Jeanne Ann Heiser et al. v. II (2014)

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT # s 183, 184, 186

INTRODUCTION

This action was originally filed on September 23, 2008 seeking injunctive relief.   After a hearing, the court denied the request for injunctive relief.   (Memorandum of Decision, January 12, 2010, Adams, J. [49 Conn. L. Rptr. 180].)   The original plaintiffs to this action were Jeanne Ann Heiser, Gwen Aman, Robert Shiarella, Mark Burton, Ronald Kapriske, Andrew Stone, Jessica Lawless, and Mary Skinner.   Each of the plaintiffs owned a unit in Building D of the Washington Row II Preservation Society, Inc. (WRII).  The plaintiffs, Jeanne Ann Heiser, Gwen Aman, Jessica Lawless, Mary Skinner and Andrew Stone filed a motion to withdraw from this action which was granted on May 14, 2013.   The remaining plaintiffs are Robert Shiarella and Mark Burton.   The original defendants were the Board of Directors of the condominium association and individual members of the Board of Directors.   On April 25, 2012 the plaintiff filed a withdrawal as to the named individuals.   The only remaining defendant is the Board of Directors of Washington Row II Preservation Society, Inc. There have been revised and amended complaints with the present action to be addressed in the motions for summary judgment being only one remaining count alleging violations of the Conn. Gen.Stat. 47–74(b)(1) of the Connecticut Condominium Act. (Revised Complaint, April 3, 2012.)

The remaining two plaintiffs have each filed motions for summary judgment dated May 30, 2013 and June 12, 2013 (# s 183, 184) contending that the Board improperly assessed the repairs to the elevator that is located in Building D to the 21 residential unit owners of Building D. In particular, the plaintiffs contend that although the elevator in question is located solely within Building D and services this Building the assessment should be shared by all unit owners in each of the five buildings because it is a “common element.”   The defendant contends that the elevator is considered as a limited common element and thus the repairs are a special expense or special service which should be assessed only to the unit owners in Building D benefitting from its use.

Each of the plaintiffs have submitted a motion for summary judgment in their favor requesting that the court determine the assessment for the repairs and maintenance to the elevator should be divided among all unit owners in each of the five buildings.   The defendant has objected to each of the motions and submitted memorandum on July 7, 2013 in opposition to the motions.   The defendant has also filed a motion for summary judgment dated June 17, 2013 requesting judgment for the Board of Directors.   The defendant contends that not only have the plaintiffs failed to provide sufficient factual support for a summary judgment but that the facts support a judgment in favor of the defendant.   Because the motions are interrelated the court addresses the issues raised by each of the parties in this memorandum of decision.

BACKGROUND

This action involves a condominium association known as Washington Row II Preservation Society, Inc. The association consists of five separate historic buildings located on Washington Street in the City of Norwalk, Connecticut.   Each building contains commercial units on the first floor with residential units on the upper floors.   Each building contains different levels and different numbers of residential units.   Building D consists of four floors and has an elevator within the building that is the only access to the rear lobby of the building.   This is the only elevator located in any of the five buildings.   In March 2008, the board was made aware of the need for several repairs and replacements to the elevator.   This was done as part of the budget being addressed by the Association.   The cost of the repair work was approximately $63,117.   The Board assessed each of the 21 unit owners in Building D $76.00 per month beginning in March 2008 for the repairs and maintenance to the elevator.   There was no assessment levied against any of the unit owners in the remaining four buildings for the elevator repairs or maintenance.   The plaintiffs contend that the Board should assess the costs to all unit owners in each building in accordance with the Declaration and By Laws of the condominium association.

DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)   Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).  “Summary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Citations omitted;  internal quotation narks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   Accompanying the motion “the (movant] is required to support its motion with supporting documentation, including affidavits.”   Heyman Associates, No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 786, 796, 653 A.2d 122 (1995).   The burden is on the moving party to demonstrate an absence of any triable issue of material fact and “[t]o satisfy this 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 ․ 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 under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).  “When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue ․” Ramirez v. Health Net of the Northeast, Inc. 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The Condominium Act of 1976, Conn. Gen.Stat. § 47–76, provides in pertinent part:  “(b) Funds for the payment of current common expenses and for the creation of reserves for the payment of future common expenses and funds for improvements, replacements and additions shall be obtained by assessments against the unit owners in proportion to their percentage interests in the common elements ․ (c) Except as provided otherwise by the condominium instruments, any expenses associated with the maintenance, repair, renovation, restoration or replacement of any limited common element shall be common expenses ․ (d) To the extent the condominium instruments expressly so provide any other costs incurred by the association ․ for a specific service rendered to a unit owner which is different from services regularly rendered to all unit owners, shall be specially assessed against said unit owner in accordance with such reasonable provisions as the condominium instruments may make for such cases.”

The first issue raised by the parties addresses which definition, common element or limited common element fits the elevator that is contained in building D and then following whether it is a common expense or special service to specified unit owners.   The plaintiffs each contend that there is no issue of fact that the elevator is a common element which would then be categorized as a common expense to be assessed to all residential unit owners from each of the five buildings.   The defendant does not agree that the elevator is a common element as it agreed for purposes of the injunction hearing but defines it as a limited common element.   The defendant contends that in applying the bylaws, the elevator qualifies as a limited common element and thus all expenses would be classified as a special expense or special services that are assessed only against Building D unit owners.   The defendant relies in part upon the memorandum issued by the court denying the application for a temporary injunction.  (Memorandum of Decision, January 12, 2010, Adams, J.) The decision regarding the temporary injunction does not explore the scope of use but does explore the basis of the expense, that is, defining it as a special expense and the method of distributing the expense.   The present motions for summary judgment involve some but not all of the same issues and findings.   The plaintiff contends in their motion for summary judgment that the defendant Board violated C.G.S. Section 47–74(b) of the Condominium Act by assessing the costs of the elevator to only a small portion of the unit owners and not to each unit as designated in the Declaration.   The defendant contends that the Board had the authority to determine a reasonable assessment in accordance with the Declaration, that the Declaration permits an assessment to less than all of the residential unit owners and thus the elevator as a limited common element can be assessed against the unit owners in Building D after notice.

General Statute § 47–68a provides definitions applicable to the Condominium Act of 1976.   The statute defines “common elements” as all portions of the condominium other than the units.   Section 7.1 of the condominium Declaration defines common elements in the same manner to include all property other than Units.   The statute defines “Limited Common Elements” as common elements designated in the declaration as reserved for the use of a certain unit or units to the exclusion of other units.   The Declaration of the WRII follows the statutory definition and further defines the limited common elements as:  “(a) Certain Common Elements assigned to less than all the Units shown on the Plans;  (b) Except as otherwise designated on such Plans, any chute, pipe, flue, duct, wire, conduit, bearing wall, beam, column or any other fixture lying partially within and partially outside the designated boundaries of a Unit, serving only, that Unit is a Limited Common Element allocated to that Unit;  (c) Any doorsteps, stoops, entryways, porches, balconies, terraces, patios, mailboxes, name registries, all exterior doors, and windows or other fixtures and hardware and trim associated with such fixtures, designed to serve a single Unit, or certain Units to the exclusion of other Units.”   (Declaration, Section 7.2.)   The plans of the various buildings that were provided by the plaintiff (Exhibit 9) include some designations of the various locations within the buildings.   These plans highlight some of the specific area within the buildings and provide descriptions as to use.   The plans do not provide a description of the elevator as either a common element or a limited common element.   Therefore, as noted in the Declaration there is no specification of the elevator as either a common element or a limited common element.   The plans are labeled common elements but highlight only some of the areas such as the residential stairs, the corridors and the basement area for purposes of defining the common elements.   The plans in Exhibit 9 provide conflicting descriptions of the residential stair and lobby with a division of common elements and limited common elements.   The defendant attempts to link the elevator to the lobby area that abuts the elevator and the elevator shaft, the elevator mechanics and the cab as an extension which would infer that this is a limited common element.   Although the Association had knowledge of the elevator and its use in Building D upon the formation of the Association and the Declaration, it never specifically defined this use as a common or limited common element within the Declaration.   The defendant seems to argue that the definitions clearly exclude this elevator from consideration as a common element.   However, the plans also refer to the stairways to the residential unit as common elements.   The elevator in Building D does not contain a specific reference in the plans except to be noted within the drawings.   Section 7.2(c) of the Declaration provides for various fixtures to be considered as a limited common element when it serves a particular Unit or Units.  (Emphasis Added.)   The defendant argues that the referral to certain areas such as the corridors as limited common elements does not extend to this elevator because the term “limited” is to designate a distinction between the Residential and the Commercial Limited common elements.   There is no support other than speculation for this distinction.   It is also just as possible this category is based upon the limited use to certain units as noted in the Declaration.   As noted above, the plans do classify the elevator lobby as a limited common element along with the corridors in the building.   It follows that the elevator which would include the shaft, cab and machinery including the doors to the elevator would be an extension of this area and properly classified as a limited common element that it is used for some Units to the exclusion of others just like corridors lead to some units and not all.   Therefore, even though the elevator is not specifically noted as a limited common element the use and definitions support such a finding.

It does not necessarily follow that defining the elevator as a limited common element requires only that the residential units in Building D are assessed for repairs or maintenance.   The plaintiff argues that the elevator was not segregated in the Declaration as a fixture or item for special charges or special expense.   The plaintiff argues that the elevator should be treated the same as the roof expense which is assessed against all of the units.   The court, Adams, J., rejected this argument after the hearing on the temporary injunction.   This court agrees with the analysis of Judge Adams in that memorandum and specifically that a roof is unlike an elevator which is present in only one building unlike each building having a roof.   However, the court notes that the basis of the decision to assess only the unit owners in Building D for what is their rear access with the cost and the application of the Declaration and Bylaws for the assessment are areas which create a genuine issue of fact.

The statute § 47–76(d) provides that if there is a service different than that rendered to all unit owners, the condominium instruments may make reasonable provisions for a reasonable assessment.   The defendant contends that in accordance with the definitions and the declaration that specifically addresses the elevator, any repairs or maintenance should be assessed solely against the residential unit owners of Building D. In particular, the classification as a limited common element would require that it also be maintained and repaired as a special charge.   The defendant contends that the definition as a limited common element means that any expenses for the repair or maintenance are not common expenses and thus must be special charges that are assessed the unit owners who are benefitted.  “Common expense” is defined by statute to mean expenses for maintenance, repair and replacement of common elements.  “Common elements” is defined as portions of the condominium other than the units.  “Limited common elements are designated in the declaration of the association as reserved for the use of a certain unit or units to the exclusion of other units.”   As noted above, the court finds that the elevator in Building D is classified as a limited common element and thus common expenses which are assessed against all of the residential unit owners are not applicable.

The Declaration defines Special Expenses and Special Charges which are addressed as supporting the defendant's position that the expenses for the elevator should be assessed only against the unit owners in Building D. The defendant argues that the elevator repairs and maintenance are special services which are classified as special expenses that are excluded from common expenses.   The repairs at issue fit within the Declaration which defines special services as “Work, materials or services provided or performed by the Association for specific Unit Owners or for the benefit of specific Units, or classes or groups of Units, other than the services described in the Condominium Instruments to be provided to all Units, whether upon request, pursuant to a program developed by a Council, on an emergency basis or pursuant to the Declaration or Bylaws, or which are designated as a Special Service by the Board of Directors.   Art. II Section 2.1(ii).   The Declaration addresses Special Services which become a special expense pursuant to the Declaration.   Article II Section 2.1(ii).   The Declaration provides that Special Expenses shall include:  “․ (i) All costs and expenses associated with the electrical power used by and the operation, maintenance, repair and replacement of the elevator, if any, and all related equipment and improvements.”   Article VI, Section 5.5 of the By–Laws.   The defendant's argument that the expenses are a special service does not fit within the definition of a special service that could be assessed to the limited unit owners receiving the service such as the use of a pool or a cleaning service or some other special service.   If this is not a special service, the expenses are more properly termed a special expense.   A special service can be classified as a special expense but a special expense is not necessarily a special service which is limited to specific units for the service and the charges.   None of these definitions nor any specific provision within the Declaration and the Bylaws directs which unit owners as a class should be assessed for the costs of the maintenance.   Even Section 5.5 noted above does not specify who is responsible for payment, only that this may be a special expense.

The Declaration does not split the residential owners into groups based upon the particular building that they occupy.   The Declaration does limit some special expenses or special charges to one unit based upon the location of the unit and if it benefits that unit only.   This would include an amenity such as a balcony that is part of one unit or a fireplace which is within a unit.   Viewing the elevator in Building D much like the rear stairways of each of the buildings there is no specific unit but it is the same as the class of units that utilize the residential stairs or the parking area.   The plaintiff also argues that the elevator is basically the rear access for the unit owners to the garage much like the stairways in the rear of each of the other buildings.   There is no evidence that the elevator is not used by a number of individuals who seek access to the building from the back parking area.   No party has argued that it is an exclusive means of access to only a select few of the unit owners.   It is a public access from the rear of the building or the parking area to this building.   No party has provided a similar situation in which the assessment that is levied against the one class of residential unit owners is based strictly upon the limited location of the limited common element.   There is no testimony that other limited common elements such as the corridors or basement areas require assessment only as to specific unit owners that abut them or use them exclusively.   There is a genuine issue of fact as to whether the Board's assessment against only one group of the unit owners for the repair of the elevator is a reasonable exercise of its' authority based upon the declaration, bylaws and prior assessments against the Unit Owners of WRII.

The court finds that the elevator is a limited common element which repairs are a special expense but the assessment of the expense to some or all of the unit owners creates a genuine issue of fact as to whether the declaration and bylaws require the expense to be assessed against all or one class of the unit owners.   There is a genuine issue of fact as to whether the declaration, bylaws, past history and overall degree of use and value of the elevator provides a reasonable basis to assess only the unit owners of Building D for the repairs and maintenance of the elevator.   Therefore summary judgment is Denied in all respects as to each of the Motions for Summary Judgment.

THE COURT

Brazzel–Massaro, J.

Brazzel–Massaro, Barbara, J.