Stage Neck Owners Ass'n v. Poboisk & Jarvis
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions   
Decision:	1999 ME 52 
Docket:	Yor-98-589	
Argued:	March 3, 1999
Decided:	April 5, 1999	

Panel:		WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER,
		and CALKINS, JJ.





	
	

STAGE NECK OWNERS ASSOCIATION

v.

DAVID POBOISK AND JOAN JARVIS{1}

WATHEN, C.J. 

	[¶1]  Defendants David Poboisk and Joan Jarvis appeal from the
decision of the Superior Court (York County, Crowley, J.) affirming the
summary judgment of the District Court (York, Levy, J.).  The District Court
ruled that plaintiff Stage Neck Owners Association's 1997 reserve fund
assessment against condominium owners was valid, even though the earlier
1996 reserve fund assessment was invalid.  On appeal, defendants challenge: 
(1) the court's holding that the 1997 reserve fund assessment was valid; and
(2) the court's refusal to award them attorney fees even though they were
the prevailing party with respect to the 1996 reserve fund assessment.  We
affirm the judgment.
	[¶2]  The facts as developed for purposes of the summary judgment
may be summarized as follows:  Defendants are condominium unit owners at
the Stage Neck Colony Condominium.  In August 1996, the Stage Neck
Owners Association voted to create a reserve account and assessed each
owner approximately $1,000 for fiscal year 1996-1997.  The Board of
Directors of the Stage Neck Owners Association adopted the reserve fund
assessment plan.  Defendants questioned the validity of the Board of
Directors vote, arguing that it violated the Association's by-laws in several
respects, including that it was assessed on an annual rather than a monthly
basis and was not calculated by percentage share of ownership in the
condominium development.  Defendants refused to pay the assessment.
	[¶3]  In apparent recognition of defendants' challenge, in April 1997,
the Board voted to assess each condominium owner approximately $2000 in
the fiscal year 1997-1998  for the reserve fund.  Owners who had paid the
1996 assessment received credit toward the 1997 assessment.  Defendants
again challenged the assessment, this time on the grounds that the Board
vote violated the Association by-laws because there were two vacancies on
the five member Board at the time of the vote and that the assessment
created a retroactive fee.
	[¶4]  Before the 1997 assessments, plaintiff Stage Neck Owners
Association filed complaints against defendants and asked that the court:

1.  Determine that the assessment voted by the Association and
approved by the Board is a valid, legal assessment within the
authority of the Board of Directors and can be enforced in
accordance with the Condominium Declaration and By-Laws, and
2.  Enter judgment in favor of the Plaintiff against the
Defendants in the amount of $1,208.00 plus statutory interest,
costs and attorney's fees, and
3.  For such other relief as may be deemed just.{2}

Both parties moved for a summary judgment, and, at the hearing, asked the
court to determine the validity of the 1997 assessment that occurred after
the plaintiff's complaint was filed but was discussed by both parties in their
respective motions for summary judgment.  The court ruled that the Board
vote  in 1996 violated the Association's by-laws and was therefore invalid but
that the 1997 vote was valid and  created an enforceable assessment against
defendants.  
	[¶5]  Defendants asked for attorney fees pursuant to the Maine
Condominium Act, 33 M.R.S.A. § 1603-116(g) (1999).  The court ruled that
both parties were responsible for their own attorney fees, noting that
defendants prevailed only with respect to the 1996 assessment, whereas
plaintiff prevailed with respect to the 1997 assessment.  On appeal, the
Superior Court affirmed the District Court's judgment, and with respect to
the claims for attorney fees, held that the statute did not apply because
plaintiff's action sought to collect an assessment rather than to enforce a
lien.
	[¶6]  We conclude that the District Court did not err in holding that
the Board's 1997 assessment was valid.  Although only three of the five
director positions on the Board of Directors were filled at the time of the
vote, the Association's by-laws did not prohibit the Board from taking action
while there were vacancies on the Board.  Furthermore, the fact that the
Board credited the owners who paid the 1996 fee when assessing the 1997
fee is of no legal significance.  The by-laws do not preclude the Board from
imposing a retroactive assessment.{3}
	[¶7]  Defendants contend that the Maine Condominium Act required
the court to award attorney fees because they prevailed, at least with respect
to the 1996 assessment.  We conclude that plaintiff's request for relief was
broad enough to fall within the terms of the Act.{4}
	[¶8]  The Act provides in relevant part:

(a)  The association has a lien on a unit for any assessment levied
against that unit or fines imposed against its unit owner from the
time the assessment or fine becomes due.  The association's lien
may be foreclosed in like manner as a mortgage on real estate. . .
.
. . . .
(d)  Recording of the declaration constitutes record notice and
perfection of the lien.  No further recordation of any claim of
lien for assessment under this section is required.
	. . . .
(f)  This section does not prohibit actions to recover sums for
which subsection (a) creates a lien, or to prohibit an association
from taking a deed in lieu of foreclosure.
(g)  A judgment or decree in any action or suit brought under
this section shall include costs and reasonable attorney's fees for
the prevailing party.

33 M.R.S.A. § 1603-116 (emphasis added). 
	[¶9]  "In construing a statute we look first to the plain meaning of the
statutory language to give effect to legislative intent, and if the meaning of
the statute is clear on its face, then we need not look beyond the words
themselves."  Cook v. Lisbon Sch. Comm., 682 A.2d 672, 676 (Me. 1996). 
Section 1603-116 creates an automatic lien for any assessment levied
against a condominium unit and establishes the process for enforcement. 
Plaintiff needed to do nothing more than record the declaration of
condominium to provide record notice and perfect liens on defendants'
condominium units for valid assessments.  Although plaintiff did not, in its
complaint, explicitly request the enforcement of the liens and reference the
Act, it sought the validation of its 1996 assessment, which, if granted, in
turn would give rise to an automatic lien.  If defendants continued to refuse
to pay the assessment after the court deemed it valid and entered a money
judgment against defendants, plaintiff could arguably have proceeded to
enforce the lien.  Thus, plaintiff's request for relief invoked section 1603-
116 and triggered the provision for attorney fees.
	[¶10]  Because the statute applies, the court was required to grant
attorney fees to the prevailing party on each issue.  Reviewing the record
before us, there is competent evidence to support the finding that any fees
defendants might be entitled to with regard to the 1996 assessment are less
than the fees plaintiff would be entitled to in the 1997 assessment.  On this
record, defendants have failed to demonstrate that the court erred in any
material way in offsetting the parties' claims for fees.
	The entry is:
				Judgment affirmed.

Attorney for plaintiff:

Sanford Roberts, Esq., (orally)
Roberts & Cohen, P.A.
P O Box 4608
Portsmouth, ME 03802-4608

Attorney for defendants:

Bradley M. Lown, Esq., (orally)
Boynton Waldron Doleac Woodman & Scott, P.A.
P O Box 418
Portsmouth, NH 03802-0418

FOOTNOTES******************************** {1} . Marshall Jarvis was named as a defendant in plaintiff's complaint and judgment was issued against Marshall Jarvis in both District Court and Superior Court. Marshall Jarvis has not, however, joined in this appeal. {2} . Because the reserve fund assessment was based on each unit owner's percentage ownership of the condominium development, each defendant was assessed $1208 in 1996 and $2416 in 1992. {3} . Defendants also argue that the Board's vote on the 1997 assessment violated the Association's by-laws because the vote was not preceded by a revised budget. In the District Court, defendants made this argument with respect to the 1996 assessment but not the 1997 assessment. Even if defendants had preserved this argument, however, the by-laws require only that if "the Board shall deem the amount of the membership assessments to be inadequate by reason of a revision in its estimate of either expenses or other income, the Board shall prepare and cause to be delivered to the members a revised estimated annual budget." In this case, the Board did not deem the membership assessments to be inadequate, and thus no revised budget was required. {4} . Defendants also argue that because plaintiff's complaint did not reference the 1997 assessment, that issue was not validly before the court and therefore plaintiff cannot claim attorney fees as the prevailing party on that issue. Because defendants agreed that the court should declare the validity of the 1997 assessment, defendants' argument on this point is without merit.