Superior Court of Connecticut.

Woodcrest Condominium Assn. v. Michelle Ruby et al.

CV106004962S

    Decided: January 19, 2012

MEMORANDUM OF DECISION MOTION TO STRIKE, NO. 107

I

BACKGROUND

The underlying action in this matter involves a foreclosure of unpaid condominium common charges and fines pursuant to the Declaration of Condominium of Woodcrest Condominium Association (declaration) and the provisions of the Common Interest Ownership Act. See General Statutes § 47–200 et seq.   On June 11, 2010, the defendants filed an answer to the complaint, along with six special defenses and a three-count counterclaim.   On April 15, 2011, the plaintiff filed a motion to strike counts one through three of the defendants’ counterclaim, No. 107, to which the defendants have responded with an objection, No. 114, filed on October 7, 2011.

At the hearing before the court in this matter on January 9, 2012, count two of the counterclaim, involving an alleged Connecticut Unfair Trade Practices Act (CUTPA) violation, was withdrawn by the defendants, leaving counts one and three in dispute between the parties.   The counterclaims arise generally from disputed fines, imposed upon the defendants for hanging planters on the deck of their condominium unit.

The defendants essentially assert in count one of their counterclaim that the plaintiff improperly assessed fines against them and refused to accept condominium fee payments, timely tendered to the association.   The defendants specifically assert the following:  (1) that the imposition of fines was improper because altering their deck by hanging planters was not impermissible pursuant to the bylaws;  (2) that the plaintiff improperly voted on the propriety of the defendants’ alterations without notice, an opportunity to be heard or majority vote;  (3) that alterations were permitted for others, including the plaintiff’s president;  (4) that the improper actions of the plaintiff were done as a pretext;  and (5) that this issue was improperly publicized and led to “atomicity” with other unit owners.

By these actions, the defendants assert in count one that the plaintiff is a creditor engaged in abusive, harassing, fraudulent, deceptive or misleading actions in its attempt to collect a debt in violation of General Statutes § 36a–646.   In count three of the counterclaim, the defendants generally restate count one and additionally allege that the plaintiff’s negligence and carelessness has caused them emotional distress.   For reasons set forth below, the motion to strike is granted.

II

MOTION TO STRIKE

“The function of a motion to strike is to test the legal sufficiency of a pleading;  it admits all facts well pleaded.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).

“[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action ․ A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim.”  (Citations omitted;  internal quotation marks omitted.)  Fairfield Lease Corp. v. Romano’s Auto Service, 4 Conn.App. 495, 496, 495 A.2d 286 (1985).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”   (Internal quotation marks omitted.)  Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).   Specifically, the court must “assume the truth of both the specific factual allegations and any facts fairly provable thereunder” and “read the allegations broadly, rather than narrowly.”   (Internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006).   This requirement of favorable construction includes facts “necessarily implied and fairly provable under the allegations.”  (Internal quotation marks omitted.)  Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993).

A. Creditor Collections Claim

In seeking to strike count one of the defendants’ counterclaim, the plaintiff asserts that it is not a creditor within the definition of General Statutes § 36a–645.1  It specifically asserts that, in the normal course of business as a condominium association, it does not extend credit to consumers.   Instead, it is a managerial organization for the common purposes of an association of condominium unit owners.   Therefore, the plaintiff concludes that it is not a creditor and that the defendants are not consumer debtors within the meaning of the statute.   The court agrees.

The court finds that the facts surrounding this alleged debt for fines imposed by a condominium association do not constitute a consumer transaction, resulting in a consumer debt, based upon the language of the statute cited.   Furthermore, the defendants cite no authority supporting a contrary conclusion.   For these reasons, the plaintiff’s motion to strike count one of the defendants’ counterclaim is granted.

B. Negligent Infliction of Emotional Distress

In response to count three of the defendants’ counterclaim, the plaintiff asserts it has no legal duty to the defendants that would give rise to a cause of action for negligent infliction of emotional distress.   It specifically claims that pursuant to the Connecticut Common Interest Ownership Act, the declaration and bylaws are not a contract and money damages therefore cannot be sought for a claim of breach of the declaration or bylaws, or for a breach of the duty of fair dealing in a contractual relationship

To survive a motion to strike and establish a claim of negligent infliction of emotional distress, a plaintiff is required to allege facts supporting the following elements:  “(1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff’s distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant’s conduct was the cause of the plaintiff’s distress.”  Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003)

1. Foreseeability and Duty

The requirement of foreseeability in negligent infliction of emotional distress claims, however, is different from that which is required in general negligence actions.  Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 447–48, 782 A.2d 87 (2001).   In these claims “the defendant is not responsible for the plaintiffs’ emotional distress unless it or its agents knew or should have realized that its conduct involved an unreasonable risk of causing emotional distress ․ [which] might result in illness or bodily harm.”  (Internal quotation marks omitted.)  Id.

In Perodeau v. Hartford, 259 Conn. 729, 792 A.2d 752 (2002), our Supreme Court clarified the distinguishing nature of a cause of action involving the tortious infliction of emotional distress.   In discussing the foreseeability of harm in employment cases, the court in Perodeau additionally focused on the establishment of a duty to reasonably foresee a particular harm.   In light of the plaintiff’s objection, that it owes no duty in this regard to the defendants in the present case, the court must analyze the nature of the duty of a condominium association to condominium unit owners.

“Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action.   The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual ․ Although it has been said that no universal test for [duty] ever has been formulated ․ our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant.   The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised ․ In negligent infliction of emotional distress claims, unlike general negligence claims, the foreseeability of the precise nature of the harm to be anticipated [is] a prerequisite to recovery even where a breach of duty might otherwise be found.”  (Citations omitted;  internal quotation marks omitted.)  Perodeau v. Hartford, supra, 259 Conn. 754.

“A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists.   Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed ․ A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection ․ While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world.   Every injury has ramifying consequences, like the ripplings of the waters, without end.   The problem for the law is to limit the legal consequences of wrongs to a controllable degree ․ The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant’s responsibility should extend to such results.”  Id., 756.

In discussing the establishment of a duty in Perodeau, the court relied up6n the analysis of Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997), a case involving the duty owed to fellow sports participants.  “In Jaworski, this court recognized four factors to be considered in determining the extent of a legal duty as a matter of policy:  (1) the normal expectations of the participants in the activity under review;  (2) the public policy of encouraging continued vigorous participation in the activity, while protecting the safety of the participants;  (3) the avoidance of increased litigation;  and (4) the decisions of other jurisdictions.  Jaworski v. Kiernan, supra, 241 Conn. 407.”  Perodeau v. Hartford, supra, 259 Conn. 756–57.

2. Duty of Condominium Associations

Outside of negligence claims involving premises liability, there is little discussion in our case law regarding the scope of the duty owed by condominium associations to unit owners.2  In discussing the nature of the powers and duties of condominium associations, the Supreme Court has looked to the language and purpose of the Common Interest Ownership Act. See General Statutes § 47–200 et seq.  “The act is a comprehensive legislative scheme regulating all forms of common interest ownership that is largely modeled on the Uniform Common Interest Ownership Act ․ The act addresses the creation, organization and management of common interest communities and contemplates the voluntary participation of the owners.   It entails the drafting and filing of a declaration describing the location and configuration of the real property, development rights, and restrictions on its use, occupancy and alienation ․ the enactment of bylaws ․ the establishment of a unit owners’ association [to manage the condominium community] ․ and an executive board to act on ․ behalf [of the association ․ It anticipates group decision-making relating to the development of a budget, the maintenance and repair of the common elements, the placement of insurance, and the provision for common expenses and common liabilities ․

“Several provisions of the act are of particular significance in the present case.   Except in certain designated situations, a declaration may be amended ‘only by vote or agreement of unit owners of units to which at least sixty-seven per cent of the votes in the association are allocated ․’ General Statutes § 47–236(a).   A condominium association also is empowered, subject to the declaration provisions, to ‘[a]dopt and amend bylaws and rules and regulations’;  General Statutes § 47–244(1);  and to ‘[r]egulate the use ․ of common elements ․’ General Statutes § 47–244(6).   The condominium’s board of directors is not permitted, however, to amend the declaration on behalf of the association.   See General Statutes § 47–245(b).”  (Citations omitted;  internal quotation marks omitted.)  Weldy v. Northbrook Condominium Assn., Inc., 279 Conn. 728, 735–36, 904 A.2d 188 (2006).

General Statutes § 47–244 generally defines the powers of condominium associations to include the authority to enact and enforce rules concerning the use of common elements of the condominium development, which may include decks pursuant to a declaration.   In particular, an association “[m]ay ․ after notice and an opportunity to be heard, levy reasonable fines for violations of the declaration, bylaws, rules and regulations of the association.”  General Statutes § 47–244(a)(11).   However, in “exercising the association’s power to impose sanctions or commencing an action for a violation of the declaration, bylaws and rules”;  § 47–244(g);  “the executive board may not be arbitrary or capricious in taking enforcement action.” § 47–244(h).

Generally, statutory and other law may provide the basis for determining a person’s duty and the standard of care owed to a private party.  “[U]nder general principles of tort law, a requirement imposed by statute may establish the applicable standard of care to be applied in a particular action.   It is well established that in order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions.   First, the plaintiff must be within the class of persons protected by the statute ․ Second, the injury must be of the type which the statute was intended to prevent.”  (Citations omitted;  internal quotation marks omitted.)  Gore v. People’s Savings Bank, 235 Conn. 360, 375–76, 665 A.2d 1341 (1995) (liability may be imposed upon a landlord for failure to comply with a statutory duty with regard to lead paint);  see also Considine v. Waterbury, 279 Conn. 830, 863, 905 A.2d 70 (2006) (the building code is both relevant and material to the question of the standard of care).

Based upon the Common Interest Ownership Act, it appears that condominium associations owe a duty of care to the condominium unit owners not to act arbitrarily or capriciously in the imposition and enforcement of fines for violations of its bylaws, which must further be established by proper procedures.   In reading count three of the defendants’ counterclaim broadly, and favorably construing the defendants’ allegations as required;  Greco v. United Technologies Corp., supra, 277 Conn. 347;  the court finds that it supports a violation of such a duty of care.   However, this is not the end of the court’s inquiry into the plaintiff’s motion to strike.

3. Counterclaims In Condominium Foreclosures

Generally, special defenses and counterclaims are limited in foreclosures, especially as they relate to the nonpayment of condominium association fees.   In a recent Appellate Court decision, however, a distinction is drawn with regard to the nonpayment of fines.  “Although we have discovered no statutory or appellate authority regarding the admissibility of special defenses in an action to foreclose a statutory lien instituted by a condominium association based on a unit owner’s nonpayment of fines, several trial court decisions have held that special defenses and counterclaims will not lie in an action brought by a condominium association to foreclose liens based on a unit owner’s failure to pay common charges.”  Congress Street Condominium Assn., Inc. v. Anderson, 132 Conn.App. 536, 541–42 (2011).

In doing so, courts have “reasoned that the nonpayment [of common charges] jeopardizes the continued existence of the entire condominium community and shifts the need for payment to other innocent unit owners ․ With respect to common charges, our trial courts also have determined that, if the defendant wishes to pursue his grievance against the association, it must be done in a separate action, not by a refusal to pay his common charges.   Otherwise, courts have reasoned, the other unit owners, who are entitled to have the budget funded by all of the unit owners, would have their economic welfare threatened ․ We conclude, therefore, that due to the inherent differences in the application and function of fines and common charges, they should not be treated interchangeably in a foreclosure action.   Rather, the permissible special defenses and counterclaims in an action to foreclose a statutory lien based on the imposition of fines by a condominium association should be determined in light of traditional mortgage foreclosure standards ․” (Citations omitted;  internal quotation marks omitted.)  Id., 543–44.

4. Transaction Test Applicable to Foreclosures

In the present case, the traditional test to be applied is whether the counterclaim relates to the underlying transaction.  Practice Book § 10–10 specifically provides that a defendant may file a counterclaim against a plaintiff provided that “each such counterclaim ․ arises out of the transaction or one of the transactions which is the subject of the plaintiff’s complaint.”   The purpose of limiting counterclaims to the underlying transaction is “judicial economy, avoidance of multiplicity of litigation, and avoidance of piecemeal disposition of what is essentially one action ․” Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983).   In making such a determination, a court must consider whether a substantial duplication of effort would result if each claim was tried separately.  Id. It is well established that in Connecticut, defenses and counterclaims in a foreclosure action must relate to the making, validity, or enforcement of the mortgage note.  Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 15, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).

In count three of the defendants’ counterclaim, it is alleged that the plaintiff seeks to foreclose a lien based upon fines arbitrarily imposed as a pretext, without notice or a hearing and without authority in the association’s bylaws.   The allegation is that the plaintiff’s actions in this regard have resulted in the negligent infliction of emotional distress.

The court finds that the underlying claim and counterclaim relate to the same underlying transaction.   The court further finds that a substantial duplication of effort would result if these claims were tried separately.   Based upon these considerations and the allegations in count three of the defendants’ counterclaim, the court finds that the transaction test has been met in the present case.

5. Pleading Requirements

Although the allegations in count three of the defendants’ counterclaim may meet the general requirements of a breach of duty and harm in an action based upon negligence, as well as the transaction test required of counterclaims in foreclosure matters, there are specific pleading requirements for a claim based upon the negligent infliction of emotional distress.  “To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following:  (1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff’s distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant’s conduct was the cause of the plaintiff’s distress.   Thus, [t]he plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm ․

“The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm ․ In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm.”  (Citation omitted;  internal quotation marks omitted.)  Stancuna v. Schaffer, 122 Conn.App. 484, 490, 998 A.2d 1221 (2010).

Despite reading count three of the defendants’ counterclaim broadly, and favorably construing the allegations as required;  Greco v. United Technologies Corp., supra, 277 Conn. 347;  the defendants have failed to allege any conduct that would lead the plaintiff to foresee that its actions would cause the defendants emotional distress likely to lead to illness or bodily harm.   Based upon these considerations, the plaintiff’s motion to strike count three of the defendants’ counterclaim is granted.

SO ORDERED.

BY THE COURT,

MARK H. TAYLOR

FOOTNOTES

FN1. General Statutes § 36a–645 provides in relevant part:  “As used in sections 36a–645 to 36a–647, inclusive, unless the context otherwise requires:  (1) ‘Consumer debtor’ means any natural person residing in this state who owes a debt to a creditor.  (2) ‘Creditor’ means (A) any person to whom a debt is owed by a consumer debtor and such debt results from a transaction occurring in the ordinary course of such person’s business, or (B) any person to whom such debt is assigned.”.  FN1. General Statutes § 36a–645 provides in relevant part:  “As used in sections 36a–645 to 36a–647, inclusive, unless the context otherwise requires:  (1) ‘Consumer debtor’ means any natural person residing in this state who owes a debt to a creditor.  (2) ‘Creditor’ means (A) any person to whom a debt is owed by a consumer debtor and such debt results from a transaction occurring in the ordinary course of such person’s business, or (B) any person to whom such debt is assigned.”

FN2. In granting a motion to strike a claim for injunctive relief against a condominium association in a Superior Court case, the court declined to find a fiduciary duty to enforce its rules to police the behavior of a unit owner.   Instead, the court looked to the duties imposed by statute to determine the duties lawfully imposed upon the association.   See Onofrio v. Hallisey, Superior Court, judicial district of Middlesex, Docket No. CV 97 0081373 (April 9, 1998, Hodgson, J.) (21 Conn. L. Rptr. 663).   Contra, see Buckingham v. Weston Village Homeowners Assn., 571 N.W.2d 842, 844 (N.D.1997) (condominium associations have a fiduciary duty to their unit owners)..  FN2. In granting a motion to strike a claim for injunctive relief against a condominium association in a Superior Court case, the court declined to find a fiduciary duty to enforce its rules to police the behavior of a unit owner.   Instead, the court looked to the duties imposed by statute to determine the duties lawfully imposed upon the association.   See Onofrio v. Hallisey, Superior Court, judicial district of Middlesex, Docket No. CV 97 0081373 (April 9, 1998, Hodgson, J.) (21 Conn. L. Rptr. 663).   Contra, see Buckingham v. Weston Village Homeowners Assn., 571 N.W.2d 842, 844 (N.D.1997) (condominium associations have a fiduciary duty to their unit owners).

Taylor, Mark H., J.

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