Opinion
Civil Action CV-21-103
12-12-2022
CAROL DETINE et al v. MARIUSZ JANKOWSKI et al
Plaintiffs represented by Peter Rodway, Esq. and Maura Horodyski, Esq. of Rodway & Horodyski Defendants Mauriz Jankowksi, Judyta Jankowski, and Liana Hawes represented by Gerald B. Schofield, Esq. of Hopkinson Abbondanza Defendant Carriage House Owners Association represented by Brendan P. Rielly, Esq. of Jensen Baird
Plaintiffs represented by Peter Rodway, Esq. and Maura Horodyski, Esq. of Rodway & Horodyski
Defendants Mauriz Jankowksi, Judyta Jankowski, and Liana Hawes represented by Gerald B. Schofield, Esq. of Hopkinson Abbondanza
Defendant Carriage House Owners Association represented by Brendan P. Rielly, Esq. of Jensen Baird
ORDER
Thomas R. McKeon, Justice
This case involves a dispute between owners of the three condominium units that make up the Carriage House Condominiums. The Plaintiffs Carol DeTine and Roger Woodman (collectively "Plaintiffs") occupy a single unit, the Defendants Mariusz and Judyta Jankowski occupy a second unit and Defendant Hawes occupies the third unit (collectively "Defendants"). Defendant Camage House Owners Association ("Association") is the condominium association for the condominium.
The Association is made up of three directors, one elected from each unit. Defendant Mariusz Jankowsi has been the director elected from unit three and Defendant Hawes is been the director elected from her respective unit. Plaintiff Carol DeTine, Woodman's co occupant, is the Director from unit two. The Association's bylaws require the presence of all three directors to constitute a quorum. Since Plaintiff DeTine's election as director for unit two, she has refused to attend. Therefore, the Association has held no meetings at which a sufficient quorum has been present to conduct Association business.
The Association's duties include maintenance and repair of the common elements. Amended and Restated Declaration, § 11.2. The unit owners must seek the Association's permission to do so. Id. The Declarations provide a method to resolve disputed between them. The Association must consent to any alterations of the heating system unless expressly allowed by the Declaration. Id.§ 11.1 (D). A unit owner may install their own heating system and the associated wiring, piping, etc. Id. 2.2(F). Nothing in Section 2.2(F) removes the requirement of an owner to seek permission of the Association to alter the common elements.
Plaintiffs' complaint asked the court to consider a declaratory judgment regarding the voting rights and the financial obligations of each of the units. The Defendant's' counterclaim seeks a variety of relief. Count I seeks declaratory relief, primarily directed to the common assessments. Counterclaim ¶ ¶ 87 - 88, 91 - 97. Count I, however, also asked that the court order that Plaintiff Carol Detine participate in the governance of the Association because the association cannot act without her participation. The remaining counts of the Counterclaim are also primarily targeted to the issues regarding the common assessments. Count VI, however, alleges that Plaintiffs have breached their fiduciary duty, including Carol Detine's failure to participate in the condominium and the relief includes ordering her to participate as a director. Count VII alleges that the Plaintiffs have breached their duty of good faith and fair dealing as directors toward the other unit owners.
In November, 2022, the Plaintiffs began work to install a heat pump to supply heat to their unit. The work involved disconnecting their unit from the common heating supply. It also included alterations to common elements. These changes came long after the Complaint and Counterclaim were filed back in 2021. The Defendants filed a motion seeking a restraining order arising from the Plaintiffs installation of the heat pump. The motion seeks two categories of relief. First, the Defendants ask the court bar any additional work on the heating system. Second, the Defendants aske the court to compel Carol Detine to attend the Association meeting so that there is a quorum allowing the Association to act.
DISCUSSION
The Plaintiffs object to the Motion asking for the restraining order. First, they argue that the relief sought in the motion is not alleged in the Complaint. Second, they argue that the Defendants have failed to meet the requirements of a restraining order.
1. Sufficient allegations in the complaint.
Unlike the plaintiffs in Koplow v. City of Biddeford, 494 A.2d 175 (Me. 1985), the Defendants here have filed a counterclaim. Therefore, the issue is whether the Defendants' counterclaim has alleged the relief that the Defendants seek here. "The notice pleading standard, requires only that the complaint give fair notice of the cause of action by providing a short and plain statement of the claim showing that the pleader is entitled to relief, and then make a demand for that relief." Nadeau v. Frydrych, 2014 ME 154, 5 (citations and quotations omitted), citing M.R. Civ. P. 8(a).
Here, the Defendants clearly place the governance of the Association, and the Plaintiffs' alleged failure to cooperate in the governance of the condominium, at issue in their counterclaim. There are allegations asking the court to order Carol Define to attend Association board meeting, a form of relief also sought here. Although it could have been better pled, the counterclaim also asked for injunctive relief. Counterclaim, ¶ 139. While there are no specific allegations seeking relief for arising from the installation of the heat pump, that claim arose from recent events.
The better practice would have been a motion to amend the counterclaim to seek the specific relief sought in the TRO Motion. Because the court would have allowed an amendment of the counterclaim arising from the recent installation of the heat pump given the recency of the events, because the court sees no benefit to requiring another round of motion practice to amend the counterclaim at this time, and because the court construes the counterclaim broadly to include issues involving Association governance, the court proceeds to the merits of the claim. M.R.Civ.P. 1.
2. Temporary Restraining Order.
The Court may grant a temporary restraining order if it concludes the following: (1) the (counterclaim) plaintiff will suffer irreparable injury if the injunction is not granted; (2) such injury outweighs any harm which granting the injunctive relief will inflict on the (counterclaim) defendant; (3) the counterclaim plaintiff has a likelihood of success on the merits: and (4) the public interest will not be adversely affected by granting the injunction. Bangor Historic Track, Inc. v. Dep't of Agriculture, 2003 ME 140, ¶ 9, 837 A.2d 129.
"Failure to demonstrate that any one of these criteria are met requires that injunctive relief be denied. . . [p]roof of irreparable injury is a prerequisite to the granting of injunctive relief." Id. (citation omitted). Irreparable injury is an injury for which money damages are not available. In cases involving possession of land, however, the court should not:
consider these factors in isolation but should weigh all the criteria together in determining whether injunctive relief was proper in the specific circumstances of each case.....The owner of the land is not compelled to part with the property at a value even though it would; be much cheaper for the encroacher to pay money damages than to restore the property.Walsh v. Johnston, 608 A.2d 776, 778.
With respect to work that impacts the common elements, the court finds that the Defendants have successfully met the criteria. The court finds that any alterations to the common elements without authority from the Association constitute an irreparable injury to the Defendant owners. An Association cannot govern if the terms of the Declaration are not respected. All the parties have a proportional interest in the common areas. Even if damages could be recovered for the alterations, that does not mean that harm was not done to any owners' property interests by the unauthorized invasion of those common elements. Therefore, the court finds that unauthorized alterations of the common elements constitutes an irreparable injury.
To the extent the work has not been done, the injury to the Defendant's interests in the properly outweighs the Plaintiffs' interest in this case. If the Plaintiffs had applied to the Association and had been unreasonably denied, the shoe may be on the other foot. The Plaintiffs' have no interest, however, in a right to alter the common areas without at first following the procedures laid out in the Declaration.
The court reserves for the final hearing, however, the fate of the alterations to the common area that have already been done. The Defendant's interests in the common element have already been impaired. Before balancing the equities with respect to the work that has already been done, the court awaits testimony at the final hearing in order to fashion an appropriate remedy, if any.
With respect to alterations to the common area, the court finds that it is more likely than not the Defendants will prevail. While the Declaration does allow the Plaintiffs to construct their own heating system, it does not effect the requirement that their plans to alter the common elements must follow the procedure laid out in the Declaration. When an owner purchases a condominium, they share an interest in common elements with others. An owner cannot unilaterally disengage from their fellow owners and alter the building. The parties have no choice but to engage with their fellow owners if they continue to own in this condominium.
The fourth factor, the public interest, is unaffected by this order.
The court does not grant the Defendant's request for injunctive relief regarding Detine's lack of participation in Association affairs. Based on the record to date, the court does not find sufficient evidence to date to compel her to attend meetings or to replace her as a director. The issue remains to be heard at the final hearing.
The court finds that no bond is required.
The entry is:
The Defendant's Motion for a Temporary Restraining Order is GRANTED in part.
The Plaintiffs are ORDERED not to alter the common elements of the condominium without permission of the Association. Any other relief sought is denied but may be raised in the final hearing of this matter.
This Order is incorporated on the docket by reference pursuant to M.R.Civ.P. 79(a).