October 26, 2005
NH Supreme Court reverses award against individual directors
New Hampshire Supreme Court -Case No. 2004-0324, Tia Bastian v. Wellingwood Estates Condominium Association, Sept. 8, 2005
The plaintiff owns two condominium units in Wellingwood Estates. She challenged several late fees assessed against her, and argued that the defendant had also overcharged her for a special assessment. The trial court awarded her damages equal to the late fees and the excess special assessment, plus attorney’s fees. The court ordered that the individual members of the defendant’s board of directors be responsible for payment of the attorney’s fees, and that the defendant be prohibited from assessing its members for the cost of its own attorney’s fees.
The Supreme Court reversed the lower court's decision regarding the responsibility for the payment of attorney fees because the individual directors were not party to the action. The court upheld all of decisions of the lower court.
Posted by joewest at 3:52 PM
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