Opinion
No. HHB CV 09 5013939 S
July 26, 2011
MEMORANDUM OF DECISION
On July 7 and July 12, 2011, this action was tried to the court. Thereafter, the parties submitted position statements or briefs. The following facts were found by a preponderance of the evidence.
The plaintiff DP Condominium Association, Inc. [the association] is a two-unit duplex located in Berlin, Connecticut. The plaintiff Andrea Wilson is the owner of Unit 1, located at 99 Cole Lane and is the treasurer of the association. Following her husband's death, Mrs. Wilson became the president of the association as well. The defendants, Joseph Piorkowski and Laurie Piorkowski are the owners of Unit 2, located at 91 Cole Lane. Laurie Piorkowski is the secretary of the association.
Over the course of the past few years, the relationship between Mrs. Wilson and the defendants has deteriorated. Primarily, this is due to the utter failure of the defendants to participate in or contribute to the maintenance of the association and its property. In particular, the defendants have failed or refused to pay their share of the annual corporation filing fees, the maintenance of the grounds, including spring and fall clean up, snow removal, landscaping and tree limb removal and repair of the common elements. These expenses have been paid solely by Mrs. Wilson.
The shared roof was in need of repair and replacement. The defendants refused to pay this common expense. Moreover, the defendants refused to allow the roofing contractor access to their unit to determine the extent of the damage and document a baseline of water damage conditions or to facilitate repair of the roof in violation of General Statues §§ 47-74(b)(6) and 47-249(a). The cost of the roof was borne solely by Mrs. Wilson.
The association's property insurer expressed concern over the deteriorating condition of the units and requested access to the defendants' unit and garage to inspect and recommend repairs. The defendants failed and refused to allow access and refused to perform recommended repairs, in violation of General Statues § 47-74(b)(6), causing the insurer to decline to renew its policy. The association was caused to obtain replacement insurance at a much higher rate. Due to the continued lack of cooperation and response of the defendants, the rates of this policy were due to increase significantly, causing the association to seek a third insurer, a gain at a much higher premium. The recommended repairs of this new insurer have not been undertaken by the defendants and this third policy is also in jeopardy due to the recalcitrance of the defendants. The insurance premiums have been paid solely by Mrs. Wilson.
The defendants, who are self-represented, are the first and only owners of their unit. At the time of purchase, they were, and continue to remain, under the impression that they own "their own home" free and clear of any encumbrances or responsibilities to the association or the other unit owner. To a certain extent, the defendants are correct. "Each unit owner shall be entitled to the exclusive ownership and possession of his unit." General Statutes § 47-74(a). However, the defendants are also bound by Chapter 825 of the General Statutes. General Statutes §§ 47-75(a), 47-86. See also, General Statutes § 47-249.
The defendants are of the mind that, while they once cooperated with the Wilsons and their predecessors in interest as to maintenance of the common elements, they are not obligated to continue to cooperate. That mindset is contrary to the association bylaws and General Statues § 47-74(b)(5). The court finds the defendants are in violation of General Statutes Section 47-75(a).
Mrs. Wilson retained counsel who made several attempts to gain the defendants' cooperation in the maintenance, repair and finances of the association, to no avail. Therefore, in her capacity as president and treasurer of the association, Mrs. Wilson gave notice on June 15, 2010 to the defendant of a special meeting of the association, scheduled for July 1, 2010. Plaintiffs' Exhibit 26.
On the day prior to the scheduled meeting, the defendants hand delivered a letter to Mrs. Wilson's attorney, stating, inter alia, that they were not available to attend the meeting, that the association had never in the past had any meetings of any kind and that they had "no interest in doing so." Plaintiffs' Exhibit 27. The meeting was conducted in the absence of the defendants and the minutes were sent to the defendants together with a letter from the plaintiffs' attorney urging the defendants to take an active role in the management of the association and requesting dates and times that the defendants might be available for another meeting. Plaintiffs' Exhibit 28. No response was made by the defendants.
At the special meeting, the association, through Mrs. Wilson, its president, established a reserve account and monthly condominium fees. Id. To date, the defendants have made no payment of either payment to the reserve account or monthly fees.
With the continued lack of cooperation or response from the defendants, the plaintiffs filed suit, presumably pursuant to General Statutes § 47-75. The operative complaint (113.00) is dated July 19, 2011 and is in seven counts.
The plaintiffs' complaint is devoid of any statutory reference. The plaintiffs have failed to comply with § 10-3(a) of the Practice Book, which states in relevant part, "When any claim made in a complaint . . . is grounded on a statute, the statute shall be specifically identified by its number." The court makes its best effort to discern the statutory basis of the claims of the plaintiffs but does so by conjecture.
At the time of trial, the operative complaint was one dated April 26, 2011 (111.00). The court ordered the plaintiffs to file an amended complaint which delineates the relief requested for each respective count. This complaint (113.00) was filed on July 19, 2011.
FIRST COUNT ("Derivative Action in Specific Performance")
The first count seeks specific performance of the defendants to repair the roof of the duplex. The testimony of Mrs. Wilson was that the roof has now been repaired. As the roof is a common element of the property, General Statutes §§ 47-68a(e), 47-202(6); Plaintiffs' Exhibit 1, declaration of DP Condominium, § 1.5, the cost of its repair is to be borne equally by the unit owners. General Statutes § 47-74(b)(5), Plaintiff's Exhibit 1. The total cost of repair to the roof was $23,800.00. One-half of this expense, $11,900, is awarded as damages to the plaintiff, Andrea Wilson, against the defendants in the Seventh Count pursuant to the doctrine of unjust enrichment.
The plaintiffs' claim for expenses associated with the reshingling of a detached garage in the amount of $1,850.00 was withdrawn by the plaintiffs during the course of the trial.
The plaintiffs, in their trial brief, argues that unless the court should compel the defendants "to allow the association and/or its contractors to enter the [Unit 2] garage or other common elements located at[,] around or above Unit #2 for purposes of the repair, maintenance and/or replacement of the structural and nonstructural portions of the Defendants' garage and other common elements, the common elements will continue to deteriorate." However, the plaintiffs do not seek such order of the court in the first count, which merely refers to repair of the roof. The roof has been repaired, rendering the requested relief in the first count moot.
The plaintiffs have the authority to have access to the defendants' garage unit pursuant to General Statutes § 47-74(b)(6) but have failed to request such relief in this count.
Mootness implicates the court's subject matter jurisdiction and is thus a threshold matter for the court to resolve. In re Emoni W., 129 Conn.App. 727, 732 (2011). "Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties." (Internal quotation marks omitted.) Curley v. Kaiser, 112 Conn.App. 213, 229, 962 A.2d 167 (2009). The court, therefore, dismisses the first count for lack of an actual controversy.
CT Page 16740
SECOND COUNT (Declaratory Judgment)
The second count seeks a declaratory judgment "requiring the Court's intervention and determination of the rights and liabilities of the parties and the reformation of the Declaration [of DP Condominium] which was drafted in error by not providing a mechanism to break voting deadlocks." The court declines to provide such relief pursuant to General Statutes § 52-29.The court does not find this controversy to be justiciable. The plaintiffs have demonstrated their ability to conduct the business of the condominium association despite, and more particularly because of, the refusal of the defendants to participate in the association's business. While there may be no mechanism for resolution of a voting deadlock, there is no evidence that any deadlock has occurred to date and, with the lack of participation of one of the two voting entities, the remaining entity has the wherewithal to make any amendment to the bylaws she may wish, including the one proposed to the court, provided that all notice requirements have been met. Plaintiffs' Exhibit 48, Bylaws of DP Condominiums Association, Inc., §§ 3.9, 3.10, 3.11; General Statutes § 47-251. In fact, it is surprising that the association did not do so when creating a reserve account and a monthly fee.
The court declines to recast the association bylaws in part or in whole, when the association and its one participatory member have demonstrated their ability to do so on their own. The request for a declaratory judgment in the second count is denied.
THIRD COUNT (Injunction)
The third count seeks injunctive relief by Mrs. Wilson against the defendants for their failure to participate in myriad ways with the declarations and bylaws of the association, including the failure to pay common charges and contribute to the reserve account. Again, the plaintiffs have failed to assert the statutory basis for this claim, which the court presumes to be General Statutes § 47-75 and/or § 47-244. The association does not seek injunctive relief. Mrs. Wilson has taken it upon herself to make payments on behalf of the defendants and the association in order to preserve her own interests in the association and her unit.
At trial, Mrs. Wilson established the equitable necessity for a permanent injunction. The defendants' continued failure to allow inspection and to perform needed repairs has jeopardized the insurability of the association, which is mandated by General Statutes §§ 47-83 and CT Page 16741 47-255. The defendants are ordered (1) to pay the common charges and reserve account assessments in accordance with the bylaws of the association, pursuant to General Statutes § 47-75(a); (2) to allow the association and its representatives reasonable access to their unit, including the attached garage for the purpose of inspection and repair of the common elements to the satisfaction of the insurer upon forty-eight hours written notice of the association; and (3) to perform necessary repairs to their unit, including the attached garage to ensure continued insurability of the association within 90 days of the date of this memorandum of decision.
FOURTH COUNT (Negligence)
The fourth count alleges negligence on the part of the defendants by not participating in the business of the association, by not complying with the declaration or bylaws, by failing to repair the damages to their garage, by refusing to allow access to the garage area for inspection and by not paying common charges and contributing to the reserve account. The court does not find that the defendants have been negligent in these actions. The evidence adduced at trial was that the defendants intentionally committed these acts. Additionally, this conduct is more properly the subject of the Seventh Count, discussed below. The court finds in favor of the defendants against the plaintiffs as to the fourth count.
FIFTH COUNT ("Failure to Pay Common Expenses and Foreclosure of the Association Lien")
Despite the caption of the fifth count, there is no reference to a lien within the allegations of this count. The court presumes from the caption, the fifth count may have been intended to be based on General Statutes § 47-82 and or § 47-77. However, in the fifth count, Mrs. Wilson alleges she was forced to pay various expenses on behalf of the association as a result of the defendants' failure to pay their share. Essentially, what Mrs. Wilson is seeking is reimbursement of one-half of the monies she has paid out on behalf of the association for necessary repairs and maintenance, perhaps on a theory of quantum meruit.
Despite the caption of the Seventh Count of quantum meruit, that count appears to be a cause of action of unjust enrichment. The court treats the Fifth Count as sounding in quantum meruit and the Seventh Count as sounding in unjust enrichment.
For Mrs. Wilson to recover on the basis of quantum meruit, the court must find the absence of an express contract. Schreiber v. Connecticut Surgical Group, P.C., 96 Conn.App. 731, 736, 901 A.2d 1277 (2006). Quantum meruit is a form of the equitable remedy of restitution by which a plaintiff may recover the benefit conferred on a defendant in situations where there is no express contract. Biller Associates v. Rte. 156 Realty Co., 52 Conn.App. 18, 30, 725 A.2d 398 (1999), aff'd, CT Page 16742 252 Conn. 400, 746 A.2d 785 (2000). The court finds there was no express contract. Neither was there an implied contract. The defendants have simply refused to make any payments of their share or cooperate in any way with Mrs. Wilson.
The court awards the association its damages for common expenses claimed in the sixth count and damages to Mrs. Wilson in the seventh count. The judgment of the awards is enforceable as a lien. Because of the infirmity of the allegations of this count and because the relief sought is granted elsewhere in this judgment, the court declines to find in favor of the plaintiffs on the fifth count. They have their relief elsewhere in this judgment. The court finds in favor of the defendants on the fifth count.
SIXTH COUNT (Breach of Contract)
The plaintiffs claim the defendants were obligated by the "condominium documents" to pay their share of the condominium expenses and failed to do so. The court finds this to be proven. Mrs. Wilson appears to be personally claiming damages on a breach of contract for the expenses she has incurred in paying the defendants' share for repairs and maintenance. However, she has no contract with the defendants and her claim must fail.
The condominium association, however, does have a contractual relationship with the defendants. The court finds that, on July 1, 2010, at a special meeting duly noticed pursuant to its bylaws, the association established a reserve account and required the unit owners to pay $100 per month into that account. In addition, the association established monthly condominium fees of $410. Both obligations were effective as of August 1, 2010. The court finds that the defendants have failed to pay either obligation to date and finds damages through July 2011 to total $6120.00, pursuant to General Statutes §§ 47-77(a), 47-244(a) and 47-258(a). Judgment enters in favor of the plaintiff condominium association against the defendants in that amount.
SEVENTH COUNT ("Quantum Meruit")
Although the plaintiffs caption the seventh count as a cause of action of quantum meruit, it is really a cause of action of unjust enrichment. The court finds that the defendants wrongfully refused to pay their share of the common expenses for maintaining the legal status of the association, as well as maintaining and repairing the property. These costs were incurred by Mrs. Wilson, rather than the association. The court finds that one-half of these fees constitute unjust enrichment to the defendants:
Association fees
Filing fees to the Connecticut Secretary of State for the years 2008 through 2010 total $125.00.
Repairs to the roof
As stated in ruling on the first count, the roof is a common element of the property. The cost of its maintenance and repair is to be borne equally by the unit owners. The defendants refused to participate in any respect as to the inspection and repair of the roof. As a result of the condition of the roof, there was damage to the ceiling of Mrs. Wilson's unit. However, no evidence was obtained as to the costs of repair if any and, therefore, no damages are awarded to the plaintiffs for that damage. The total cost of repair to the roof was $23,800.00.
Tree and limb removal
Trees and branches were blocking the sun and causing damage to the roof. These expenses are common expenses totaling $3,174.70.
Repair of facade
The exterior facade of the garage attached to Unit 1 was repaired at a cost of $1,200. To the extent that the defendants' garage, Unit 2, needs similar repair, that is a cost to be borne by the association as a common expense.
Landscaping/Snow removal
Spring and fall clean up in 2010 and 2011 to date totals $821.50. No award is made for the claimed costs of snow removal as Mrs. Wilson arranged only for removal of her portion of the driveway, together with a portion of the driveway which allowed her access.
Insurance premiums
The defendants contest the increased cost of insurance premiums. The court finds that the defendants caused these increased premiums and the cancellation of policies due to their recalcitrance. The defendants have failed to contribute to the cost of the premiums for the last two years. Premiums through February 1, 2012 total $5,659.00.
The total expense incurred by Mrs. Wilson on behalf of the association is $34,780.20. One-half of the expense, $17,390.10, is awarded as damages to the plaintiff, Andrea Wilson, against the defendants in the seventh count. No award of damages is made to the plaintiff association on this count as it did not pay these expenses.
WHEREFORE,
As to the first count, the court enters judgment of dismissal.
As to the second count, the court denies the request for a declaratory judgment.
As to the third count, the court grants the plaintiff injunctive relief. The defendants are ordered to pay the monthly maintenance and reserve fees to the association. The defendants are further ordered to allow the association and its representatives access to their unit, including the attached garage for the purpose of inspection and repair of the common elements. The defendants are ordered to perform necessary repairs to their unit, including the attached garage to ensure continued insurability of the association within 90 days of the date of this memorandum of decision.
As to the fourth count, the court enters judgment in favor of the defendants.
As to the fifth count, the court enters judgment in favor of the defendants.
As to the sixth count, the court enters judgment in favor of the plaintiff, DP Condominium Association, Inc. against the defendants Joseph Piorkowski and Laurie Piorkowski in the amount of $6,120.00.
As to the seventh count, the court enters judgment in favor of the plaintiff, Andrea Wilson against the defendants, Joseph Piorkowski and Laurie Piorkowski and awards damages in the amount of $17,390.10.
Pursuant to General Statutes § 47-75, reasonable attorneys fees are found to be $6,000.00 and are awarded to the plaintiffs as are costs of suit. No pre-judgment interest is awarded. Post-judgment interest is awarded pursuant to General Statutes § 37-3a.
Lastly, the court orders the association to offer a basic education program to the unit owners as set forth in General Statutes § 47-261a within the next 90 days.