Consequently, judgment may enter for the association on count four.

(5) Breach of the Implied Covenant of Good Faith and Fair Dealing

The fifth count alleges that the association, through its agents, servants, and/or employees, failed to provide Jones adequate services to address problems affecting the quiet enjoyment of his unit and the community. These issues included the illegal towing of his car and the heating issues related to the foreclosure action. According to the fifth count, the association acted in bad faith when violating its obligations under the Declaration, and its acts constitute a breach of the implied covenant of good faith and fair dealing.

In his post-trial brief, Jones argues that the association did not exercise good faith and fair dealing by failing to follow its contractual obligations under the Declaration, Bylaws and Rules and its statutory obligations under the Common Interest Ownership Act. Jones contends the association acted in bad faith in the following ways: by failing to respond to Jones efforts to resolve the disputed heating repair bill; by initiating a collection action without providing Jones with notice and hearing; by the association's agent towing Jones' vehicle without reasonable notice; and by failing to promptly repair the roof, which resulted in damage to Jones' unit.

In its post-trial brief, the association argues: "Jones claims that Twin Oaks acted in bad faith and did not deal fairly with Jones. Under Connecticut law, `bad faith' connotes more than mere negligence, it involves dishonest purpose and an intent or design to deceive . . . Bad faith also suggests conduct that is intentional or fraudulent and intended refusal to fulfill a certain duty . . . Frankly, there was no evidence presented at trial that could show that Twin Oaks acted in bad faith . . . Neither the Twin Oaks board nor its manager(s) did anything intentional to hinder Jones' occupancy and enjoyment of his suit . . . Jones still received maintenance services and repairs, still had his parking areas snowplowed, and still had insurance and water service furnished to his unit. Jones may not have liked how the Twin Oaks community was managed, but there is no evidence of bad faith here. The only bad faith here was Jones' bad faith in not paying his monthly condo fees as required." (Citations omitted.) (Association's Post-trial Memorandum of Law, 10/30/09, pp. 12-13.)

"[E]very contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term . . . To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 16 n. 18.

"Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Citation omitted; internal quotation marks omitted.) Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992).

The evidence fails to demonstrate that the association acted in bad faith. The association provided services to the unit owners. That the services may have been negligently or carelessly performed does not mean that the association acted in bad faith. There was no fraudulent conduct. The association's actions did not rise to the level to constitute a breach of the implied covenant of good faith and fair dealing.

Jones failed to prove this claim by a fair preponderance of the evidence. Consequently, judgment may enter for the association on the fifth count.

(6) Conversion

The sixth count alleges that the association's actions constitute conversion. First, it alleges that the association misappropriated funds from the community's reserve accounts and has not reimbursed said accounts. Second, it alleges that the association allowed its towing agents to illegally tow Jones' vehicle and other unit owners' cars from the parking lot without reasonably attempting to contact them prior to towing, as provided by the Declaration.

In his post-trial brief, Jones argues that the association wrongfully converted his vehicle when they authorized or allowed Whitey's to tow his vehicle on three occasions when it was not illegally parked and without reasonable notice.

In its post-trial brief, the association argues that: "There is no conversion here because the removal of the car is authorized, proper, and even necessary to protect the safety of the unit owners. As for the reserve accounts, as discussed previously in this brief, Jones provided no evidence at trial by an accountant or other financial expert of any misappropriation or mishandling of any funds. Therefore, Jones' claim of conversion must fail." (Association's Post-trial Memorandum of Law, 10/30/09, pp. 14-15.)

"The tort of [c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights . . . Thus, [c]onversion is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm . . . The term owner is one of general application and includes one having an interest other than the full legal and beneficial title . . . The word owner is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right . . . It is not a technical term and, thus, is not confined to a person who has the absolute right in a chattel, but also applies to a person who has possession and control thereof." (Citation omitted; internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 770-71.

As to the misappropriation of funds, Jones raises concerns regarding the decrease in the association's reserves during Boothby's tenure. Between 2003 and 2005, the association's reserves decreased from $103,000 to $36,300. The association's books are subject to an annual independent audit. The audits have not turned up any misappropriation of funds. The association has also not been subject to a criminal investigation regarding any misappropriation of funds. There was evidence to support the association's position that the decrease in reserves during this period was largely attributable to the increase in the costs of maintaining the condominium complex, including higher energy and contractor costs.

As to the towing issue, between 2004 and 2007, Jones' vehicle was towed approximately three times by Whitey's from the condominium grounds. Whitey's had a contract with Imagineers to tow illegally parked vehicles at Twin Oaks. The representative from Whitey's testified that Jones' vehicle was towed because it was in the fire lane. Jones testified that he never parked in a fire lane. The three tow charges totaled approximately $353. On each occasion, Jones had to tender payments to retrieve his vehicle. Jones requested reimbursement for the towing costs. He was only reimbursed by Whitey's for one instance. Whitey's Towing was authorized by the association to remove illegally parked vehicles. The evidence is contradictory as to whether the towing was unauthorized.

Jones failed to prove this claim by a fair preponderance of the evidence. Consequently, judgment may enter for the association on count six.

(7) Negligence

The seventh count alleges that the association failed to exercise reasonable care in supervising its managers, agents, servants, and/or employees in the performance of their duties, in one or more of the following ways: by failing to properly monitor, oversee, assess, and address grievances of unit owners; by failing to properly monitor, oversee, assess financial and budget affairs of the Community; and by failing to adequately provide repairs to the Community in a reasonable fashion.

In his post-trial brief, Jones argues that a duty of care exists between the association and Jones based on the contractual obligations of the Declaration, Bylaws and Rules, and from the Common Interest Ownership Act. The standard of care is enumerated in § 2.3 of the Bylaws. The association breached the duty of care by not making timely repairs to the roof and the common element heating system.

In its post-trial brief, the association argues that: "While one might not agree with every decision made by a condo association board of directors . . . Twin Oaks community continued to function as it should . . . With the age of the Twin Oaks complex and the many economic challenges that an association board generally faces in deciding when and what repairs should be made, it is clear that the Twin Oaks board acted prudently and reasonably." (Association's Post-trial Memorandum of Law, 10/30/09, pp. 15-16.) "At trial, Jones was simply unable to prove any of his claims against Twin Oaks. Jones certainly had his complaints, but the paucity of evidence and testimony provided at trial shows that Twin Oaks and its manager(s) acted in accordance with appropriate management practices, and declaration and by-laws, and applicable state law." (Association's Post-trial Memorandum of Law, 10/30/09, pp. 17-18.)

Jones asserts a claim of common-law negligence against the association. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d 682 (2007).

(a) Duty

As a threshold matter, it is necessary to determine whether, as a matter of law, the association owes Jones a duty of care. "Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., supra, 284 Conn. 29.

In Sevigny v. Dibble Hollow Condo Ass'n., Inc., 76 Conn.App. 306, 819 A.2d 844 (2003), the court addressed a condominium unit owner's claim of common-law negligence against a condominium association. There, the plaintiff unit owner sued the association, managing agent and snow removal contractor for injuries resulting from a fall on ice in the driveway of his condo unit, which was part of the common area of the complex. Sevigny v. Dibble Hollow Condo Assn., Inc., supra, 76 Conn.App. 308-09. The plaintiff appealed from the judgment of the trial court, rendered after a jury trial, in favor of the defendants. Id., 307.

In reversing the judgment and ordering a new trial, the Appellate Court examined the status of a condo association in relation to a unit owner. Id., 324. "We first note that the determination of whether a duty exists between individuals is a question of law . . . The existence of a duty of care is an essential element of negligence . . . A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Citation omitted, internal quotation marks omitted.) Id., 317-18. The court agreed with the unit owner that "that the common-law duty owed him by [the association] is the same as the traditional common-law duties owed by a possessor of land to an invitee." Id., 320.

Citing to the Common Interest Ownership Act and the courts of several other states, the court found that "a unit owner's relationship with a condominium association as being akin to a tenant's relationship to a landlord with regard to the common areas, and that such a relationship involves the same duty of care as that owed to an invitee." Id., 322.

The court found that "[g]enerally, [condominium] associations with the status of a legal entity are considered subject to civil liability . . . In an action to recover for injuries allegedly suffered because of the condition of common areas of a condominium it has been held that a condominium association may be sued for negligence in its common name . . . An individual unit owner who is a member of the association may also maintain a negligence action against the association for negligent maintenance of its common areas." (Citations omitted; internal quotation marks omitted.) Id., 321-22.

As a matter of law, the association owes Jones a duty of care. Section 2.3 of the Bylaws provides that "[i]n the performance of their duties, the officers and Directors of the Executive Board are required to exercise the care required of fiduciaries of the Unit Owners, if appointed by the Declarant, and ordinary and reasonable care if elected by the Unit Owners." Section 6.1 of the Declaration provides that "[t]he Association shall maintain, repair and replace all of the Common Elements, except the portions of the Limited Common Elements which are required by this Declaration to be maintained, repaired or replaced by the Unit Owners." The association's powers and duties include: "regulate the use, maintenance, repair, replacement and modification of the Common Elements." Bylaws, § 2.2(h). Under § 6.5 of the Declaration, "[t]he Association shall be responsible for damage to Units caused intentionally, negligently or by its failure to maintain, repair or make replacements to the Common Elements." Like Sevigny, the association is "a nonstock corporation, a separate legal entity, that assumed the responsibility of maintaining, repairing and replacing all of the common elements . . ." Sevigny v. Dibble Hollow Condo Ass'n., Inc., supra, 76 Conn.App. 323. The association owes a duty of care to Jones as a unit owner.

(b) Breach

Jones alleges that the defendants breached their duty by failing to properly monitor, oversee, assess and address grievances of unit owners; by failing to properly monitor, oversee, assess financial and budget affairs of the Community; and by failing to adequately provide repairs to the Community in a reasonable fashion. The focus must necessarily be on the common elements.

"[A] fundamental premise of tort law [is] that before there can be liability, there must be a breach of a duty of care owed by the defendant to the plaintiff, which, in turn, requires that there be a special relationship between the plaintiff and the defendant." Gajewski v. Pavelo, 36 Conn.App. 601, 621, 652 A.2d 509 (1994), aff'd, CT Page 3437 236 Conn. 27, 670 A.2d 318 (1996), citing W. Prosser W. Keeton, Torts (5th Ed. 1984) § 56. "Negligence is a breach of duty . . . It is important to distinguish between the existence of a duty and the violation of that duty." (Citation omitted; internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171, 544 A.2d 1185 (1988). The plaintiff must prove "a violation of a standard of care as a wrongful act . . ." (Internal quotation marks omitted.) Ward v. Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004).

The association violated its duty of care to Jones in a number of ways. First, the association breached its duty by failing to hold annual meetings. Section 3.1 of the Bylaws provide that "[a]nnual meetings of Unit Owners shall be held on the first Monday in March. At such meeting, the Directors shall be elected by ballot of the Unit Owners, in accordance with the provisions of Article II. The Unit Owners may transact other business at such meetings as may properly come before them." Between 2001 and 2005, the association failed to hold regular annual meetings.

Second, the association breached its duty by failing to provide notice and hearing before initiating the foreclosure action regarding the withheld common charges. The association failed to follow its own governing documents regarding the nonpayment of common charges. Section 19.9 of the Declaration provides that: "In the event of default for a period of ten (10) days by any Unit Owner in the payment of any Common Expense assessment levied against his or her Unit, the Executive Board shall have the right, after Notice and Hearing, to declare all unpaid assessments for the pertinent fiscal year to be immediately due and payable." The declaration provides for notice and hearing procedure before certain action may be taken. Section 24.2 of the Declaration provides: "Whenever the Documents require that an action be taken after `Notice and Hearing,' the following procedure shall be observed: The party proposing to take the action (e.g., the Executive Board, a committee, an officer, the manager, etc.) shall give written notice of the proposed action to all Unit Owners or occupants of Units whose interests would be significantly affected by the proposed action. The notice shall include a general statement of the proposed action and the date, time and place of the hearing. At the hearing, the affected person shall have the right, personally or by a representative, to give testimony orally, in writing, or both (as specified in the notice), subject to reasonable rules of procedure established by the party conducting the meeting to assure a prompt and orderly resolution of the issues. Such evidence shall be considered in making the decision but shall not bind the decision makers. The affected Persons shall be notified of the decision in the same manner in which notice of the meeting was given." The association did not provide Jones with the required proper notice and hearing before the collection action was initiated.

Jones was also denied an effective right to appeal. Under § 24.3 of the Declaration, "[a]ny Person having a Right of Notice and Hearing shall have the right to appeal to the Executive Board from a decision of persons other than the Executive Board by filing a written notice of appeal with the Executive Board within ten (10) days after being notified of the decision. The Executive Board shall conduct a hearing within thirty (30) days, giving the same notice and observing the same procedures as were required for the original meeting."

Finally, the association breached its duty by failing to properly maintain the heating system and roof. Section 6.1 of the Declaration provides that: "The Association shall maintain, repair and replace all of the Common Elements, except the portions of the Limited Common Elements which are required by this Declaration to be maintained, repaired or replaced by the Unit Owners." The association's powers and duties include: "regulate the use, maintenance, repair, replacement and modification of the Common Elements." Bylaws, § 2.2(h). "The Association shall be responsible for damage to Units caused intentionally, negligently or by its failure to maintain, repair or make replacements to the Common Elements." Declaration, § 6.5. The common elements are "[a]ll portions of the Common Interest Community other than the Units." Declaration, § 1.5 — Common Elements. Under this definition, the roof and main heating system are considered common elements which the association is responsible to maintain. Declaration, § 6.1.

The heating problems Jones experienced starting in November 2003, were attributable to the common element parts of the heating system. In or around March 2004, unit owners were informed that the heating problems during the past several months resulted from rusted heating pipes in the basement of the building as well as the boiler. The association eventually paid MAREC to make the necessary repairs. The evidence demonstrates that the association failed to timely and properly maintain, repair and/or replace the common element parts of the heating system.

The problems with the roof leaking were also attributable to the common elements of the roof, not the individual units. Problems with the building's roof were raised at the association's 2001 annual meeting on October 4, 2001. At that meeting, Boothby indicated that the roof to Bldg. #102 needed to be replaced. The roof was actually not replaced until late 2005. The evidence demonstrates that the association failed to timely and properly maintain, repair and/or replace the common element roof of the building.

The association's conduct relating to the common elements fell below the legal standard established to protect others against unreasonable risk of harm. The association breached the duty of care owed to Jones as a unit owner.

(c) Causation

Jones also alleges that the breach of the duty of care by the association was a substantial factor in bringing about his damages.

"An essential element of any negligence action is the establishment of the defendant's conduct as a proximate cause of the plaintiff's injury . . . The causal relation between the defendant's wrongful conduct and the plaintiff's injuries must be established in order for the plaintiff to recover damages . . . In Connecticut, the test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants' conduct] . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection . . . This causal connection must be based upon more than conjecture and surmise." (Citations omitted; internal quotation marks omitted.) Wu v. Fairfield, 204 Conn. 435, 438-39, 528 A.2d 364 (1987).

The court must determine whether the damages Jones allegedly suffered resulted from the association's breach of duty.

There is a causal relation between the association's failure to properly maintain and repair the heating system and Jones' injuries and losses. When Jones paid MAREC for replacing his heating valve/thermostat, he was experiencing heating problems that were more likely than not caused by the common element parts of the heating system. The lack of heat was caused by rusted heating pipes in the basement of the building as well as the boiler. For a period of several months, Jones experienced a lack of heat in his unit before the association finally made all the necessary repairs.

There is a causal relation between the association's failure to provide notice and hearing and Jones' injury. Before the association commenced a foreclosure action regarding the withheld common charges, Jones was never given the opportunity for notice and hearing in violation of § 19.9 of the Declaration.

There is a causal relation between the association's failure to properly maintain and repair the roof and Jones' injuries. In October 2001, the association knew that the roof of the building needed to be replaced. The association did not hold regular annual meetings between 2001 and 2005, when the roof was finally replaced. Failure to hold annual meetings violates § 3.1 of the Bylaws. In order to pay for the roof repairs for Bldg. #102, the association eventually had to impose a special assessment of $50 per unit per month. Hinman admitted that the roof repairs were not necessarily done promptly and that the association was responsible for damage to a unit caused by a leaking roof. If the roof were replaced earlier, when the association had sufficient resources, the special assessment might not have been necessary. Failure to promptly fix the roof violates § 6.1 of the Declaration, which requires the association to maintain, repair and replace all of the common elements. Under § 6.5 of the Declaration, the association is responsible for damage to units caused negligently or by its failure to maintain, repair or make replacements to the common elements.

Even after the roof was replaced on Bldg. #102, Jones still experienced water damage in his unit from the roof leaking. Jones testified that he spent approximately $4,000 on repairs to his unit's ceiling. He was told that it would cost between $10,000 to $12,000 to fully repair his ceiling. Jones also argues that the water damage has decreased the resale value of his unit. He did not offer any written documentation to support his estimates as to the repair cost or the resale value. There was insufficient evidence on this point. Some of Jones' personal property stored in the basement also suffered water damage. Water leaked into the basement storage area and caused approximately $1,000 in damage to Jones' property. Although Jones requested reimbursement from Hinman, the association has not reimbursed Jones. Jones later found out that the association received some payment for the water damage. It is evident that failure to promptly fix the roof caused damages to Jones.

The evidence demonstrates that the association set in motion a chain of events that led to Jones' injuries and losses. The association failed to comply with its governing documents: the Declaration, Bylaws and Rules. The association engaged in negligent and careless decision making. Its conduct was a substantial factor in bringing about the damages. Under the circumstances, the association proximately caused the injuries and losses of which Jones complains.

(d) Damages

As a result of the association's negligence, Jones suffered injuries and losses. Jones is entitled to an award of fair, just and reasonable damages. The court must determine the award necessary to compensate Jones for the damages resulting from the association's negligence.

In determining the amount of damages, this court has considered the following caselaw. "To authorize a recovery . . . facts must exist and be shown by the evidence which affords a reasonable basis for measuring the [plaintiff's] loss. The [plaintiff has] the burden of proving the nature and extent of the loss . . . Mathematical exactitude in the proof of damages is often impossible, but the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate." (Citation omitted; internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 58-59, 717 A.2d 77 (1998). "Proof of damages should be established with reasonable certainty and not speculatively and problematically . . . Damages may not be calculated based on a contingency or conjecture." (Citations omitted; internal quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 35, 889 A.2d 785 (2006).

The preponderance of the evidence demonstrates that Jones' losses resulting from the association's breach of duty include paying for repairs to his heating valve/thermostat, experiencing a lack of heat for several months, being subject to a foreclosure action without notice and hearing, paying for water damage to his unit's ceiling and suffering water damage to his personal property.

Jones has proved the negligence claim by a fair preponderance of the evidence. Consequently, the court awards damages in the amount of $25,000.

(8) Attorneys Fees

Jones also seeks attorneys fees. "The general rule of law known as the `American rule' is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception . . . Connecticut adheres to the American rule . . . There are few exceptions. For example, a specific contractual term may provide for the recovery of attorneys fees and costs . . . or a statute may confer such rights." (Citations omitted; internal quotation marks omitted.) Psomas v. DeRaffle Mfg. Co., Inc., Superior Court, judicial district of Fairfield, Docket No. CV 97 0339594 (December 29, 1997, Skolnick, J.) (plaintiff alleged no facts indicating parties discussed payment of attorneys fees under alleged oral agreement); See Vekris v. Pass, Superior Court, judicial district of New Britain, Docket No. CV 91 011005 (November 18, 1991, Berger, J.) (noting deduction for attorney fees was improper because no written contract provided tenants would be liable for attorney fees). In Vekris, the court held: "The rule in Connecticut is that absent contractual or statutory authority, each party must pay its own attorneys fees. As there was no evidence of any agreement to pay attorneys fees and as the landlord tenant statutes do not authorize the payment of attorneys fees (with some exception not applicable herein), [the defendant's] first claim cannot be allowed." (Citation omitted; internal quotation marks omitted.) Vekris v. Pass, supra. Superior Court, Docket No. 91 011005.

Based on the circumstances, Jones is not entitled to an award of attorneys fees based on the judgment in his favor on only the negligence count.

Consequently, Jones' request for an award of attorneys fees is denied.

IV CONCLUSION AND ORDER

For the above-stated reasons, judgment may enter for Jones on count seven in the amount of $25,000.