Rapoport v. Martin

2018 UT App 163THE UTAH COURT OF APPEALS
JEAN A. RAPOPORT AND RICHARD N. RAPOPORT,
Appellants,
v.
JUDY MARTIN AND FOUR LAKES VILLAGE
HOMEOWNERS ASSOCIATION INC.,
Appellee.
Opinion
No. 20160935-CA
Filed August 23, 2018
Third District Court, Silver Summit Department
The Honorable Kara Pettit
No. 150500281
Jean A. Rapoport and Richard N. Rapoport,
Appellants Pro Se
Eric P. Lee and Justin J. Keys, Attorneys for Appellee
Judy Martin
Matthew B. Hutchinson and Joelle S. Kesler,
Attorneys for Appellee Four Lakes Village
Homeowners Association Inc.
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
MORTENSEN, Judge:
¶1 Good fences make good neighbors, 1 but apparently deck
extensions do not. Jean A. Rapoport and Richard N. Rapoport
petitioned their Homeowners Association (the HOA) to order
1. See Robert Frost, Mending Wall, in North of Boston 11 (2d ed.
1915).
Rapoport v. Martin
Judy Martin to remove a deck extension from a common area in
the neighborhood. When the HOA approved the deck extension
instead, the Rapoports filed an action in the district court to
order its removal. The district court ruled that the HOA had the
power to approve the deck extension. The Rapoports filed this
appeal, arguing for reversal of the district court’s ruling. We
affirm.
¶2 The Rapoports and Martin live in the same development,
governed under the same Covenants, Conditions, and
Restrictions (the CC&Rs). The CC&Rs state, “No Owner shall,
without the prior written consent of the Association, make or
permit to be made any structural alteration, improvement, or
addition in or to his lot or to the Common Areas.” The CC&Rs
further provide, “There shall be no obstruction of the Common
Areas by any Owner. Owners shall neither store nor leave any of
their property in the Common Areas, except with the prior
written consent of the Association.”
¶3 One day the Rapoports noticed that Martin was extending
her deck. The Rapoports reported the extension to the HOA,
which ordered Martin to cease construction until the HOA could
consider the Rapoports’ objection. Unbeknownst to the
Rapoports, Martin had submitted plans and received approval
from the HOA’s Architectural Review Committee (the ARC)
prior to construction. The HOA’s board eventually ratified the
ARC’s approval of the deck extension and construction
recommenced.
¶4 The Rapoports filed a complaint against Martin and the
HOA, seeking a declaratory judgment that the deck extension
violated the CC&Rs. At the close of discovery, the Rapoports
moved for summary judgment on their claim. The HOA filed a
cross-motion for summary judgment, seeking an order declaring
that the HOA had acted within the scope of its authority when it
approved Martin’s project and seeking attorney fees. Martin
20160935-CA 2 2018 UT App 163Rapoport v. Martin
joined in the HOA’s argument regarding the scope of the HOA’s
authority to approve the deck extension.
¶5 After considering the various motions and arguments, the
district court ruled against the Rapoports and in favor of the
HOA and Martin. In its order, the district court reasoned that,
under the CC&Rs, “the Board is not precluded from allowing
improvements to the common area,” specifically relying on the
CC&R provisions stating that there shall be no obstruction,
alteration, improvement, or addition to the common areas
without the “prior written consent of the Association.” Upon
that reasoning, the district court denied the Rapoports’ motion
for summary judgment and dismissed their complaint with
prejudice. The court also awarded the HOA attorney fees and
costs in the amount of $19,302.10. The Rapoports appeal.
¶6 On appeal, we must determine whether the district court
erred in its denial of the Rapoports’ motion for summary
judgment and grant of the HOA’s motion for summary
judgment. Summary judgment is proper if “there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law.” Utah R. Civ. P. 56(a). We review
a district court’s legal conclusions and grant or denial of
summary judgment for correctness, viewing the facts and all
reasonable inferences in the light most favorable to the
nonmoving party. See Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d
600.
¶7 First, the Rapoports argue that disputed facts exist that
prevent summary judgment on the HOA’s motion. However, the
Rapoports fail to demonstrate how any of the alleged factual
disputes are material. A dispute is material only if it matters for
the resolution of the case. See Horgan v. Industrial Design Corp.,
657 P.2d 751, 752 (Utah 1982). The Rapoports argue that they
disputed the following facts asserted in the HOA’s motion: (1)
“The board prepared and adopted an authorization for the ARC
to approve changes to the exterior of units,” and (2) “That a
20160935-CA 3 2018 UT App 163Rapoport v. Martin
similar deck project had been approved in the past.” Aside from
pointing out their dispute, the Rapoports do not explain how or
why these disputes are material to the district court’s decision.
These statements appear to be examples only of the HOA’s
asserted authority to approve a project like Martin’s deck
extension, but they have no bearing on whether the HOA
actually has the authority to approve the project. Therefore,
these disputes are immaterial.
¶8 Next, the Rapoports argue that the HOA does not have
the authority to approve a project that obstructs a common area
without the consent of all homeowners. In support of that
argument, the Rapoports cite examples of prior HOA
interpretations of the CC&Rs as well as a CC&R provision that
states, “Except as otherwise provided in this declaration, the
percentages appurtenant to each lot as shown in Exhibit A shall
have a permanent character and shall not be altered without the
unanimous consent of all Owners expressed in an amendment to
this declaration duly recorded.” These arguments are also
immaterial; the prior interpretations do not affect our analysis of
the plain language of a contract, 2 nor does the approval of a deck
extension into the common area affect any owner’s percentage of
undivided interest in the common areas. 3
2. Our supreme court has recognized that equitable doctrines
“may intrude upon contract terms, even with the result of
modifying or abrogating their terms.” See Saleh v. Farmers Ins.
Exch., 2006 UT 20, ¶ 22, 133 P.3d 428. As the court noted, these
doctrines generally appear in the form of estoppel. Id. They are
not, however, “within the toolbox of contract interpretation.” Id.The Rapoports do not make this argument.
3. What appears to be happening here is a comparison of apples
to oranges. Years ago, the Rapoports were denied their request
to install lighting based on the lack of their neighbors’ consent.
(continued…)
20160935-CA 4 2018 UT App 163Rapoport v. Martin
¶9 The scope of an HOA’s authority to approve construction
projects is generally governed by the CC&Rs, which are
interpreted “by the same rules of construction as those used to
interpret contracts” and are generally “enforced as written”
when they are unambiguous. See Fort Pierce Indus. Park Phases II,
III & IV Owners Ass’n v. Shakespeare, 2016 UT 28, ¶ 19, 379 P.3d
1218 (cleaned up). The Rapoports cite no authority stating that
an HOA’s prior interpretation of CC&Rs limits its authority for
future decisions. Instead, the district court ruled upon the
CC&Rs as written. We see no error in the district court’s
approach.
¶10 The CC&Rs state that “prior written consent of the
Association” will exempt a “structural alteration, improvement,
or addition” from the CC&R’s general prohibition from such
alterations. Prior written consent from the HOA may also allow
owners to “store” or “leave any of their property” in the
common areas. This language provides the HOA with authority
(…continued)
That fight made its way before this court and was decided in
2013. See Rapoport v. Four Lakes Village Homeowners Ass’n, Inc.,
2013 UT App 78, 300 P.3d 327. In that case, we examined a
district court decision upholding the HOA’s denial of the
Rapoports’ request to install lighting because of “lighting
guidelines” that the HOA had adopted, which required neighbor
approval. Id. ¶ 15. This court affirmed the district court’s
decision to uphold the HOA’s denial of the Rapoports’ request
because the “neighbor approval requirement in the lighting
guidelines [was] reasonably derived from” the same CC&R
provision that the Rapoports now claim requires neighbor
approval for Martin’s deck extension. See id. ¶ 18. That analysis
fails because here, unlike the lighting guidelines at issue in the
previous case, there is no provision, guideline, or rule requiring
neighbor approval for projects like Martin’s deck extension.
20160935-CA 5 2018 UT App 163Rapoport v. Martin
to approve structural alterations or obstructions. The Rapoports’
argument that previous HOA decisions dictate disapproval in
this case is unconvincing; we need only look beyond the four
corners of the CC&Rs when the provisions are ambiguous,
which in this context they are not. Similarly, any argument that
the CC&Rs require “unanimous written consent of all Owners”
to alter “[t]he [percentages of] undivided interest in the
Common Areas appurtenant to each lot” is unconvincing in this
context; an owner’s percentage does not change even if the
character of the common area changes. Further, any limitation
the CC&Rs place on the HOA’s ability to alter the character of
the common areas is conditioned with, “[e]xcept as otherwise
provided in this declaration.” And because the language of the
CC&R sections governing alterations and obstructions expressly
contemplates approval of such, with prior written consent from
the HOA, we cannot agree that the Rapoports’ interpretation is
reasonable. We therefore find no error in the district court’s
analysis of the CC&Rs.
¶11 Finally, the Rapoports argue that the district court erred
in awarding attorney fees and costs to the HOA, claiming that
the CC&Rs allow attorney fees only when the HOA itself
“take[s] judicial action against any Owner to enforce
compliance” with the CC&Rs. We disagree.
¶12 This court previously interpreted the relevant attorney
fees provision in Rapoport v. Four Lakes Village Homeowners Ass’n,
Inc., 2013 UT App 78, 300 P.3d 327. There, we concluded that the
Rapoports’ interpretation of the phrase “judicial action” was
“too narrow.” Id. ¶ 24 (cleaned up). Instead, we concluded that
“the phrase ‘judicial action’ is broad enough to encompass both
the assertion of and the defense against a claim.” Id. We decline
to disturb that precedent by which we are bound. See State v.
Legg, 2018 UT 12, ¶ 9, 417 P.3d 592 (explaining that “stare decisis
has equal application when one panel of a multi-panel appellate
court is faced with a prior decision of a different panel” (cleaned
20160935-CA 6 2018 UT App 163Rapoport v. Martin
up)). Accordingly, we conclude that the district court did not err
in awarding attorney fees to the HOA.
¶13 In addition, the HOA requests attorney fees on this
appeal. Because the HOA was awarded attorney fees below, we
grant the HOA’s request for an award of reasonable attorney
fees and remand to the district court for calculation. Valcarce v.
Fitzgerald, 961 P.2d 305, 319 (Utah 1998) (“[W]hen a party who
received attorney fees below prevails on appeal, the party is also
entitled to fees reasonably incurred on appeal.” (cleaned up)).
¶14 We conclude that the district court correctly decided the
summary judgment motions before it. No material dispute of
fact existed to prevent summary judgment. The district court
correctly concluded as a matter of law that the language of the
CC&Rs authorized the HOA to approve construction projects
that may encroach on common areas. Further, the district court
appropriately awarded the HOA attorney fees. We remand for
the limited purpose of calculating reasonable attorney fees and
costs associated with this appeal, which are to be awarded to the
HOA.
¶15 Affirmed.
20160935-CA 7 2018 UT App 163