Congress Street Condominium Association, Inc. v. Anderson

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CONGRESS STREET CONDOMINIUM ASSOCIATION,
INC. v. FREDERICK L. ANDERSON ET AL.
(AC 35601)
Gruendel, Lavine and Alvord, Js.
Argued January 21—officially released March 24, 2015
(Appeal from Superior Court, judicial district of
Hartford, Robaina, J. [objection to request for leave to
amend]; Dubay, J. [judgment].)
Eric D. Coleman, for the appellant (named
defendant).
Thompson G. Page, for the appellee (plaintiff).
Opinion
ALVORD, J. In this action to foreclose a statutory lien
for unpaid common charges and fines, the defendant
Frederick L. Anderson appeals from the judgment of
strict foreclosure rendered by the court in favor of the
plaintiff, Congress Street Condominium Association,
Inc.1 On appeal, the defendant claims that the court
improperly failed to conclude that the plaintiff’s assess-
ment of fines was invalid because the plaintiff did not
afford the defendant a hearing prior to the imposition
of those fines.2 We agree and, accordingly, reverse the
judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. In 2002, the defendant acquired
title to 69A Congress Street, a condominium unit in
the Congress Street Condominium (condominium) in
Hartford, together with garage unit G44. On June 10,
2009, the plaintiff, a Connecticut corporation comprised
of the unit owners of the condominium, filed an action
against the defendant to foreclose a lien for ‘‘common
expense assessments and fines’’ pursuant to General
Statutes § 47-258 (a) and (j).3 On July 20, 2009, the
defendant filed an answer responding to the allegations
in the complaint. On February 2, 2010, the defendant
filed a request for leave to amend with an amended
answer that included special defenses and a counter-
claim. On February 23, 2010, the plaintiff filed a motion
to strike the defendant’s special defenses and counter-
claim, which was granted by the court on March 30,
2010.
On March 29, 2010, the plaintiff reclaimed its pre-
viously filed motion for summary judgment as to liabil-
ity only, and a hearing was held on April 12, 2010.
Instead of filing an opposition to the motion for sum-
mary judgment at that time, the defendant filed a second
request for leave to amend his answer. The second
amended answer contained a special defense alleging
equitable estoppel and an amended counterclaim alleg-
ing infliction of emotional distress. The plaintiff filed
an objection to the defendant’s second request, claiming
that it was untimely. On April 16, 2010, the defendant
filed a memorandum of law in opposition to the plain-
tiff’s motion for summary judgment arguing that there
existed genuine issues of material fact and raising the
same issues as those alleged in his second amended
answer.
On April 26, 2010, the court, Aurigemma, J., granted
the plaintiff’s motion for summary judgment as to liabil-
ity only and sustained the plaintiff’s objection to the
defendant’s request for leave to amend his answer. After
the court, Hon. Robert Satter, judge trial referee, ren-
dered a judgment of strict foreclosure, the defendant
appealed, claiming that the summary judgment was
improper because the court failed to credit the special
defense of equitable estoppel as a legally viable basis
for his claim that the plaintiff invalidly levied fines
against him. This court agreed that the summary judg-
ment was improperly rendered, reversed the judgment
and remanded the case to the trial court for further
proceedings. Congress Street Condominium Assn.,
Inc. v. Anderson, 132 Conn. App. 536, 544–45, 33 A.3d
274 (2011).
On remand, before the commencement of the trial,
the defendant filed a third request for leave to amend
his answer that included four special defenses and a
counterclaim. The defendant’s proposed second special
defense alleged that the imposition of the fines against
him violated the provisions of the condominium’s decla-
ration and bylaws because he had not been afforded a
hearing. The plaintiff filed an objection to the defen-
dant’s request, claiming that the request was contrary
to this court’s remand order. The plaintiff argued that
the alleged failure to conduct a hearing had not pre-
viously been raised and that the defendant was limited
to his special defense of equitable estoppel on remand.
The court, Robaina, J., sustained the plaintiff’s objec-
tion to the defendant’s third request for leave to amend
his answer without an explanation.
At the time of trial, the court, Dubay, J., appeared
to agree with the plaintiff’s position that the court was
bound by Judge Robaina’s ruling that limited the defen-
dant to his special defense of equitable estoppel. Never-
theless, as noted by plaintiff’s counsel, Judge Dubay
permitted some testimony that related to the defen-
dant’s proposed second special defense, which alleged
that the plaintiff failed to conduct a hearing prior to
the imposition of fines.4 The defendant and Gerald Gin-
gras, an officer of the plaintiff association, both testified
that the plaintiff did not conduct a hearing before levy-
ing fines against the defendant for his failure to comply
with certain provisions of the condominium’s decla-
ration.5
In its posttrial brief, the plaintiff stated that any
alleged harm from the failure to afford the defendant
a hearing ‘‘to present substantive arguments and evi-
dence’’ was ‘‘speculative,’’6 and that the defendant had
an opportunity to present his evidence on April 12, 2010,
at the hearing on the plaintiff’s motion for summary
judgment.7 The plaintiff, in its proposed orders to the
trial court, therefore requested that the amount of the
fines be calculated from the date of the hearing on the
motion for summary judgment rather than March 10,
2009, when the plaintiff first notified the defendant that
fines were being assessed at $12 for each day that the
violation continued. Judge Dubay, after determining
that the fines ‘‘were validly assessed,’’ awarded the
amount requested by the plaintiff in its proposed orders.
This appeal followed.
The defendant claims that the court improperly deter-
mined that the fines ‘‘were validly assessed’’ against him
because the evidence showed that the plaintiff failed to
comply with the requirement of a hearing prior to the
imposition of fines. We agree.
General Statutes § 47-244 (a) (11) provides that a unit
owner’s association ‘‘[m]ay impose charges or interest
or both for late payment of assessments and, after
notice and an opportunity to be heard, levy reasonable
fines for violations of the declaration, bylaws, rules
and regulations of the association.’’ (Emphasis added.)
Section 5.2 of the plaintiff’s bylaws provides in relevant
part: ‘‘By resolution, following Notice and Hearing, the
Executive Board may levy a fine of up to $50 per day
for each day that a violation of the Instruments or
Rules persists after such Notice and Hearing.’’ (Empha-
sis added.) Section 22.2 of the condominium’s declara-
tion provides in relevant part: ‘‘Whenever the
Instruments require that an action be taken after ‘Notice
and Hearing,’ the following procedure shall be
observed: The party proposing to take the action (e.g.,
the Executive Board, a committee, an officer, the man-
ager, etc.) shall give written notice of the proposed
action to all Unit Owners or occupants of Units whose
interest would be significantly affected by the proposed
action. The notice shall include a general statement of
the proposed action and the date, time and place of
the hearing. At the hearing, the affected person shall
have the right, personally or by a representative, to
give testimony orally, in writing or both (as specified
in the notice), subject to reasonable rules of procedure
established by the party conducting the meeting to
assure a prompt and orderly resolution of the issues.’’
(Emphasis added.)
Although the plaintiff appears to characterize the
holding of a hearing as being a mere formality, we
conclude that providing the defendant an opportunity
to be heard was expressly required by our statutes
and the plaintiff’s condominium documents before the
plaintiff could impose fines against him. See General
Statutes § 47-244 (a) (11). It is undisputed that the defen-
dant, although provided with notice of an alleged viola-
tion of the condominium’s declaration, never was
afforded a hearing by the plaintiff. ‘‘[A]dministrative
hearings . . . are informal and governed without nec-
essarily adhering to the rules of evidence or procedure.
. . . Nonetheless, administrative hearings must be con-
ducted in a fundamentally fair manner so as not to
violate the rules of due process. . . . A fundamental
principle of due process is that each party has the right
to receive notice of a hearing, and the opportunity to
be heard at a meaningful time and in a meaningful
manner.’’ (Internal quotation marks omitted.) Passa-
lugo v. Guida-Seibert Dairy Co., 149 Conn. App. 478,
484 n.6, 91 A.3d 475 (2014). ‘‘Due process of law requires
not only that there be due notice of the hearing but
that at the hearing the parties involved have a right to
produce relevant evidence, and an opportunity to know
the facts on which the agency is asked to act, to cross-
examine witnesses and to offer rebuttal evidence.’’
(Internal quotation marks omitted.) Unistar Properties,
LLC v. Conservation & Inland Wetlands Commission,
293 Conn. 93, 124–25, 977 A.2d 127 (2009).
‘‘[This] court may reverse . . . the decision of the
trial court if it determines that the factual findings are
clearly erroneous in view of the evidence and pleadings
in the whole record, or that the decision is otherwise
erroneous in law.’’ (Internal quotation marks omitted.)
Argentinis v. Fortuna, 134 Conn. App. 538, 559, 39 A.3d
1207 (2012). The trial court, having heard evidence that
the defendant was not afforded a hearing before the
plaintiff imposed fines against him, improperly con-
cluded that the fines ‘‘were validly assessed.’’
The judgment is reversed and the case is remanded
with direction to render judgment for the defendant.
In this opinion the other judges concurred.
1
The condominium unit at issue was subject to two mortgages. The mort-
gagees, as subsequent encumbrancers, were named as additional defendants
in this action, but they are not parties to this appeal. We therefore refer in
this opinion to Anderson as the defendant.
We also note that the defendant paid his delinquent common charges.
This appeal concerns only the fines that the plaintiff levied against him.
2
The defendant raises several other claims that we need not address
because our resolution of this claim is dispositive.
3
General Statutes § 47-258 (a) provides in relevant part: ‘‘The association
has a statutory lien on a unit for any assessment attributable to that unit
or fines imposed against its unit owner. . . .’’ The plaintiff is an ‘‘association’’
pursuant to the Common Interest Ownership Act, General Statutes § 47-200
et seq.
4
There is no claim by the plaintiff that Judge Dubay improperly exceeded
the scope of this court’s remand order. See footnote 6 of this opinion.
5
The plaintiff claimed that the defendant violated the condominium’s
declaration when he replaced a large exterior window in his condominium
unit with a door, providing him with access to an adjacent porch.
6
Plaintiff’s counsel concedes on appeal that the defendant had not been
afforded a hearing prior to the plaintiff’s imposition of fines. The plaintiff
claims, however, that the defendant eventually had his hearing when this
action was tried before Judge Dubay. The plaintiff argues that Judge Dubay
allowed the defendant to present evidence regarding the lack of a hearing
despite Judge Robaina’s ruling that denied the defendant’s third request to
revise his answer. For that reason, the plaintiff claims that its failure to
provide the requisite hearing was harmless.
7
We note that testimonial evidence by the defendant, which would have
been permitted at a hearing before the plaintiff, would not have been proper
at a hearing on a motion for summary judgment. ‘‘A summary judgment
should be summary; that is, made in a prompt, simple manner without a
full-scale trial. The opposition to such a motion may include the filing of
affidavits or other documentary evidence; Practice Book § 17-45; but does
not include the live testimony of any witnesses.’’ Braca v. Utzler, 134 Conn.
App. 460, 463 n.4, 38 A.3d 1249 (2012), cert. denied, 308 Conn. 927, 64 A.3d
333 (2013).