Twin Towers Condo. Assn. v. Bel Fury Invest. Group

Nebraska Advance Sheets
TWIN TOWERS CONDO. ASSN. v. BEL FURY INVEST. GROUP 329
Cite as 290 Neb. 329
Twin Towers Condominium Association, Inc.,
a Nebraska nonprofit corporation, appellee
and cross-appellant, v. Bel Fury I nvestments
Group, L.L.C., a Nebraska limited liability
company, appellant and cross-appellee, and
Credit Bureau Services, Inc., a Nebraska
corporation, and Domina Law Group
PC, LLO, a Nebraska professional
corporation, appellees.
___ N.W.2d ___
Filed March 13, 2015. No. S-13-1047.
1. Actions: Foreclosure: Equity. A real estate foreclosure action is an action
in equity.
2. Equity: Appeal and Error. On appeal from an equity action, an appellate
court resolves questions of law and fact independently of the trial court’s
determinations.
3. ____: ____. On appeal from an equity action, when credible evidence is in con-
flict on material issues of fact, an appellate court considers and may give weight
to the fact that the trial court observed the witnesses and accepted one version of
the facts over another.
4. Statutes. Statutory interpretation presents a question of law.
5. Damages: Evidence. Whether the evidence provides a basis for determining
damages with reasonable certainty is a question of law.
6. Appeal and Error. An appellate court reviews questions of law independently of
the trial court’s decision.
7. Foreclosure: Liens. The purpose of a foreclosure proceeding is not to create a
lien, but to enforce one already in existence.
8. Statutes: Liens. A lien created by statute is limited in operation and extent by the
terms of the statute.
9. Liens: Proof. The party seeking to enforce a lien has the burden of proving every
fact essential to the establishment of the lien.
10. Courts: Assessments. Courts enforce condominium assessments only if they are
calculated in the manner required by the association’s governing documents.
11. Liens: Assessments. A condominium association’s temporary miscalculation of
assessments does not invalidate its lien for unpaid assessments.
12. Foreclosure: Liens: Judgments. In general, the holder of a lien may pursue
foreclosure without first obtaining a personal judgment on the underlying debt.
13. Foreclosure: Final Orders. A foreclosure decree is a final judgment even though
it creates a period for redemption.
14. Damages: Proof. A plaintiff does not have to prove his or her damages beyond
all reasonable doubt, but must prove them to a reasonable certainty.
15. Attorney Fees: Costs. Customarily, attorney fees and costs are awarded only to
prevailing parties or assessed against those who file frivolous suits.
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330 290 NEBRASKA REPORTS
16. Parties: Words and Phrases. A party is a prevailing party if it receives a judg-
ment in its favor.
17. Acceleration Clauses: Equity. An equity court may deny enforcement of an
acceleration clause in a condominium association’s governing documents when
application of the clause would be inequitable.
18. Foreclosure. The necessary issues to be determined by a foreclosure decree are
the execution of the agreement, the breach thereof, the identity of the real estate,
and the amount remaining due.
19. Judicial Sales: Foreclosure: Property. A foreclosure decree governs which
property is to be sold at an execution sale, regardless of the description in subse-
quent documents and notices.
Appeal from the District Court for Douglas County: Joseph
S. Troia, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Brian J. Muench for appellant.
Thomas J. Young for appellee Twin Towers Condominium
Association, Inc.
Heavican, C.J., Connolly, Stephan, McCormack, Miller-
Lerman, and Cassel, JJ.
Connolly, J.
I. SUMMARY
Bel Fury Investments Group, L.L.C. (Bel Fury), owns prop-
erty located in the Twin Towers Condominium in Omaha,
Nebraska. After Bel Fury failed to pay assessments for
this property (Unit SCB), the Twin Towers Condominium
Association, Inc. (the Association), recorded two notices of lien
and filed a foreclosure action. When the Association filed the
notices of lien and the complaint, it was levying assessments
against Unit SCB in a manner prohibited by the Association’s
governing documents. The Association discovered the error
while the foreclosure action was pending and recalculated the
assessments. The district court found that the Association had
a lien against Unit SCB for delinquent assessments and stated
that the Association could foreclose its lien if Bel Fury did not
pay the back assessments within 90 days.
On appeal, Bel Fury argues that the Association does not
have a lien because it failed to levy assessments in the manner
Nebraska Advance Sheets
TWIN TOWERS CONDO. ASSN. v. BEL FURY INVEST. GROUP 331
Cite as 290 Neb. 329
required by its governing documents. On cross-appeal, the
Association argues that the court did not award all the relief
the Association is entitled to and failed to make all the findings
necessary for a foreclosure decree.
We conclude that the Association’s initial miscalculation of
assessments did not invalidate its lien. We further conclude that
the court erred by not awarding the Association attorney fees,
not including several installments as part of the debt secured
by the lien, and failing to include a legal description of Unit
SCB in its decree.
II. BACKGROUND
1. Factual Background
The Twin Towers Condominium was created by a mas-
ter deed recorded on December 30, 1983. The “condomin-
ium regime” consisted of two 10-story towers: the “South
Tower” and “North Tower.” The master deed provides that the
Association serves as “a vehicle for the management of the
condominium.” Each unit owner is automatically a member of
the Association.
The master deed authorizes the Association to levy assess-
ments against the units under terms set forth in the bylaws.
Paragraph 12 of the bylaws provides:
Assessments against each apartment owner for such com-
mon expenses shall be made annually on or before the
fiscal year end preceding the year for which assessments
are made. The annual assessments shall be due in 12
equal, monthly payments on the first day of each month.
The assessments to be levied against each apartment shall
be such apartment’s pro rata share of the total annual
budget based upon the percentage share of the such
apartment’s basic value as set forth in the Master Deed
. . . . Assessments delinquent more than 10 days after the
due date shall bear interest at the highest legal contract
rate from the due date until paid. The delinquency of
one installment of an assessment shall cause all remain-
ing installments to immediately become due, payable
and delinquent.
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The master deed states that Unit SCB represents 1.42 percent
of the condominium’s basic value.
Bel Fury is a business engaged in real estate sales and rent-
als. Bel Fury bought Unit SCB—windowless commercial space
in the basement of the “South Tower”—in July 2004.
In February 2010, the Association hired a property man-
agement company to help manage the condominium regime.
The company’s owner, David Davis, testified that his com-
pany’s responsibilities included collecting assessments for
the Association and keeping records of payments made by
unit owners.
Davis testified that when his company “came on board” in
February 2010, the Association was levying assessments “based
on a square footage amount.” In October or November 2012,
Davis discovered that the master deed required assessments to
be calculated according to each unit’s proportional share of the
regime’s basic value. Davis informed the Association, which
“decided to go back to 2009 and make everything . . . pursu-
ant to the Master Deed.” Davis completed the corrections in
January 2013.
Another concern for Bel Fury was the lack of heating and
cooling in Unit SCB. Scott Bloemer, one of Bel Fury’s owners,
testified that Unit SCB did not have “heating and air condi-
tioning” when Bel Fury bought the property. He stated that the
Association did not fix the problem until July 2010. Davis tes-
tified that he became aware that Unit SCB lacked “heating and
air conditioning” in March 2010. He said that the Association
remedied the problem “sometime in 2010.”
Bloemer testified that Bel Fury was unable to find a tenant
for Unit SCB because of the lack of heating and cooling, the
high assessments levied by the Association, and the stigma
from the foreclosure litigation. Bloemer estimated that the
annual rental income for Unit SCB “as it sat” “would be”
$28,120 and stated that this amount was the lost rental income
Bel Fury suffered each year from 2005 to 2012. Bloemer testi-
fied that Bel Fury could rent Unit SCB as storage space for
$400 to $750 per month, then testified that it would rent for
“like 50 cents to like a buck a square foot,” and later testi-
fied that it would rent for $300 per month. Unit SCB has
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TWIN TOWERS CONDO. ASSN. v. BEL FURY INVEST. GROUP 333
Cite as 290 Neb. 329
7,030 square feet. Asked whether Bel Fury “actively marketed
the property to sell,” Bloemer testified, “I think we probably
did at some point,” but he could not recall when. Regarding
Bel Fury’s efforts to rent the property, Bloemer said, “I think
the property was put out on the internet,” but he could not
recall when. Bloemer stated that Bel Fury did “not ma[k]e
a lot of effort” to let Unit SCB after the foreclosure litiga-
tion began.
Bloemer testified that Bel Fury started paying only half its
assessment for Unit SCB in February 2010 because he thought
that “maybe somebody will do something [about the heating
and cooling] if we cut our payments in half.” Bloemer said
that the Association stopped accepting the partial payments in
October 2010.
The Association recorded two notices of lien against Unit
SCB in October 2010. The most recent “Tenant Ledger” for
Bel Fury is “current through the month of March, 2013.”
According to the ledger, Bel Fury owed $27,868.15 of unpaid
annual and special assessments and $7,800.76 of late fees
and interest.
2. P rocedural Background
In December 2010, the Association filed a complaint to
foreclose its lien against Unit SCB. The complaint alleged that
Bel Fury owed assessments of $7,507 as of October 19, 2010,
“together with accruing dues, special assessments and interest
thereon from and after said date.”
In addition to Bel Fury, the Association named Gateway
Community Bank; Credit Bureau Services, Inc.; and Domina
Law Group PC, LLO, as defendants. The Association alleged
that these three defendants were actual or potential lienholders
with interests junior to the Association’s lien.
The complaint requested an accounting, a finding that the
Association has a lien on Unit SCB, and an order that Bel Fury
“be required to pay said indebtedness.” The Association asked
the court to issue an order of sale if Bel Fury did not pay the
back assessments within 20 days of entry of the decree.
In Bel Fury’s operative answer, it denied that it owed
any assessments to the Association. Bel Fury also asserted a
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334 290 NEBRASKA REPORTS
counterclaim, alleging that the Association “failed to provide
heating and air conditioning services” to Unit SCB “over
the past five years.” Bel Fury claimed that this failure made
Unit SCB “unrentable and unusable” and “interfered with” its
efforts to sell the unit. The counterclaim asserted damages of
about $190,000 for lost rent and $9,000 for “[o]verpaid utili-
ties.” In the Association’s reply, it generally denied the allega-
tions in the counterclaim and alleged that Bel Fury had not
suffered any damages.
As to the remaining defendants, Gateway Community Bank
filed an answer stating that it was the beneficiary of a 2006
deed of trust and that its interest was a “first and superior
lien.” Domina Law Group answered, stating that it sought
more than $130,000 from Bel Fury for professional services
in pending litigation. Credit Bureau Services did not file a
responsive pleading. In February 2012, the court sustained the
Association’s motion to dismiss Gateway Community Bank
without prejudice.
In September 2013, the court entered a “Finding and Order.”
The court found that the Association had a lien against Unit
SCB and that “judgment should be entered” for $26,467.44
against Bel Fury. The court stated that the Association could
foreclose its lien if Bel Fury did not pay this amount within 90
days. Because the Association miscalculated assessments, the
court concluded that the Association could not charge Bel Fury
late fees or interest. The court “dismissed” Bel Fury’s counter-
claim because it “failed to prove damages.” The court ordered
the parties to bear their own attorney fees and costs associated
with the action.
The Association moved for an order finding that Credit
Bureau Services had defaulted and that Domina Law Group
had no interest in Unit SCB. In November 2013, the court
found that neither Credit Bureau Services nor Domina Law
Group had a “lien interest” in Unit SCB.
III. ASSIGNMENTS OF ERROR
Bel Fury assigns, consolidated and renumbered, that the
court erred by finding that the Association may foreclose
its lien if unpaid after 90 days because (1) the assessments
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TWIN TOWERS CONDO. ASSN. v. BEL FURY INVEST. GROUP 335
Cite as 290 Neb. 329
were levied on a square-foot basis and nonuniformly, (2) the
Association did not provide Bel Fury with any notice regard-
ing the lien foreclosure, (3) the Association had an adequate
remedy at law, and (4) the provision that Bel Fury had 90 days
to pay the debt made the order “not presently effective and . . .
therefore void.” Bel Fury also assigns that the court erred by
(5) finding that Bel Fury failed to prove damages for its coun-
terclaim and (6) not awarding Bel Fury attorney fees.
On cross-appeal, the Association assigns, consolidated and
renumbered, that the court erred by (1) not awarding the
Association attorney fees and costs, (2) not awarding interest
on the past-due assessments, and (3) not awarding “assess-
ments due from and after February 2013.” The Association
also assigns that (4) the court’s decree was deficient because it
did not state the legal description of Unit SCB, the priority of
the liens, or that it would issue an order of sale if Bel Fury did
not pay the debt within 90 days.
IV. STANDARD OF REVIEW
[1-3] A real estate foreclosure action is an action in equity.1
On appeal from an equity action, an appellate court resolves
questions of law and fact independently of the trial court’s
determinations.2 But when credible evidence is in conflict on
material issues of fact, we consider and may give weight to
the fact that the trial court observed the witnesses and accepted
one version of the facts over another.3
[4-6] Statutory interpretation presents a question of law.4
Whether the evidence provides a basis for determining dam-
ages with reasonable certainty is a question of law.5 An appel-
late court reviews questions of law independently of the trial
court’s decision.6
1
Travelers Indemnity Co. v. Heim, 218 Neb. 326, 352 N.W.2d 921 (1984).
2
Robertson v. Jacobs Cattle Co., 288 Neb. 846, 852 N.W.2d 325 (2014).
3
See id.
4
Id.
5
See Pribil v. Koinzan, 266 Neb. 222, 665 N.W.2d 567 (2003).
6
Robertson v. Jacobs Cattle Co., supra note 2.
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V. ANALYSIS
1. Statutory Background
Before analyzing the issues raised in Bel Fury’s appeal, it
is necessary to discuss the statutory background. Nebraska
has two condominium acts: The Condominium Property Act
(CPA), Neb. Rev. Stat. §§ 76-801 to 76-823 (Reissue 2009),
and the Nebraska Condominium Act (NCA), Neb. Rev. Stat.
§§ 76-825 to 76-894 (Reissue 2009). Generally, the CPA gov-
erns condominium regimes created before 1984.7 The NCA
applies to condominiums created on or after January 1, 1984.8
A condominium regime is created under either the CPA or
the NCA when the master deed or declaration, respectively,
is recorded.9
Both acts provide that a condominium association has a lien
for unpaid assessments. As to the CPA, § 76-817 states:
The co-owners of the apartments are bound to pay pro
rata . . . toward the expenses of administration and of
maintenance and repair of the general common elements
and, in the proper case, of the limited common elements,
of the building, and toward any other expense lawfully
agreed upon.
If any co-owner fails or refuses to make any payment
of such common expenses when due, the amount thereof
shall constitute a lien on the interest of the co-owner in
the property and, upon the recording thereof, shall be a
lien in preference over all other liens and encumbrances
except assessments, liens, and charges for taxes past due
and unpaid on the apartment and duly recorded mortgage
and lien instruments.
No co-owner may exempt himself or herself from pay-
ing toward such expenses by waiver of the use or enjoy-
ment of the common elements or by abandonment of the
apartment belonging to him or her.
7
See Oak Hills Highlands Assn. v. LeVasseur, 21 Neb. Ct. App. 889, 845
N.W.2d 590 (2014).
8
See id.
9
See §§ 76-803 and 76-838(a).
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TWIN TOWERS CONDO. ASSN. v. BEL FURY INVEST. GROUP 337
Cite as 290 Neb. 329
Section 76-874 describes the lien process under the NCA
during the period relevant to this case:
(a) The association has a lien on a unit for any assess-
ment levied against that unit or fines imposed against its
unit owner from the time the assessment or fine becomes
due and a notice containing the dollar amount of such lien
is recorded in the office where mortgages are recorded.
The association’s lien may be foreclosed in like manner
as a mortgage on real estate but the association shall give
reasonable notice of its action to all lienholders of the unit
whose interest would be affected. Unless the declaration
otherwise provides, fees, charges, late charges, fines, and
interest . . . are enforceable as assessments under this sec-
tion. If an assessment is payable in installments, the full
amount of the assessment may be a lien from the time the
first installment thereof becomes due.
(b) A lien under this section is prior to all other liens
and encumbrances on a unit except (i) liens and encum-
brances recorded before the recordation of the declara-
tion, (ii) a first mortgage or deed of trust on the unit
recorded before the date on which the assessment sought
to be enforced became delinquent, and (iii) liens for
real estate taxes and other governmental assessments or
charges against the unit. . . .
....
(e) This section does not prohibit actions to recover
sums for which subsection (a) of this section creates a
lien . . . .
(f) A judgment or decree in any action brought under
this section must include costs and reasonable attorney’s
fees for the prevailing party.
The Association recorded its master deed on December
30, 1983. But § 76-826(a) states that certain sections of the
NCA, including § 76-874, apply to condominiums created
before 1984 if the events in question occurred after January
1, 1984:
The [NCA] shall apply to all condominiums created within
this state after January 1, 1984. Sections 76-827, 76-829
to 76-831, 76-840, 76-841, 76-869, 76-874, 76-876,
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76-884, and 76-891.01, and subdivisions (a)(1) to (a)(6)
and (a)(11) to (a)(16) of section 76-860, to the extent
necessary in construing any of those sections, apply to
all condominiums created in this state before January 1,
1984; but those sections apply only with respect to events
and circumstances occurring after January 1, 1984, and
do not invalidate existing provisions of the master deed,
bylaws, or plans of those condominiums.
The effect of § 76-826 is acknowledged in multiple sections of
the CPA, including § 76-817.10
The Association’s master deed adds another wrinkle.
Paragraph 7(b) provides:
If any co-owner shall fail or refuse to make any payment
of such assessments when due, the amount thereof plus
interest shall constitute a lien upon the co-owner’s interest
in his apartment and in the property and, upon the record-
ing of such lien by the Association . . . such amount shall
constitute a lien prior and preferred over all other liens
and encumbrances, except previous[ly] filed Association
assessments, liens and charges for taxes past due and
unpaid on the apartment except as otherwise provided for
by law.
While § 76-826(a) requires that some sections of the NCA
be applied to CPA-era condominium regimes, it cautions that
the NCA does not invalidate the provisions of existing mas-
ter deeds.
Neither the Association nor Bel Fury have labored over
whether the validity of the Association’s lien depends on
§ 76-817, § 76-874, or the master deed. Depending on the
context, the Association cites both §§ 76-817 and 76-874,
while also asserting that it “has a lien pursuant to the Master
Deed.”11 Bel Fury has focused on the NCA under the assump-
tion that the condominium regime was created in 2005—pre-
sumably because of the Association’s references in its notices
10
See §§ 76-802, 76-804, 76-807, 76-809, 76-811, 76-816, 76-817, 76-819,
76-820, and 76-823. See, also, Neb. Rev. Stat. § 76-824.01 (Reissue
2009).
11
Brief for appellee Twin Towers at 12.
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TWIN TOWERS CONDO. ASSN. v. BEL FURY INVEST. GROUP 339
Cite as 290 Neb. 329
of lien and complaint to a phantom 2005 master deed. In its
September 2013 order, the court found that the Association had
a lien “pursuant to Neb. Rev. Stat. [§]§ 76-817 and 76-874.”
We conclude that § 76-874 determines the validity of the
Association’s lien for unpaid assessments. Although the Twin
Towers condominium regime was created before January 1,
1984, the events relevant to the Association’s lien occurred
after that date. Therefore, § 76-826(a) requires that we apply
§ 76-874 instead of § 76-817. This result does not “invalidate”
paragraph 7(b) of the master deed.12 Language in the master
deed concerning the creation and enforcement of a lien was
always gratuitous, because the “existence of a valid statutory
lien rests entirely on whether the terms of the statute creating
the lien have been met.”13
2. Appeal
(a) The Association
Has a Valid Lien
Bel Fury argues that the Association’s lien was “invalid and
void ab initio” because the Association made assessments on a
square-foot basis and because it nonuniformly assessed com-
mercial and residential properties.14 The Association “readily
admits that assessments had been miscalculated for a period of
time,” but asserts that “this had been corrected months before
trial.”15 The Association argues that at least by the time of
12
See Carroll v. Oak Hall Associates, L.P., 898 S.W.2d 603 (Mo. App.
1995).
13
51 Am. Jur. 2d Liens § 56 at 133-34 (2011). See, BA Mortg. v. Quail Creek
Condominium Ass’n, 192 P.3d 447 (Colo. App. 2008); Dime Sav. Bank of
N.Y. v. Muranelli, 39 Conn. App. 736, 667 A.2d 803 (1995); Hudson House
Condo. Ass’n v. Brooks, 223 Conn. 610, 611 A.2d 862 (1992); Brask v.
Bank of St. Louis, 533 S.W.2d 223 (Mo. App. 1975). See, also, Spanish
Court Two Condominium Ass’n v. Carlson, 214 IL 115342, 12 N.E.3d 1,
382 Ill. Dec. 1 (2014); Elbadramany v. Oceans Seven Condominium Ass’n,
461 So. 2d 1001 (Fla. App. 1984). But see, In re Eno, 269 B.R. 319 (M.D.
Pa. 2001); Harbours Condominium Ass’n, Inc. v. Hudson, 852 N.E.2d 985
(Ind. App. 2006).
14
Brief for appellant at 6.
15
Brief for appellee Twin Towers at 9.
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trial, it sought only to enforce a lien for assessments made in
con­formance with its governing documents.
[7-9] The purpose of a foreclosure proceeding is not to
create a lien, but to enforce one already in existence.16 A lien
created by statute is limited in operation and extent by the
terms of the statute.17 It can arise and be enforced only under
the conditions provided in the statute.18 The party seeking to
enforce a lien has the burden of proving every fact essential to
the establishment of the lien.19
[10] It is true that courts enforce condominium assess-
ments only if they are calculated in the manner required by
the association’s governing documents.20 But Bel Fury does
not cite any authority stating that a lien for correctly cal-
culated assessments cannot be enforced merely because the
assessments were initially miscalculated. To the contrary, at
least one court has held that an initial miscalculation is not
fatal to a condominium association’s foreclosure action. In
Oronoque Shores Condo. Ass’n v. Smulley,21 a condomin-
ium association admittedly levied a special assessment for
snow removal to each owner equally, even though its bylaws
required it to make assessments according to each unit’s share
of the common elements. After the association started fore-
closure proceedings, it corrected the error and reapportioned
the assessment.
16
See, West Town Homeowners Assn. v. Schneider, 231 Neb. 100, 435
N.W.2d 645 (1989); Federal Land Bank of Omaha v. Blankemeyer, 228
Neb. 249, 422 N.W.2d 81 (1988).
17
See, West Neb. Gen. Hosp. v. Farmers Ins. Exch., 239 Neb. 281, 475
N.W.2d 901 (1991); County Board of Platte County v. Breese, 171 Neb.
37, 105 N.W.2d 478 (1960); In re Conservatorship of Marshall, 10 Neb.
App. 589, 634 N.W.2d 300 (2001).
18
See id.
19
51 Am. Jur. 2d, supra note 13, § 89. See, also, Walker Land & Cattle Co.
v. Daub, 223 Neb. 343, 389 N.W.2d 560 (1986).
20
See, In re Johnson, 366 N.C. 252, 741 S.E.2d 308 (2012); Zack v. 3000
East Avenue Condominium Ass’n, 306 A.D.2d 846, 762 N.Y.S.2d 459
(2003).
21
Oronoque v. Shores Condo. Ass’n v. Smulley, 114 Conn. App. 233, 968
A.2d 996 (2009).
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On appeal, the unit owner argued that the assessment was
void because it did not conform to the bylaws. She asserted
that the subsequent correction did not make the assessment
valid because such “new assessment” was not approved by the
association’s board.22 The court concluded that the assessment
was not void “merely because of the incorrect apportionment”
because it was “forewarned, properly imposed and voted on by
the board and within the association’s authority to impose.”23
The court distinguished the “validity” of the assessment from
its “apportionment”:
We must note that there is a difference between the
validity of the snow assessment, that is, the power of
the association to impose the assessment, and the man-
ner in which it was apportioned. The apportioning of the
snow assessment to each unit owner is a ministerial task,
which does not affect the validity of the snow assess-
ment itself.24
The court also noted that the defendant “acknowledged that the
snow assessment was due and owing.”25
[11] We conclude that the Association’s temporary miscal-
culation of assessments does not invalidate its lien against
Unit SCB. Because the bylaws require the Association to levy
assessments according to each unit’s share of the regime’s basic
value, the Association cannot enforce assessments made on the
Unit SCB’s square footage.26 But here, the decree enforced
assessments calculated according to Unit SCB’s share of the
regime’s basic value. Bloemer testified that he did not think
that Bel Fury had to pay assessments until the Association
repaired Unit SCB’s heating and cooling unit, but he otherwise
did not dispute the amount of assessments as recalculated on
a basic value basis. Withholding assessments is not a remedy
22
Id. at 238, 968 A.2d at 999.
23
Id. at 238-39, 968 A.2d at 999.
24
Id. at 239, 968 A.2d at 1000.
25
Id. at 240, 968 A.2d at 1000.
26
See, In re Johnson, supra note 20; Zack v. 3000 East Avenue Condominium
Ass’n, supra note 20.
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to cure unauthorized acts by the officers or directors of a
­condominium association.27 Accordingly, the court did not err
by enforcing a lien for assessments calculated in a manner con-
sistent with the Association’s bylaws.
(b) Notice
Bel Fury argues that the Association’s lien is void because
it did not give Bel Fury a “notice of default”28 or “Notice to
Cure.”29 In support, Bel Fury cites sections of the Nebraska
Trust Deeds Act and the Farm Homestead Protection Act.30
We determine that these sections have no bearing on the
Association’s action to foreclose a lien for unpaid condo-
minium assessments. Section 76-874(a) requires notice to other
lienholders, but is silent as to the unit owner. The Association’s
foreclosure action has entered its fifth year, and Bel Fury
does not point to any notice deficiencies related to the litiga-
tion proc­ess. To the extent that Bel Fury argues that it did not
receive notice of the sale of Unit SCB, we note that the sale
has not yet occurred.
(c) Adequate Remedy
at Law
[12] Bel Fury argues that the Association could not foreclose
its lien because it had an adequate remedy at law (i.e., money
damages). We disagree. In general, the holder of a lien may
pursue foreclosure without first obtaining a personal judgment
on the underlying debt.31 Section 76-874(a) provides that an
assessment lien “may be foreclosed in like manner as a mort-
gage.” We have held that a mortgagee may foreclose its lien
without being forced to resort to other remedies.32
27
Coral Way Condo. v. 21/22 Condo. Assn., 66 So. 3d 1038 (Fla. App. 2011).
28
Brief for appellant at 8.
29
Reply brief for appellant at 6.
30
See Neb. Rev. Stat. §§ 76-1008 and 76-1903 (Reissue 2009).
31
53 C.J.S. Liens § 56 (2005).
32
Federal Farm Mortgage Corporation v. Ganser, 146 Neb. 635, 20 N.W.2d
689 (1945). See, also, Federal Farm Mtg. Corporation v. Cramb, 137 Neb.
553, 290 N.W.2d 440 (1940); 55 Am. Jur. 2d Mortgages § 452 (2009).
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TWIN TOWERS CONDO. ASSN. v. BEL FURY INVEST. GROUP 343
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(d) “Invalid” Judgment
[13] Bel Fury argues that the provision in the decree that
Bel Fury had 90 days to pay the outstanding assessments
before the Association could foreclose made the judgment
“invalid because it is an order which is not presently effective.”
Again, we disagree. A foreclosure decree is a final judgment
even though it creates a period for redemption.33
(e) Proof of Damages
Bel Fury argues that the court erred by finding that Bel Fury
“failed to prove damages” on its counterclaim. Bel Fury asserts
that “unreasonably high dues” and the lack of heating and cool-
ing “negatively affected both the re-sale value of the units and
the rentability.”34 The Association emphasizes that Bel Fury
could not find a tenant for Unit SCB either before or after the
heating and cooling unit was repaired. The Association posits
that Unit SCB’s status as a windowless basement space “in all
probability accounts for the lack of any tenants or prospec-
tive tenants.”35
[14] A plaintiff does not have to prove his or her damages
beyond all reasonable doubt, but must prove them to a reason-
able certainty.36 After reviewing the record, we conclude that
the court did not err by finding that Bel Fury failed to prove
damages to a reasonable certainty.
(f) Attorney Fees
Bel Fury argues that the court abused its discretion by not
awarding it attorney fees under § 76-891.01, which provides:
If a declarant or any other person subject to the
[NCA] fails to comply with any provision of the act or
any provision of the declaration or bylaws, any person
33
Mortgage Lenders Network, USA v. Sensenich, 177 Vt. 592, 873 A.2d
892 (2004); 55 Am. Jur. 2d, supra note 32, § 634. See, also, West Town
Homeowners Assn. v. Schneider, supra note 16.
34
Brief for appellant at 10.
35
Brief for appellee Twin Towers at 16.
36
See, Dutton-Lainson Co. v. Continental Ins. Co., 279 Neb. 365, 778
N.W.2d 433 (2010); Eicher v. Mid America Fin. Invest. Corp., 275 Neb.
462, 748 N.W.2d 1 (2008).
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344 290 NEBRASKA REPORTS
or class of persons adversely affected by the failure to
comply has a claim for appropriate relief. The court, in
an appropriate case, may award costs and reasonable
attorney’s fees.
Section 76-891.01 is part of the NCA, but it is among the sec-
tions that § 76-826 makes applicable to CPA-era condominiums.
[15] We determine that Bel Fury is not entitled to attorney
fees. Customarily, attorney fees and costs are awarded only to
prevailing parties or assessed against those who file frivolous
suits.37 Bel Fury did not prevail, and the Association’s suit was
not frivolous.
3. Cross-Appeal
(a) Attorney Fees and Costs
[16] The Association argues that it is entitled to attorney
fees and costs. We agree. Section 76-874(f) provides: “A judg-
ment or decree in any action brought under this section must
include costs and reasonable attorney’s fees for the prevail-
ing party.” The Association was a prevailing party because it
received a judgment in its favor.38 The court had discretion
as to the amount,39 but the award of attorney fees and costs
is mandatory.40
(b) Interest
The Association argues that it is entitled to interest on past-
due assessments. On our de novo review, we conclude that the
court did not err by declining to award interest, because the
Association miscalculated assessments for a substantial period.
(c) Assessments Due
After January 2013
The Association argues that the court erred by not includ-
ing in the debt secured by its lien the assessments that became
37
Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999); Brodersen v. Traders
Ins. Co., 246 Neb. 688, 523 N.W.2d 24 (1994).
38
20 C.J.S. Costs § 139 (2007).
39
See, e.g., Brodersen v. Traders Ins. Co., supra note 37.
40
See Stage Neck Owners Ass’n v. Poboisk, 726 A.2d 1261 (Me. 1999).
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TWIN TOWERS CONDO. ASSN. v. BEL FURY INVEST. GROUP 345
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delinquent after January 2013. In its decree, the court found
that the debt secured by the Association’s lien is $26,467.44,
which is the amount of unpaid assessments in Davis’ tenant
ledger through January 1, 2013. Under an acceleration clause
in the bylaws, the Association argues that all the monthly
assessments became due upon the delinquency of one install-
ment. “At the very least,” the Association contends, “the trial
court should have awarded ongoing and unpaid assessments up
to the point of any payment by Bel Fury or sale of the property
pursuant to an order of sale.”41
The amount of the debt is an essential part of a foreclosure
decree.42 The court may include an installment of the debt that
was not due when the complaint was filed but became due dur-
ing the pendency of litigation.43 But the court cannot include an
installment that has yet to become due, because doing so would
prevent a redemption.44
[17] We have said that an acceleration clause in a mort-
gage is enforceable,45 although an equity court may deny
enforcement when application of the clause would be ineq-
uitable.46 Paragraph 12 of the bylaws provides: “The delin-
quency of one installment of an assessment shall cause all
remaining installments to immediately become due, payable
and delinquent.”
On our de novo review, we conclude that enforcement of
the acceleration clause in paragraph 12 of the bylaws would be
inequitable. The Association miscalculated—substantially—the
amount of assessments, starting well before it filed the notices
of lien and continuing for 2 years after it started foreclosure
proceedings. But we conclude that the debt secured by the
Association’s lien includes the assessments for the months of
41
Brief for appellee Twin Towers on cross-appeal at 29-30.
42
See, e.g., Glissman v. Orchard, 152 Neb. 500, 41 N.W.2d 756 (1950).
43
See 5 Herbert Thorndike Tiffany, The Law of Real Property § 1523 (3d ed.
1939).
44
Id.
45
See Jones v. Burr, 223 Neb. 291, 389 N.W.2d 289 (1986).
46
Walker Land & Cattle Co. v. Daub, supra note 19.
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346 290 NEBRASKA REPORTS
February and March 2013. On March 26, 2013, Davis testi-
fied that Bel Fury had not paid assessments for Unit SCB
since September 2010. Paragraph 12 of the bylaws states that
assessments are due on the first of each month and delinquent
if not paid within 10 days. Accordingly, the record shows
that the February and March 2013 assessments against Unit
SCB were delinquent and part of the debt secured by the
Association’s lien.
(d) Necessary Findings
in Foreclosure Decree
The Association argues that the court’s decree was deficient
because it did not state the legal description of Unit SCB, did
not determine the “lien interests of the various parties,” and did
not “provide for the issuance of an order of sale and of the sale
of the property.”47 The Association also contends that the court
should not have “identified the amount due as a judgment.”
[18] The purposes of a foreclosure action are to determine
the existence of a lien and the amount and priority of the lien,
and to obtain a decree directing the sale of the premises in
satisfaction thereof if no redemption is made.48 In a foreclosure
action, the “judgment” is the order stating the amount due and
directing a sale to satisfy the lien.49 The necessary issues to be
determined by the foreclosure decree are the execution of the
agreement, the breach thereof, the identity of the real estate,
and the amount remaining due.50
[19] We conclude that the court erred by not stating the
legal description of Unit SCB in its decree. A foreclosure
decree governs which property is to be sold at an execution
sale, regardless of the description in subsequent documents
47
Brief for appellee Twin Towers on cross-appeal at 27.
48
Wittwer v. Dorland, 198 Neb. 361, 253 N.W.2d 26 (1977).
49
Federal Deposit Ins. Corp. v. Tidwell, 820 P.2d 1338 (Okla. 1991); 55 Am.
Jur. 2d, supra note 32, § 634.
50
See, Glissman v. Orchard, supra note 42; Columbus Land, Loan & Bldg.
Assn. v. Wolken, 146 Neb. 684, 21 N.W.2d 418 (1946); Stuart v. Bliss, 116
Neb. 305, 216 N.W. 944 (1927); Union Central Life Ins. Co. v. Saathoff,
115 Neb. 385, 213 N.W. 342 (1927).
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and notices.51 Thus, the legal description in the decree is
extremely important.52 We note that § 76-841—which is listed
in § 76-826(a)—states the particulars of a sufficient legal
description for a condominium unit.
We determine that the court did not err by failing to pri-
oritize the “lien interests of the various parties.”53 The court
found in a November 2013 order that neither Domina Law
Group nor Credit Bureau Services had a lien interest in Unit
SCB. In February 2012, the court sustained the Association’s
motion to dismiss Gateway Community Bank as a party to
the action.
Finally, we conclude that the entry of a “judgment”—rather
than a “decree”—and the statement that the Association could
“foreclose”—rather than a “provi[sion] for the issuance of an
order of sale”—do not rise to the level of prejudicial error.54
Generally, an equity court’s decision is termed a “decree” and
the decision of a court of law is termed a “judgment.”55 But it
is clear enough that the court ordered Bel Fury to pay its debt
within 90 days and that if it failed to do so, the Association
could have Unit SCB sold to satisfy the debt.
VI. CONCLUSION
We conclude that the Association’s initial miscalculation of
assessments does not invalidate its lien against Unit SCB. Nor
do we find merit in Bel Fury’s remaining assignments. But
on the Association’s cross-appeal, we remand the cause with
directions to award the Association attorney fees and costs, to
include assessments for February and March 2013 as part of
the debt secured by the lien, and to determine the legal descrip-
tion of the property subject to the lien.
Affirmed in part, and in part reversed
and remanded with directions.
Wright, J., not participating.
51
Bates v. Schuelke, 191 Neb. 498, 215 N.W.2d 874 (1974).
52
See id. See, also, 55 Am. Jur. 2d, supra note 32, § 636.
53
Brief for appellee Twin Towers on cross-appeal at 27.
54
Id.
55
See Black’s Law Dictionary 497 (10th ed. 2014).