Ridgeview Terrace Condominium Association, Inc. v. Webster Bank et al. (2012)

MEMORANDUM OF DECISION

This action was commenced by the plaintiff, the Ridgeview Terrace Condominium Association (“Association”), against the defendants, Webster Bank (“Bank”) and three individual unit owners at the Ridgeview condominium, Mildred Linton, Rose Lagasse and Malinda Mable (“unit owners”).

Although the plaintiff's amended complaint dated June 16, 2011 alleges that the Bank, which was the depository of the Association funds, was negligent and breached its fiduciary responsibility to the Association and the three individual unit owners on the basis that they were not authorized to become signatories of the Association's accounts since they were not duly elected members of the board of the Association, the dispute the parties have agreed to litigate before the undersigned are the defendants' Special Defenses and Counterclaims contained in its pleading dated September 16, 2011.¹  The unit owners allege that all of the members of the board of directors in office prior to meetings that occurred in April and May of 2011 were removed from office and that the unit owners duly elected nine new members of the board of directors.²

The issue to be resolved in the litigation before the undersigned is whether the meetings of April and May 2011 were duly called and complied with the provisions of the Association's bylaws and the existing laws of this state, and whether the old board members were lawfully removed and the new board members, as claimed by the unit owners, were lawfully elected.

For whatever reason, a group of unit owners in the Ridgeview Condominium, unhappy with the leadership of the existing board of directors of the Association, decided to begin the process to replace three members of the board and ultimately to replace the entire board.   The group spearheaded by Gary Rudenis, a unit owner, initially circulated a petition dated February 5, 2011, to remove three members of the then current board.   When it was pointed out to Rudenis that some unit owners had printed their names on the petition as opposed to a cursive signature, he re-circulated a new petition dated February 21, 2011, (first petition) so that those who had printed their names could sign their names in cursive.  [Plaintiff's Exhibit 1.] Rudenis, who testified at trial and whose testimony the court found to be credible, said that he personally circulated the petition with one or more fellow unit owners and that he personally witnessed every signature on the petition.

In accordance with General Statutes § 47–250(a)(2), a petition to call a meeting to remove board members must contain signatures of at least 20 percent of the unit owners.   The Ridgeview complex contained 228 units.   The petition to be legally effective therefore must have a minimum of 46 signatures.   The first petition, the court finds, contained 63 validly acquired signatures, and therefore complied with the requirements of § 47–250(a)(2).³  Moreover, the court finds that the first petition was lawfully mailed to the then secretary, Patricia Longo, at the address of the Association in accordance with the bylaws of the Association.

After waiting 15 days in accordance with § 47–250(a)(2), on March 12, 2011, a special meeting notice setting a meeting date of March 28, 2011, was lawfully hand delivered and mailed to each unit owner according to the credible testimony of Rudenis.   Thereafter, because the meeting room designated in the notice to be the venue for the meeting was locked, the meeting was held in a garage directly across the street from the meeting room and in plain view of the locked meeting room.   The three members sought to be removed did not attend the meeting.   The ballots cast in person and by proxy by a vote of 74 to 6 with one abstention voted to remove Joanne Hasemann, Patricia Longo and Wayne Watts.  [Plaintiff's Exhibits 5, 6, 7.] On March 29, 2011, a notice of the results of the meeting was lawfully sent by mail or hand delivered to all unit owners according to the credible testimony of Rudenis.   The court finds that the credible testimony and evidence establish that the then existing members of the board mentioned above were lawfully removed from office.

On April 7, 2011, a second petition was circulated to the unit owners led again by Rudenis seeking to remove the remaining members of the board of directors.⁴  The second petition was circulated by Rudenis who personally witnessed the signatures of 46 unit owners who signed the petition.   As noted above, and in order to comply with § 47–250(a)(2), the petition had to be signed by 20 percent of the 228 unit owners, or, 46 owners.   As with the first petition the court accepts the credible testimony of Rudenis that the second petition was sent to the Association in accordance with § 47–261c, that on April 28, 2011, according to the credible testimony of Rudenis, he and others prepared a notice of meeting scheduled for May 9, 2011, and that notice was either hand delivered according to his testimony, or mailed to every unit owner in compliance with § 47–261c.

On the day and time stated in the notice, the meeting room designated in the notice was locked and therefore those in attendance were required to meet in a garage across from the meeting room and in the driveway, all in direct view of the closed meeting room.   The six board members sought to be removed did not attend the meeting.   By a vote of those attending the meeting in person and by proxy, 66 ballots were cast in favor of the removal;  5 were not in favor.   New members were elected and the results of the election were sent to the office of the Association dated May 17, 2011, by United Parcel Service delivery.

As to the second petition, the plaintiff claims that three of the purported unit owners who signed this petition—Joseph Danay, Afrim Frangu and Rose Lagasse—were not owners of record title and hence the second petition failed to meet the 20 percent minimum requirement needed to validly remove the six board members.

The plaintiff argues that the signature of Afrim Frangu on the second petition, on behalf of unit 192H, was invalid because his wife, Zamira, was the record owner of the unit.   Similarly, the plaintiff argues that the signature of Joseph Danay on the second petition, on behalf of unit 214A, was invalid because his wife, Joseline, was the record owner of the unit.

The Restatement of Agency provides that “a husband or wife can be authorized to act for the other party to the marital relation.”   See Restatement (Second) of Agency, § 22 (1958).   It is axiomatic that a manifestation of agency may be made by words, or other conduct including acquiescence.   See id., § 7, cmt. c;  see also LeBlanc v. New England Raceway, LLC, 116 Conn.App. 267, 276–77 976 A.2d 750 (2009).

In regard to the signature of Joseph Danay, the court finds that the testimony of his wife, Joseline Danay, credible in that she expressly gave her husband permission to sign his name on the second petition, on her behalf, as owner of unit 214A. [Transcript @ [—];  Plaintiff's trial brief @ 22].   Because Joseph Danay had the express authority of his wife to sign the second petition, the court finds that his signature was valid.

In regard to the signature of Afrim Frangu, the court finds that his wife, Zamira, impliedly authorized him to sign the second petition on her behalf as owner of unit 192H. Our Supreme Court has defined implied authority as “actual authority circumstantially proved.   It is the authority which the principal intended his agent to possess ․ Implied authority is a fact to be proven by deductions or inferences from the manifestations of consent of the principal and from the acts of the principal and [the] agent.”  (Internal quotation marks omitted.)  Gordon v. Tobias, 262 Conn. 844, 850, 817 A.2d 683 (2003);  Connecticut National Bank v. Giacomi, 242 Conn. 17, 70, 699 A.2d 101 (1997).   Here, Afrim signed the petition in the presence of Zamira, Zamira was aware that he was signing his name on her behalf as owner of unit 214A, and Zamira did not protest to him signing.   Because Afrim Frangu had the implied authority of his wife to sign the second petition, the court finds that his signature was valid.

The plaintiff next claims that the signature of Lagasse on the second petition, on behalf of unit 218H, is invalid because she had transferred her interest in the property to her son Ronald, and as a result, did not have record title to the unit at the time she signed the petition.   The plaintiff's argument that Lagasse's signature is invalid on the basis that that she was not the record title owner of the unit is unavailing.   The legal issue of record title is not dispositive of our analysis in light of this court's equitable powers.   See Schmaling v. Schmaling, 48 Conn.App. 1, 11–14 707 A.2d 339 (1998);  Cohen v. Cohen, 182 Conn. 192, 203–4, 438 A.2d 55 (1980) (concluding that record title was not determinative of ownership of property interest).   Rather, the determinative factor before this court is whether Lagasse intended to transfer a present interest in the property to Ronald.

The issue of the donative intent of a grantor is an issue of fact.  Whitney v. Whitney, 171 Conn. 23, 33, 368 A.2d 96 (1976);  Lord v. Stavrakis, 6 Conn.App. 161, 162, 503 A.2d 629, cert. denied, 199 Conn. 804, 506 A.2d 146 (1986).   Based on the facts, this court finds that Lagasse's intent was to maintain ownership of the property before transferring title to her son upon her death.   Lagasse purchased the unit in 1987 in her name, she lived in the unit continuously since that date, paid the mortgage, taxes and common charges on the unit, and about five years ago, she quit-claimed title to the unit to Ronald in case something happened to her due to her age and health.   Thereafter, Ronald died intestate and Ronald's children, who were the beneficiaries of the unit, quit-claimed the unit back to Lagasse, recognizing her ownership interest in the unit.   At no point did Lagasse surrender occupancy of the unit nor express any intent to leave her home.   Based on the circumstances and testimony of Lagasse, who has always treated the unit as her own, and her testimony that she only quit-claimed the property to her son for testamentary purposes, that is, that he would only acquire title at her death, and the fact that her son's children recognized this conditional transfer, the undersigned finds that Lagasse was the equitable owner of unit 218H and was authorized to sign as the owner of that unit.

Based, in addition, on the case law that General Statutes §§ 47–200 et seq. are to be liberally interpreted and applied;  see Fruin v. The Colonnade One at Old Greenwich Limited Partnership et al., 237 Conn. 123, 676 A.2d 369 (1996), South End Plaza Association, Inc. v. Johnson et al., 62 Conn.App. 462 (2001);  the court finds that all of the signatures that appeared on the second petition were signed by the record owners, albeit in some cases equitable owners and/or authorized agents, and that the second petition complied with all of the statutory requirements.

The plaintiff also argues that both the March and April meetings were not valid because the petition calling for the meetings did not advise the board members targeted for removal that they had a right to speak at the meeting as required by § 47–261d(b).  The plaintiffs misinterprets § 47–261d(b).  That statute merely provides that at a meeting to consider a board member's removal, the board member must be given the opportunity to speak.   The board members that were sought to be removed at the meetings in March and April did not attend the meetings and hence were not prevented from speaking.   There is nothing in § 47–261d(b) that requires that the notice of the meeting must state that if those to be removed attend, they shall have the right to speak.

The plaintiff next argues that the meetings were not held at the location specified and therefore not valid.   This argument is also not availing, and moreover, somewhat disingenuous.   One who seeks to show that he is entitled to the benefit of equity must demonstrate that he comes to court with “clean hands.”   See e.g., Lyman v. Lyman, 90 Conn. 399, 405–06, 97 A. 312 (1916).   This equitable maxim can be exercised in the discretion of the trial court.   See DeCecco v. Beach, 174 Conn. 29, 35, 381 A.2d 543 (1977).   Here, the board members sought to be removed would not unlock the condominium meeting room, making compliance with the meeting room requirement impossible.   Consequently, the court finds that the Association breached its obligation of good faith required under § 47–211.   Accordingly, this court will not afford the plaintiff the equitable relief it desires.⁵  See Pappas v. Pappas, 164 Conn. 242, 245–46, 430 A.2d 809 (1973) (denying equitable relief to plaintiff who committed fraud).

In its reply brief, the plaintiff also argues that a non-attending unit owner cannot vote at a special meeting without a proxy.   The court's recollection of the evidence was that a ballot was handed to all unit members attending in person and a ballot was attached to all unit owners attending by a validly executed proxy.   Proxy votes are permitted by § 47–252.   See also Somers W. Towne Houses v. Las Prop. LTD. P'Ship, 108 Conn.App. 426, 433, 949 A.2d 483 (2008).   In addition, the plaintiff has not identified the persons who voted at the meetings who were not unit owners.   The court finds that the plaintiff has failed to meet its burden of proof with respect to its claim that the vote of the special meeting was invalid.

The court finds, based on the preponderance of evidence which was presented at trial, that the unit owners' petitions in both March and April, and the subsequent meetings held, were valid;  and that in addition, the board members sought to be removed were properly removed, and that the elections of the new board members Rose Lagasse, Charles Thieffry, Malinda Mable, Dorothy Delong, Mildred Linton, Gary Rudenis, Nicholas Stanziano, Trystan Landin and Amy March, were valid and in accordance with the law.

Judgment

Special Defense

The court finds that the defendants, save Webster Bank, have proved the allegations of the special defense and that they constitute the duly elected Board of Directors of Ridgeview Condominium Association, Inc. by virtue of two special unit owner meetings that called for the removal of the then current board of directors, and the unit owner election of the new board members.

Counterclaim

The court finds that the defendants, save Webster Bank, have proved the allegations of their counterclaim and that they constitute the duly elected Board of Directors of the Ridgeview Condominium Association, Inc., and that all records, accounts and funds of the Association, as well as access to the Ridgeview office, be transferred to the defendant-unit owners.

Complaint:

The court orders that the complaint be dismissed.

PELLEGRINO, JTR

FOOTNOTES

FN1. Webster Bank is not a party in the unit owners' counterclaim..  FN1. Webster Bank is not a party in the unit owners' counterclaim.

FN2. The unit owners claim that the newly elected board of directors following the April and May 2011 meetings were:  Rose Lagasse, Charles Thieffry, Malinda Mable, Dorothy Delong, Mildred Linton, Gary Rudenis, Nicholas Stanziano, Trystan Landin and Amy March..  FN2. The unit owners claim that the newly elected board of directors following the April and May 2011 meetings were:  Rose Lagasse, Charles Thieffry, Malinda Mable, Dorothy Delong, Mildred Linton, Gary Rudenis, Nicholas Stanziano, Trystan Landin and Amy March.

FN3. Although the plaintiff claimed and presented evidence of a title searcher, Eric Wuerfele, that approximately 13 signatures on the first petition were not the signatures of the then record owners, credible rebuttal evidence was presented that satisfied the court that most of the claimed signatures were either signed by owners whose names had changed or were signed by a person who had the permission of the record title owner.   In any event, the plaintiff in, in its post-trial brief, has not asserted a claim that the signatures on the first petition failed to meet the minimum requirement of § 47–250(a)(2).   For this reason, the court will not address those claimed discrepancies made by Wuerfele at trial.   The court does acknowledge, however, that the plaintiff has called into question three claimed unauthorized signatures on the second petition and the court will address this issue further on in this opinion..  FN3. Although the plaintiff claimed and presented evidence of a title searcher, Eric Wuerfele, that approximately 13 signatures on the first petition were not the signatures of the then record owners, credible rebuttal evidence was presented that satisfied the court that most of the claimed signatures were either signed by owners whose names had changed or were signed by a person who had the permission of the record title owner.   In any event, the plaintiff in, in its post-trial brief, has not asserted a claim that the signatures on the first petition failed to meet the minimum requirement of § 47–250(a)(2).   For this reason, the court will not address those claimed discrepancies made by Wuerfele at trial.   The court does acknowledge, however, that the plaintiff has called into question three claimed unauthorized signatures on the second petition and the court will address this issue further on in this opinion.

FN4. Those members of the board sought to be removed by the second petition were:  Kathleen Pepe, Alice Ferraro, John Hayo, Ronda Smith, Maria Belzil and Jodi Venugopal..  FN4. Those members of the board sought to be removed by the second petition were:  Kathleen Pepe, Alice Ferraro, John Hayo, Ronda Smith, Maria Belzil and Jodi Venugopal.

FN5. The court also notes that the unit owners, despite the plaintiff's interference, did their best to comply with the meeting room requirement by holding the meeting in close proximity and within eye sight of the meeting room..  FN5. The court also notes that the unit owners, despite the plaintiff's interference, did their best to comply with the meeting room requirement by holding the meeting in close proximity and within eye sight of the meeting room.

Pellegrino, Joseph H., J.T.R.