Office Condominium Assn., Inc v. Rompre ( 2020 )

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THE OFFICE CONDOMINIUM ASSOCIATION,
INC. v. MARGUERITE ROMPRE ET AL.
(AC 41458)
DiPentima, C. J., and Lavine and Eveleigh, Js.
Syllabus
The plaintiff condominium association sought to foreclose a statutory lien
for, inter alia, unpaid common charges on a condominium unit owned
by the defendant M, and, thereafter, M filed a counterclaim. The trial
court granted M’s motion for summary judgment on the foreclosure
complaint and M amended her counterclaim to add counts, including
vexatious litigation and slander of title. The condominium association
filed a motion for summary judgment on the counterclaim, which the
trial court granted on all counts except the count for attorney’s fees
pursuant to statute (§ 47-278), a provision of the Common Interest Own-
ership Act. Thereafter, M and the defendant B appealed to this court.
Held that this court lacked subject matter jurisdiction over the appeal
and, accordingly, the appeal was dismissed; the appeal was not taken
from a final judgment as the trial court left a substantive claim unre-
solved, the claim for attorney’s fees having been based on alleged under-
lying violations of the Common Interest Ownership Act that required
the court to conduct a hearing on the merits to determine whether
any such violation occurred during the foreclosure and not simply the
amount of attorney’s fees to be awarded after a violation has been found,
and, therefore, a count remained open following the court’s ruling on
the condominium association’s motion for summary judgment.
Argued October 24, 2019—officially released March 10, 2020
Procedural History
Action to foreclosure a statutory lien for, inter alia,
unpaid common charges on a condominium unit owned
by the named defendant, and for other relief, brought
to the Superior Court in the judicial district of New
Britain and transferred to the judicial district of Hart-
ford, where the named defendant filed a counterclaim;
thereafter, the court, Hon. Joseph M. Shortall, judge
trial referee, granted the named defendant’s motion for
summary judgment as to the complaint; subsequently,
the court, Moukawsher, J., granted in part the plaintiff’s
motion for summary judgment as to the amended coun-
terclaim and rendered judgment thereon, from which
the named defendant et al. appealed to this court.
Appeal dismissed.
Taryn D. Martin, with whom, on the brief, was Robert
A. Ziegler, for the appellants (named defendant et al.).
Keith P. Sturges, for the appellee (plaintiff).
Opinion
DiPENTIMA, C. J. The defendants Marguerite Rom-
pre and Bertrand Rompre1 appeal from the grant of
summary judgment in favor of the plaintiff, The Office
Condominium Association, Inc. On appeal, the defen-
dants raise a number of challenges to the trial court’s
decision.2 We do not address these claims, however,
because we conclude that the defendants’ appeal was
not taken from a final judgment. Accordingly, we dis-
miss the appeal.
The following facts and procedural history are rele-
vant to the disposition of this appeal. On October 22,
2013, the plaintiff commenced the underlying foreclo-
sure action against the defendants3 for failing to pay
various costs associated with ownership of a condomin-
ium unit, including common charges, late fees, fines,
and interest. The unit at issue is located in Building B
of The Office Condominium at 325 Main Street, Farm-
ington. On November 20, 2014, Marguerite filed an
answer denying the allegations of the complaint. She
also filed a counterclaim alleging violation of the Con-
necticut Common Interest Ownership Act, General Stat-
utes § 47-200 et seq., breach of contract, breach of the
implied duty of good faith and fair dealing, negligence,
and violation of the Connecticut Unfair Trade Practices
Act, General Statutes § 42-110 et seq. She also sought
appointment of a receiver. On June 9, 2015, Marguerite
filed a motion for summary judgment as to the foreclo-
sure complaint in which she argued that the plaintiff
failed to comply with General Statutes § 47-258 (m)
(1)4 and (2)5 and, therefore, could not foreclose the
property. On July 15, 2015, the court, Hon. Joseph M.
Shortall, judge trial referee, granted Marguerite’s sum-
mary judgment motion.
Following the granting of the motion, on September
22, 2015, Marguerite filed an amended counterclaim
and alleged three additional counts.6 These additional
counts included vexatious litigation, breach of fiduciary
duty and slander of title. On December 4, 2015, Margue-
rite filed a motion to cite Bertrand in as a counterclaim
plaintiff to prosecute the counterclaim. On March 8,
2016, the court granted the motion to cite in Bertrand.
On January 2, 2018, the plaintiff filed a motion for
summary judgment as to the counterclaim filed by Mar-
guerite. On February 7, 2018, the court, Moukawsher,
J., granted the motion in favor of the plaintiff on all
counts except the count for attorney’s fees pursuant to
General Statutes § 47-278 (a), a provision of the Com-
mon Interest Ownership Act.7 In addressing that count,
the court concluded that the statute ‘‘does provide [that]
‘the court may’ award attorney’s fees as part of winning
a claim to ‘enforce a right granted or an obligation
imposed’ under [the Common Interest Ownership Act].
Thus, any fee award is for the court to decide, not a jury.
And if the language of the statute isn’t clear enough, in
2002 the Appellate Court affirmed in Original Grasso
Construction Co. v. Shepherd, [70 Conn. App. 404, 419,
799 A.2d 1083, cert. denied, 261 Conn. 932, 806 A.2d
1065 (2002)] that the question of whether to award
statutory attorney’s fees is a question of law for the
court to decide.
‘‘So if the [plaintiff] foreclosed in violation of the
statute, why can’t its victim recover the fees it spent
to defend against it? Must you prove bad faith? The
statute doesn’t say anything of the kind. Were the viola-
tions somehow technical? Would that matter? The stat-
ute doesn’t say anything on that score either. It merely
says ‘the court may award reasonable attorney’s fees
and costs.’ And must those reasonable attorney’s fees
only relate to the counterclaim as opposed to the under-
lying claim?
‘‘The counterclaim is about beginning the underlying
[foreclosure] in violation of the statute, so either way
the violations are pertinent. In any case, the question
is for the court’s discretion and the court finds enough
dispute over the facts and how to apply the law to them
to merit a hearing on whether to exercise its discretion
to award fees and, if so, the amount of any fees. At this
hearing, the parties may present appropriate testimony,
written evidence and arguments.’’ (Emphasis in origi-
nal; footnote omitted.) As the court noted, a claim under
the Common Interest Ownership Act requires that a
violation of the act occurred during a foreclosure. The
court determined that there was sufficient disagree-
ment about the facts to require a subsequent hearing
to establish whether a violation of the act had occurred.
Thus, this count under the Common Interest Ownership
Act remained open following the court’s ruling on the
plaintiff’s motion for summary judgment. Accordingly,
there was no final judgment. See Practice Book § 61-2
(providing that judgment is final when judgment has
been rendered on entire counterclaim).
Prior to this appeal, Marguerite filed a motion for
written determination of finality for the purposes of
appeal under Practice Book § 61-4 (a),8 demonstrating
an awareness that a final judgment had not been ren-
dered by the trial court. The court, Moukawsher, J.,
granted the motion. Marguerite,9 however, did not file
a motion seeking permission from the Chief Judge of
this court to file an appeal under Practice Book § 61-4
(b).10 The defendants’ appeal to this court followed.
Before oral argument, this court notified the parties ‘‘to
be prepared to address at oral argument whether the
appeal should be dismissed for lack of a final judgment
on the ground that the trial court’s judgment did not
dispose of the entire counterclaim.’’
We begin by setting forth the applicable standard of
review and legal principles that guide our review.
‘‘When judgment has been rendered on an entire com-
plaint . . . such judgment shall constitute a final judg-
ment. . . . As a general rule, however, a judgment that
disposes of only a part of a complaint is not final, unless
it disposes of all of the causes of action against the
appellant.’’ (Citation omitted; internal quotation marks
omitted.) Meribear Productions, Inc. v. Frank, 328
Conn. 709, 717, 183 A.3d 1164 (2018). ‘‘The lack of a
final judgment implicates the subject matter jurisdiction
of an appellate court to hear an appeal. A determination
regarding . . . subject matter jurisdiction is a question
of law [and, therefore] our review is plenary. . . . Nei-
ther the parties nor the trial court . . . can confer juris-
diction upon [an appellate] court. . . . The right of
appeal is accorded only if the conditions fixed by statute
and the rules of court for taking and prosecuting the
appeal are met. . . . It is equally axiomatic that, except
insofar as the legislature has specifically provided for
an interlocutory appeal or other form of interlocutory
appellate review . . . appellate jurisdiction is limited
to final judgments of the trial court.’’ (Citation omitted;
internal quotation marks omitted.) Ledyard v. WMS
Gaming, Inc., 330 Conn. 75, 84, 191 A.3d 983 (2018);
see also General Statutes § 52-263.
On appeal, the defendants argue that all that is left
to be resolved in this case is the amount of attorney’s
fees to be awarded under the Common Interest Owner-
ship Act. Thus, they argue that, pursuant to Paranteau
v. DeVita, 208 Conn. 515, 523, 544 A.2d 634 (1988), their
appeal is from a final judgment. This case, however,
does not fall within the parameters of Paranteau
because the Common Interest Ownership Act count
remains unresolved. It is well settled that ‘‘a judgment
on the merits is final for purposes of appeal even though
the recoverability or amount of attorney’s fees for the
litigation remains to be determined.’’ (Internal quota-
tion marks omitted.) Ledyard v. WMS Gaming, Inc.,
supra, 330 Conn. 85. This bright line rule applies even
to cases ‘‘ ‘in which the application of the bright line
[rule] would mean that an attorney’s fees award that
would otherwise be considered integral to the judgment
on the merits would nevertheless be severable from
that judgment for purposes of finality,’ ’’; id., 87; such
as in foreclosure actions. See also Paranteau v. DeVita,
supra, 208 Conn. 522–23.
Our Supreme Court in Hylton v. Gunter, 313 Conn.
472, 97 A.3d 970 (2014), ‘‘conclude[d] that an appealable
final judgment existed when all that remained for the
trial court to do was determine the amount of the attor-
ney’s fees comprising the common-law punitive dam-
ages that it previously had awarded.’’ Id., 487. Similarly,
our Supreme Court in Ledyard determined that there
was an appealable final judgment when ‘‘[a]ll that
remained to be done after the trial court’s decision was
for the plaintiff to file a motion for attorney’s fees,
which it did, and for the court to conduct a hearing on
that motion to determine the amount of those fees
. . . .’’ Ledyard v. WMS Gaming, Inc., supra, 330
Conn. 89.
Here, unlike in Hylton or Ledyard, more than a deter-
mination of the amount of attorney’s fees remained
to be done. The court here left a substantive claim
unresolved. As noted previously in this opinion, the
court explained that the claim for attorney’s fees was
based on alleged underlying violations of the Common
Interest Ownership Act. The court determined that
there were ‘‘enough disputes over the facts and how to
apply the law to them to merit a hearing on whether
to exercise its discretion to award fees and, if so, the
amount of any fees.’’ (Emphasis added.) Therefore, the
court still must determine whether a violation of the
Common Interest Ownership Act occurred during the
foreclosure and not simply the amount of attorney’s
fees to be awarded after a violation has been found.
This requires, as the court concluded, a subsequent
hearing on the merits. Thus, contrary to the defendants’
argument, this case does not fall within the rule
announced in Paranteau and its progeny. Accordingly,
this court lacks subject matter jurisdiction over the
appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
For clarity, we refer to the defendants Marguerite Rompre and Bertrand
Rompre by their first names where appropriate throughout this opinion.
Although additional defendants were named in the complaint, they are not
parties to this appeal.
2
The defendants claim: (1) ‘‘[t]he trial court erred when [it] misapplied
the burden of proof in its review of the summary judgment motion and
objection and further failed to view the evidence in a light most favorable
to the nonmoving party’’; (2) ‘‘[t]he trial court further erred in granting
summary judgment on the first counterclaim wherein it overlooked and
misinterpreted evidence, especially as it related to damages, misinterpreted
the [Common Interest Ownership Act, General Statutes § 47-200 et seq.]
(CIOA), and rendered a decision that was not legally or logically correct’’;
(3) ‘‘[t]he trial court further erred in granting summary judgment on the
vexatious litigation counterclaim, (a) in finding there was probable cause
when there clearly was not, (b) in relying upon the flawed argument that
the bald assertion of reliance upon the advice of counsel is an absolute
defense without any evidence to satisfy the elements of the defense, and
(c) in granting the plaintiff’s motion as it pertained to vexatious litigation,
sua sponte, when it had no authority to do so’’; (4) ‘‘[t]he trial court further
erred when grant[ing] summary judgment on the breach of contract counter-
claim when the declaration, bylaws and CIOA, that have been legally estab-
lished to be a contract between the association and unit owner were the
elements of a cause of action were established and the duties breached
resulting in damages’’; (5) ‘‘[t]he trial court further erred in granting summary
judgment on the breach of implied duty of good faith and fair dealing where
it misinterpreted that bad faith can be established through evidence of
neglect or refusal to fulfill a duty or contractual obligation, and can further
be established by inaction’’; (6) ‘‘[t]he trial court further erred in granting
summary judgment on the negligence claim, in misconstruing and overlook-
ing the evidence before the court, misinterpreting the statutory authorization
to award attorney’s fees and costs, and failed to view the evidence in the
light most favorable to the nonmoving party’’; (7) ‘‘[t]he trial court further
erred in granting summary judgment on the breach of fiduciary claim, in
misreading and overlooking the evidence before the court, misinterpreting
the statutory authorization to award attorney’s fees and costs, and failed
to view the evidence in the light most favorable to the nonmoving party’’;
(8) ‘‘[t]he trial court further erred in granting summary judgment on the
slander of title claim, in misconstruing and overlooking the evidence before
the court as to the filing lacked good faith, misinterpreting the statutory
authorization to award attorney’s fees and costs, failing to view the evidence
in the light most favorable to the nonmoving party’’; (9) ‘‘[t]he trial court
further erred in granting summary judgment on the claim brought pursuant to
General Statutes § 47-278, wherein it misinterpreted the statutory language,
which proscribes that other damages are deemed collectable, aside from
attorney’s fees and costs when a unit owner seeks to enforce a right granted
or obligation imposed by the declaration, bylaws and/or CIOA’’; (10) ‘‘[t]he
trial court further abused its discretion in granting the plaintiff permission
to file for summary judgment when a trial was scheduled, with the knowledge
that it had just recently denied discovery motions filed by the defendants
to compel discovery, and barred discovery even further in its standing orders
all to the prejudice of the defendants.’’
3
The plaintiff filed the underlying foreclosure action against both Margue-
rite Rompre and Bertrand Rompre. Bertrand, however, was not an owner
of the property. Bertrand was subsequently removed by the plaintiff. The
parties were asked by this court to address the issue of Bertrand’s standing
at oral argument. In light of our dismissal of the entire appeal, we do not
address this issue.
4
General Statutes § 47-258 (m) (1) provides: ‘‘An association may not
commence an action to foreclose a lien on a unit under this section unless:
(A) The unit owner, at the time the action is commenced, owes a sum equal
to at least two months of common expense assessments based on the
periodic budget last adopted by the association pursuant to subsection (a)
of section 47-257; (B) the association has made a demand for payment in
a record and has simultaneously provided a copy of such record to the
holder of a security interest described in subdivision (2) of subsection (b)
of this section; and (C) the executive board has either voted to commence
a foreclosure action specifically against that unit or has adopted a standard
policy that provides for foreclosure against that unit.’’
5
General Statutes § 47-258 (m) (2) provides: ‘‘Not less than sixty days
prior to commencing an action to foreclose a lien on a unit under this
section, the association shall provide a written notice by first class mail to
the holders of all security interests described in subdivision (2) of subsection
(b) of this section, which shall set forth the following: (A) The amount of
unpaid common expense assessments owed to the association as of the
date of the notice; (B) the amount of any attorney’s fees and costs incurred
by the association in the enforcement of its lien as of the date of the notice;
(C) a statement of the association’s intention to foreclose its lien if the
amounts set forth in subparagraphs (A) and (B) of this subdivision are not
paid to the association not later than sixty days after the date on which the
notice is provided; (D) the association’s contact information, including, but
not limited to, (i) the name of the individual acting on behalf of the associa-
tion with respect to the matter, and (ii) the association’s mailing address,
telephone number and electronic mail address, if any; and (E) instructions
concerning the acceptable means of making payment on the amounts owing
to the association as set forth in subparagraphs (A) and (B) of this subdivi-
sion. Any notice required to be given by the association under this subsection
shall be effective when sent.’’
6
On that same day, September 22, 2015, and subsequently on March 18,
2016, the defendants filed additional claims against other parties associated
with the plaintiff. These claims and parties are not at issue in this appeal.
7
General Statutes § 47-278 (a) provides: ‘‘A declarant, association, unit
owner or any other person subject to this chapter may bring an action to
enforce a right granted or obligation imposed by this chapter, the declaration
or the bylaws. The court may award reasonable attorney’s fees and costs.’’
8
Practice Book § 61-4 (a) provides in relevant part: ‘‘This section applies
to a trial court judgment that disposes of at least one cause of action where
the judgment does not dispose of either of the following: (1) an entire
complaint, counterclaim, or cross complaint, or (2) all the causes of action
in a complaint, counterclaim or cross complaint brought by or against a party.
. . . Such a judgment shall be considered an appealable final judgment only
if the trial court makes a written determination that the issues resolved by
the judgment are of such significance to the determination of the outcome
of the case that the delay incident to the appeal would be justified, and the
chief justice or chief judge of the court having appellate jurisdiction concurs.
. . .’’ (Emphasis in original.)
9
Only Marguerite filed the Practice Book § 61-4 (a) motion.
10
Practice Book § 61-4 (b) provides in relevant part: ‘‘Within twenty days
after notice of such a determination in favor of appealability has been sent
to counsel, any party intending to appeal shall file a motion for permission
to file an appeal with the clerk of the court having appellate jurisdiction.
The motion shall state the reasons why an appeal should be permitted. . . .
The motion and any opposition papers shall be referred to the chief justice
or chief judge to rule on the motion. . . .’’