May 9, 2005
Association's Fees Void and Unenforceable
Surrey Condominium Association, Inc., Plaintiff-Appellant v. Imogene Webb, Individually and as Personal Representative of Delbert Webb, Deceased, Defendant-Respondent. [Missouri Circuit Court Southern Area Case Number: 25986]
Surrey Condominium Association, Inc. ("the Association") sued Imogene and Delbert Webb ("the Webbs") to recover unpaid maintenance fees for the years 2001 and 2002 in the amount of $9,700 and to enforce an assessment lien against their condominium.(FN1) Delbert was deceased when the Association’s petition was filed, so Imogene was substituted for Delbert in her capacity as the personal representative of Delbert’s estate. To simplify matters, we will refer to both parties-defendant as Imogene.
After a bench trial, the court decided the Association’s maintenance fees and the assessment lien were void and unenforceable. Judgment was entered in Imogene’s favor, and the lien was removed from her property. The Association has appealed. It argues the trial court’s ruling permits Imogene to avoid paying her fair share of common expenses. We disagree. The Association sued Imogene to recover unpaid maintenance expenses. Because the Declaration of Condominium ("Declaration") does not authorize the assessment of maintenance fees against a unit owner like Imogene, we affirm. Opinion
Posted by joewest at 10:15 AM
May 2, 2005
Deborah H. Walton v. Claybridge Homeowners Assoc., Inc. (4/12/05 IndCtApp)
Riley, Judge
* * * In 2000, Walton purchased a lot in a subdivision known as Claybridge at Springmill, in Hamilton County. At that time, the developer had already constructed an entryway wall and wood fence on Walton’s lot and landscaped around them as permitted by certain easements. Pursuant to a declaration of covenants and restrictions (DCR), to which Walton’s lot was subject, the HOA was required to maintain the easements and any plantings on them and maintain and replace fences within any landscape easement on an owner’s lot. Walton, however, prevented the HOA from performing its obligations.
As a result, the HOA sought a permanent injunction against Walton. The trial court, finding that Walton had interfered with the HOA’s obligation to maintain the easements, granted the HOA’s request. Having concluded that the HOA was entitled to injunctive relief, the trial court then concluded that, pursuant to Section 17 of the DCR, the HOA was a prevailing party “entitled to recover all costs of enforcement and attorney fees incurred . . . .” The trial court further concluded that the HOA was permitted to “request a hearing on its costs, attorney fees and other damages, if any.” * * *
Based on the foregoing, we find that the trial court did not err when it awarded appellate attorney fees and costs. Because the issue of appellate attorney fees was not considered by this court in its prior appellate opinion, it is not the law of the case. With regard to costs incurred on appeal, the provision of the DCR awarding a prevailing party “all costs of enforcement,” and not Appellate Rule 67, governed the HOA’s recovery. The trial court’s award of attorney fees and costs to the HOA for preparing and defending the fee petition was also not erroneous. The provision of the DCR awarding the HOA attorney fees did not violate public policy and Walton has failed to show that the amount awarded was unreasonable. Affirmed.
CRONE, J., and ROBB, J., concur.
From Indiana Law Blog
Posted by joewest at 11:14 AM