Patrick D. Brown v. Quinnipiac Village Condominium Association, Inc. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 116

The plaintiff, Patrick Brown, commenced the present action by service of process against the defendant, Quinnipiac Village Condominium Association, Inc., on November 11, 2008.   His three-count complaint alleges the following facts.   The plaintiff is the owner of Unit 603 at the Quinnipiac Village Condominiums (condominium complex), located at 1367 Hanover Avenue in Meriden.   The defendant is the association of unit owners for the condominium complex.   The plaintiff entered into a contract to sell his unit on or about September 20, 2008 and again on or about October 8, 2008.  General Statutes § 47–270 requires a condominium seller to provide a buyer with resale documents and a condominium association to provide such documents to a condominium seller within ten business days of his request and tender of payment for them.   The plaintiff therefore requested resale documents and tendered a $125 payment for them on or about September 26, 2008.   The defendant has yet to provide the resale documents to the plaintiff.   As a result, the plaintiff has suffered damages due to his inability to sell his unit and his litigation costs and expenses.   Count two of the complaint sounds in trespass, while count three sounds in violation of the Connecticut Unfair Trade Practices Act (CUTPA).

The defendant filed an answer on January 9, 2009.   It admits all of the allegations in count one of the complaint, except for those regarding its knowledge of the ten-day time limit in § 47–270, its refusal to provide the plaintiff with the resale documents and the plaintiff's resulting damages.   It also makes the following special defense:  “The defendant exercised its right of first refusal to purchase the plaintiff's condominium unit which negated the need to provide the plaintiff with a copy of its Resale Documents since the defendant became the purchaser of the property.”

The present action was scheduled for trial by the court, Silbert, J., in its November 17, 2010 decision on the plaintiff's October 26, 2010 motion to enforce judgment.   The plaintiff then filed the present motion for summary judgment, a memorandum of law in support thereof and exhibits on December 14, 2010.   It subsequently filed a motion for permission to file a motion for summary judgment pursuant to Practice Book § 17–44 on January 3, 2011.   The motion was granted by the court, Fischer, J., on March 16, 2011.   The defendant filed an opposition to the motion and a memorandum of law in support thereof on March 18, 2011.   The court heard the matter on March 23, 2011.

DISCUSSION

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court ․” (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The plaintiff moves for summary judgment on the ground that it is entitled to a judgment as a matter of law because there is no genuine issue of material fact about whether the defendant complied with the ten-day time limit in § 47–270.   It argues with respect to the special defense that the right of first refusal upon which the defendant relies is invalid, because General Statutes § 47–224 provides that a condominium association's declaration shall contain any restrictions on the alienation of units, and the defendant's right of first refusal is contained in its bylaws, but not in its declaration.   The defendant does not challenge the plaintiff's assertion that the right of first refusal is contained in its bylaws, but not in its declaration.   The defendant instead opposes the motion by arguing that genuine issues of material fact exist with respect to the parties' obligations and rights because provisions of the Condominium Act, General Statutes § 47–67 et seq., and the Common Interest Ownership Act, General Statutes § 47–200 et seq., provide that the declaration and the bylaws are to be read symbiotically and that the bylaws may provide for any matters deemed appropriate and necessary by the defendant.   There is no factual dispute in the present motion between the parties on the issue of whether the defendant provided the plaintiff with the requested resale documents in timely fashion, per § 47–270.

Section 47–270(a) provides in relevant part:  “Except in the case of a sale in which delivery of a public offering statement is required under either this chapter or chapter 825, or unless exempt under subsection (b) of [General Statutes § ]47–262, a unit owner shall furnish to a purchaser or such purchaser's attorney, before the earlier of conveyance or transfer of the right to possession of a unit, a copy of the declaration, other than any surveys and plans, the bylaws, the rules or regulations of the association, and a certificate containing” certain information.   The version of Section 47–270(b)(1) that was operative at the time of the parties' transaction then provides in relevant part:  “Not later than ten business days after receipt of a written request from a unit owner and payment by the unit owner of a fee established by the association that reflects the actual printing, photocopying and related costs, but in no event in excess of one hundred twenty-five dollars, for the preparation of the certificate and other documents, the association shall furnish a certificate containing the information necessary to enable the unit owner to comply with this section and any other documents required by this section.”

In arguing that the defendant's right of first refusal is invalid, the plaintiff directs the court's attention to § 47–224(a)(12), which provides:  “The declaration shall contain ․ [a]ny restrictions (A) on alienation of the units, including any restrictions on leasing which exceed the restrictions on leasing units which executive boards may impose pursuant to subdivision (2) of subsection (c) of [General Statutes § ]47–244, and (B) on the amount for which a unit may be sold or on the amount that may be received by a unit owner on sale, condemnation or casualty loss to the unit or to the common interest community, or on termination of the common interest community.”   The plaintiff notes that the defendant's declaration includes a subsection entitled “Restrictions on Alienation,” which refers to amounts that may be charged or received in the disposition of a unit but does not refer to a right of first refusal.  “Declaration of Quinnipiac Village Condominium,” Pl.'s Ex. D at 12.   The defendant in turn directs the court's attention to the following statutes.   Section 47–248(b) provides:  “Subject to the provisions of the declaration, the bylaws may provide for any other matters the association deems necessary and appropriate.”   Section 47–70a is entitled “Amendment of declaration or bylaws.”   According to the defendant, the title of the statute “reflect[s] and acknowledge[s] the symbiotic relationship between the two documents.”

“It is a well established principle of statutory interpretation that we cannot accomplish a result that is contrary to the intent of the legislature as expressed in the [statute's] plain language ․ [A] court must construe a statute as written ․ Courts may not by construction supply omissions ․ The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say.”  (Internal quotation marks omitted.)  State v. Rodriguez–Roman, 297 Conn. 66, 80–81, 3 A.3d 783 (2010).  Section 47–224(a)(12) plainly and unambiguously provides that any restraints on the alienation of condominium units must be contained in a condominium association's declaration.   A right of first refusal is a restraint on alienation.   See Hare v. McClellan, 234 Conn. 581, 587 n.5, 662 A.2d 1242 (1995).

The breadth of the subject matter that may be addressed in a condominium association's bylaws, pursuant to § 47–248(b), does not alter the requirement that a condominium association's declaration contain any restraints on alienation.   Furthermore, § 47–70a is not apropos to the present motion.   Neither party raises any issues regarding amendments to the defendant's bylaws or declaration.   Reading the relevant statutes in the manner recommended by the defendant would render the mandatory language of § 47–224 superfluous.   “Interpreting a statute to render some of its language superfluous violates cardinal principles of statutory interpretation.   It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions.”  (Internal quotation marks omitted.)  American Promotional Events, Inc. v. Blumenthal, 285 Conn. 192, 203, 937 A.2d 1184 (2008).   The court therefore declines to adopt the defendant's interpretation of the relevant statutes in deciding the present motion.

In Townhouse III Condominium Assn., Inc. v. Mulligan, Superior Court, judicial district of Tolland, Docket No. CV 92 50183 (March 13, 1995, Klaczak, J.) (14 Conn. L. Rptr. 112), the plaintiff condominium association brought a foreclosure action against the defendant condominium owner.   Part of the debt alleged by the plaintiff consisted of unpaid fines charged for the defendant's possession and use of a washing machine and a dryer in his unit, in contravention of the association's rules and regulations.   One of the defendant's special defenses alleged in turn that the plaintiff's prohibition against washing machines and dryers in units was invalid because, inter alia, it was a restriction on the “use and maintenance of the units ․ designed to prevent unreasonable interference with the use of ․ units and of the common elements,” which General Statutes § 47–80 requires to be contained in a condominium association's bylaws.  Id., 113.¹  The prohibition was only contained in the plaintiff's rules and regulations, not its bylaws.   The plaintiff argued that its promulgation of the rule was proper because § 47–244(a)(1) provided that a condominium association “may ․ adopt and amend bylaws and rules and regulations.”  (Internal quotation marks omitted.)  Id. The court rejected the plaintiff's argument and concluded that § 47–244(a)(1) did “not alter the requirement that use restrictions in individual units must be contained in the bylaws.”  Id. The court in the present action similarly concludes that the relevant statutes clearly require a restriction on alienation to be included in a condominium association's declaration and that such requirement cannot be set aside simply because of general provisions regarding the content of a condominium association's bylaws.

The “right of first refusal” special defense thus fails to demonstrate that the defendant's compliance with § 47–240 was obviated by its exercise of its right to purchase the plaintiff's unit.   There is no factual dispute in the present motion between the parties on the issue of whether the defendant provided the plaintiff with the requested resale documents in timely fashion, per § 47–270.   The plaintiff is thus entitled to a judgment as a matter of law with respect to count one of the complaint, which sounds in violation of § 47–270.   For the foregoing reasons, the court grants the plaintiff's motion for summary judgment.

BY THE COURT

Richard E. Burke, Judge

FOOTNOTES

FN1. Section 47–80(c)(8) provides:  “The bylaws shall provide for the following ․ such restrictions on and requirements respecting the use and maintenance of the units and the use of the common elements as are not set forth in the declaration, designed to prevent unreasonable interference with the use of their respective units and of the common elements by the several unit owners.”   The court notes that § 47–80(c)(9) provides:  “The bylaws shall provide for the following ․ such provisions governing the alienation, conveyance, sale, leasing, purchase, ownership and occupancy of units as are deemed desirable.”   Given the mandatory language contained in § 47–224(a)(12), however, as well as its specific reference to restrictions ․ on alienation” (as opposed to “provisions governing ․ alienation”), the court concludes that § 47–80(c)(9) does not support the defendant's argument..  FN1. Section 47–80(c)(8) provides:  “The bylaws shall provide for the following ․ such restrictions on and requirements respecting the use and maintenance of the units and the use of the common elements as are not set forth in the declaration, designed to prevent unreasonable interference with the use of their respective units and of the common elements by the several unit owners.”   The court notes that § 47–80(c)(9) provides:  “The bylaws shall provide for the following ․ such provisions governing the alienation, conveyance, sale, leasing, purchase, ownership and occupancy of units as are deemed desirable.”   Given the mandatory language contained in § 47–224(a)(12), however, as well as its specific reference to restrictions ․ on alienation” (as opposed to “provisions governing ․ alienation”), the court concludes that § 47–80(c)(9) does not support the defendant's argument.

Burke, Richard E., J.