Opinion
No. 1958 C.D. 2012
11-25-2013
Belle Aire Condominium Association v. Leonard Konefsky, Appellant
BEFORE: HONORABLE BERNARD McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Leonard Konefsky (Konefsky) appeals from the order of the Court of Common Pleas of Montgomery County (trial court). The trial court entered judgment in favor of the Belle Aire Condominium Association (Association) and against Konefsky for unpaid condominium assessments, accelerated assessments, and attorney's fees. We affirm the trial court's order.
The Association filed an amended complaint alleging that Konefsky defaulted with regard to the payment of the Association's assessment to condominium owners for common elements. The Association averred that, at the time it filed the amended complaint, Konefsky owed unpaid assessments, late charges, fees, and costs totaling $2,957.25, and that the Association was seeking to recover those fees plus any additional unpaid assessments that might accrue in the interim. The Association also averred that, in accordance with its Declaration of Condominium (Declaration), it was entitled to accelerate monthly payments for the twelve months following default. The Association also asserted that, under the Declaration, it had the right to collect late charges, interest on unpaid assessments, costs, and attorney's fees. Thus, the Association also sought to recover the attorney's fees it was incurring in its efforts to collect the above noted assessments.
The Association submitted the Declaration and amendments to the Declaration as Plaintiff's Exhibits P-1 (Declaration) and P-2 through P-6 (amendments).
Konefsky filed an answer to the amended complaint, denying the factual averments. The trial court conducted a trial on the amended complaint, and, thereafter, filed an order, without factual findings and legal conclusions, entering judgment in favor of the Association in the total amount of $26,242.97. Konefsky filed an 83 paragraph motion for post-trial relief, raising various alleged errors on the part of the trial court, which the trial court denied without an opinion. Konefsky filed a notice of appeal, and the trial court ordered Konefsky to file a statement of errors complained of on appeal pursuant to Pa. R.A.P. 1925(b). In response, Konefsky filed a lengthy statement of errors complained of on appeal.
The trial court's order indicates that this amount is the total of $17,544.97 in unpaid assessments, $4,788 in accelerated assessments, and $3,910 in attorney's fees.
The trial court issued an opinion pursuant to Pa. R.A.P. 1925(a), in which it did not address any of the issues Konefsky raised in his concise statement, but rather suggested that the Court quash the appeal based on the trial court's view that the concise statement violated Pa. R.A.P. 1925(b)(4)(i), (ii), and (iv). On January 24, 2013, this Court quashed the appeal and dismissed the action with prejudice, having concluded that Konefsky's Rule 1925(b) statement violated the tenets of Pa. R.A.P. 1925(b)(4)(i) and (ii). Konefsky filed an application for reconsideration of our order, and the Court heard argument on the application and the Association's answer thereto. We granted Konefsky's application for reconsideration in part, reinstating the appeal and identifying eight issues we concluded Konefsky had presented with sufficient precision for the purposes of Pa. R.A.P. 1925(b). We remanded the matter to the trial court for the issuance of a supplemental Pa. R.A.P. 1925(a) opinion addressing those particular issues.
We retained jurisdiction, and, now that the trial court has complied with our order and issued a Rule 1925(a) opinion, we will address the issues Konefsky has presented in his brief: (1) whether the trial court erred in denying Konefsky's claim that he is entitled to an offset; (2) whether the record contains substantial evidence to support the trial court's determinations that the Association is entitled to the award of unpaid assessments and/or accelerated assessments; (3) whether the record contains substantial evidence to support the trial court's award of attorney's fees; (4) whether the trial court erred in denying Konefsky's request for a mistrial; and (5) whether the trial court erred in denying Konefsky's request for a new trial. The Association asserts that Konefsky, by failing to cite to court opinions and/or rules and to develop his legal argument relating to the five issues, has waived the issues. We will consider the question of waiver as necessary as we address each of the five issues.
Generally, this Court's standard of review of a trial court's order denying post-trial relief is limited to considering whether the trial court erred as a matter of law or abused its discretion. Koter v. Cosgrove, 844 A.2d 29 (Pa. Cmwlth.), appeal denied, 579 Pa. 713, 858 A.2d 111 (2004).
Offset
Konefsky asserts that the trial court failed to offset the amount of the assessment the trial court determined Konefsky owed by $10,838.47 in payments he alleges he made to the Association. The trial court rejected this claim in its Rule 1925(a) opinion, observing that Konefsky did not demonstrate how he was entitled to an offset and that he merely presented Exhibit D-5, which is an account history of payments he made in 2011, without regard to the amounts he failed to pay over the course of the years-long assessment period at issue during the trial.
Because this issue is confined to the question of whether there is factual support in the record for Konefsky's claim of error and he points to evidence in the record that he believes supports this issue, we conclude that he has not waived the issue.
Konefsky points to a single page from Exhibit D-5, which provides no context from which we could consider his argument. The page in question, which is from an "Owner Ledger", is identified at the bottom as page two from a document apparently printed on September 14, 2011. Page two, however, bears no obvious relationship to the first page of the "Owner Ledger." The first page consists of Konefsky's assessment and payment history for the period from December 31, 2010, through September 1, 2011. For that period, the balance carried forward from before December 2010 was $11,026.97. The second page, upon which Konefsky relies in his appeal, inexplicably has a "date heading" with the figure "414.00" beneath that heading and indicates that Konefsky made payments of $10,838.47.
The Association, however, in its brief, explains this page. Referring to the more recent "Owner Ledger" it submitted into evidence, Association Exhibit P-16, the Association references the testimony of its witness, Stephen S. Livers, the present treasurer of the Association's Board of Directors, who explained that the second page of the more recent "Owner Ledger" is described as an "aging history." On that page the headings are identified differently than those on Exhibit D-5 and the Association attributes the listing of $10,838.47 on D-5 under the "Payment" heading as a spacing and printing issue. This position is indeed supported by reference to Exhibit P-16, the more recent "Owner Ledger," which indicates that the $10,838.47 figure actually identifies the sum due and attributable for a specific 90-day period. This analysis is confirmed by reference to the third column on the more recent "aging history" of the "Owner's Ledger" in Exhibit P-16, which lists the "414.00" figure under the "60-day" aging history and with other "aging date" figures, including the $10,838.47 figure, all of which add up to the total amount due in the far right column.
The trial court evaluated the two pieces of evidence, D-5 and P-16. Given the fact that it is impossible to interpret D-5 to mean what Konefsky claims, and that the decipherable and more recent "Owner Ledger" the Association submitted as Exhibit P-16 indicates that the $10,838.47 figure actually represents an amount Konefsky owed, we conclude that the trial court did not commit any error in failing to provide Konefsky with an offset. Exhibit P-16 and the testimony of Mr. Livers provides ample support for the trial court's rejection of Konefsky's claim for an offset.
Accelerated Assessments
Konefsky asserts that the trial court erred in awarding accelerated assessments in the amount of $4,788. Konefsky claims that there is no evidence in the record to support the award. Konefsky argues that, in order for the Association to request such an award and for the trial court to make such an award, the Association's Board was required to authorize formally the acceleration of Konefsky's monthly assessments. Konefsky suggests that the Association's Board needed to take such formal action and that the trial court could not rely simply on the pleadings and request for relief in the amended complaint. Konefsky, however, points to no provision of the Declaration to support his claim.
Mr. Livers, on cross-examination, admitted that the Board did not adopt a formal resolution and did not send a notice to Konefsky. Mr. Livers did, however, testify that "[t]he Board discussed the matter with the management company looking for a solution to the problem of payments not made and chose to implement the acceleration provision" and did so through the "legal pleading where that was asked for as a remedy." Konefsky offers no authority for the proposition that the Board could not elect to proceed to collect accelerated monthly assessments through this legal action.
Moreover, the Association relies upon Article VI, Section 6.11 of the Declaration, which provides:
If a Unit Owner is in default of the monthly payment of the aforesaid charges or Assessments for thirty (30) days, the Executive Board may, in addition to all other remedies in the Act or Declaration contained, accelerate all other monthly payments or charges and Assessments due for following the twelve (12) months.(Declaration at 14.)
In the amended complaint, the Association noted the acceleration clause of the Declaration and stated that "[j]udgments will be sought for all Assessments due and owing for the twelve months Assessments following trial." (Amended Complaint ¶ 11.) Given Konefsky's failure to cite to any legal authority, notably any provision in the Declaration that requires formal action in the nature of a resolution for the Board to accelerate assessments following default, we conclude that Konefsky has waived this issue. Additionally, our review of the matter suggests that there was no legal impediment to the Board's request for relief in this action that included the accelerated assessments for the period following the entry of judgment. Thus, we conclude that the trial court did not err in awarding accelerated assessments.
Award of Attorney's Fees
The trial court awarded attorney's fees in the amount of $3,910. Article VI, Section 6.10 of the Declaration provides:
All expenses of the Executive Board in connection with any such actions or proceedings, including court costs and attorney's fees and other fees and expenses and all damages, liquidated or otherwise, together with interest thereon at the rate of fifteen (15%) percent per annum, until paid, shall be charged to and assessed against such defaulting Unit Owner, and shall be added to and deemed a part of his respective share of the Common Expenses.(Declaration at 13-14.)
Konefsky does not argue that the Association did not incur attorney's fees or that the amount of attorney's fees is improper. Konefsky's primary argument is that the trial court erred in awarding attorney's fees because the record does not contain any evidence that the Association actually paid the attorney's fees, that there is no evidence such as a contract or letter of agreement demonstrating an obligation on the part of the Association to pay the attorney's fees, and that there is no evidence demonstrating that an attorney/client relationship exists involving the Association. Konefsky provides no support for his contention that a party engaging the services of an attorney who seeks to collect attorney's fees must provide proof that the party actually paid the fees. Similarly, Konefsky provides no support for his other claims. As the Association points out, there is evidence in the record, specifically the testimony of Mr. Livers and counsel for the Association, Stefan Richter, Esquire (who Konefsky called as a witness as on cross-examination), indicating that (1) the Association retained the services of legal counsel; (2) the Association agreed to a particular hourly fee; (3) the Board approved payment of the legal bills; and (4) the Association paid the bills for the legal services provided. Accordingly, we reject this argument.
Request for Mistrial
Without citing any legal precedent, Konefsky argues that the trial court erred in failing to declare a mistrial. Konefsky based his initial request upon the fact that the Association's counsel allegedly informed the trial court that the matter had gone through arbitration and that Konefsky had been unsuccessful before the arbitrator. The only information in the record concerning Konefsky's request for a mistrial occurred as the trial began. As the trial court noted in its Rule 1925(a) opinion, Konefsky raised the issue during the trial and the following colloquy between Konefsky and the trial court ensued:
Mr. Konefsky: We did have a motion by letter for a mistrial, also.(Reproduced Record (R.R.) at 6a-7a.) Thus, the trial court informed Konefsky that it would not consider such a request unless and until Konefsky filed a formal motion. Konefsky never did so.
The Court: Okay. We don't—we don't litigate by letter so it has to be a motion. So I would not—anything by letter I would not consider. It has to be a formal motion.
Mr. Konefsky: Can we make the letter a matter of record in the case irrespective of that?
The Court: It has to be filed in the proper format to do that.
Mr. Konefsky: Okay.
The Court: I mean, you're filing it in the case, but it has to be in the motion for that.
Mr. Konefsky: Very well, Your Honor.
Even if we conclude that Konefsky's failure to file a formal motion subsequent to the trial court's comments did not result in a waiver of this issue, we conclude that the trial court did not err in refusing to grant a mistrial when Konefsky raised the issue in his post-trial motion. The single item Konefsky relied upon when he first made his request, as noted in the quoted colloquy above, was the cover letter accompanying the Association's amended pre-trial statement that the Association's counsel sent to the trial court, which included a reference to a prior arbitration. In that letter, counsel for the Association noted exhibits that he was adding to his trial exhibit list. Counsel stated in the closing sentence of that letter that those added exhibits "were introduced at the arbitration previously held in this case." Thus, the information the Association released concerned only the fact that arbitration occurred; there is no information regarding the specific outcome of the arbitration. The Association asserts that the fact that an arbitration occurred is a matter of record on the docket of the Court of Common Pleas of Montgomery County. Konefsky does not refute this assertion.
Konefsky fails to refer the Court to any legal authority setting forth the standard applicable to motions for mistrial. As the Association points out, our Supreme Court has held that when we review a trial court's order denying a motion for mistrial, our review is limited to considering whether the trial court abused its discretion. Commonwealth v. Chamberlain, 612 Pa. 107, 175, 30 A.3d 381, 422 (2011). "An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will . . . discretion is abused." Id. at 176, 30 A.3d at 422.
Konefsky provides no insight as to why it is reasonable to reach a conclusion that the trial court was unable to preside over a dispute where the only information to which a trial court was exposed before trial was that an arbitration proceeding occurred. Simply knowing that an arbitration occurred does not on its face demonstrate a predisposition to find in favor of the party that was apparently successful before the arbitrator. In his brief, Konefsky, referring to the trial court's colloquy during the trial regarding attorney's fees, contends that the colloquy demonstrates that the trial court "penalized" Konefsky for appealing "an adverse arbitration award and seeking trial de novo." (Konefsky Br. at 22.) The trial court stated as follows:
I've actually had a chance to take a look at your Findings of Fact and Conclusion of Law and I think for the parties' sake that a ruling now would be beneficial. I have to agree that this really is a simple collection case and it would have been a simple collection case if it had been resolved outside the courtroom, but the parties, for whatever reason, chose to not work together and get it into the courthouse and, therefore, attorney's fees do tend to rise and they do get out of hand.(R.R. at 191a-192a.) This comment on the part of the trial court in no way suggests that it penalized Konefsky for challenging the amended complaint. Rather, the trial court appears only to acknowledge that, because the matter was not resolved between the parties, the attorney's fees would be higher. Given the fact that the trial court had no information other than the fact that arbitration occurred, there is nothing in the record that would appear to have apprised the trial court, or anyone else other than the parties, as to the nature of the outcome of the arbitration proceeding. Arbitrators may recommend all types of awards, and there is no basis from which to conclude that the trial court inferred any negative factual matters from simply knowing that arbitration occurred.
Konefsky, however, suggests that the trial court's denials of his various motions in limine and its rejections of his suggested factual findings and conclusions of law provide support for his claim that the trial court was not impartial. Konefsky provides no support for the suggestion that the trial court rendered erroneous rulings, let alone, whether bias was the reason for the rulings. Consequently, this aspect of his argument is meritless.
Konefsky also claims that the trial court demonstrated partiality for the Association. Konefsky claims that the trial court accepted letter communications from the Association, but the trial court refused to accept his letter requesting a mistrial. The letter Konefsky cites is one that informed the trial court of three additional documents the Association intended to produce and submit during the trial. The letter, however, post-dated the trial court's scheduling order placing a time limitation on the submission of a pre-trial statement. That correspondence did not require or request the trial court to take any action at that time, and Konefsky, who received a copy of the communication, had ample opportunity to object to the admission of such documents during the trial. Konefsky's communication, on the other hand, was a motion for mistrial, seeking an order of the trial court.
The documents consisted of the following: (1) minutes of the annual meetings of the Association for 2008-2012; (2) copies of annual budgets for the Association; and (3) invoices for legal bills the Association incurred in the process of collecting Konefsky's unpaid assessments. It is difficult to see how the first two documents caused prejudice, and, with regard to the attorney's bill, the colloquy during the trial indicates that this document simply consisted of an updated list of bills to reflect bills that had accrued after the initial document had been submitted as a proposed exhibit. --------
We do not view these actions as demonstrative of prejudice on the part of the trial court. While Konefsky may be correct that the Association's submission of the additional documents exceeded the time limits set forth in the trial court's pre-trial scheduling order, and, thus, the more correct method of ensuring admission of the documents during the trial would have been to file a motion, Konefsky has not explained how the late identification or admission of these documents was prejudicial. Based upon the foregoing discussion, we conclude that the trial court did not err in denying Konefsky's request for a mistrial.
Request for New Trial
We agree with the Association that Konefsky has waived this issue by failing to provide any legal discussion or authority in support of the claims in his brief. We conclude, therefore, that the trial court did not err in denying Konefsky's request for a new trial.
Accordingly, we will affirm the order of the trial court.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 25th day of November, 2013, the order of the Court of Common Pleas of Montgomery County is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge