Bradley v. Mullenix, 53781
| Decision Date | 22 November 1988 |
| Docket Number | No. 53781,53781 |
| Citation | 763 S.W.2d 272 |
| Parties | Napoleon & Marguerite BRADLEY, et al., Plaintiffs-Appellants, v. Ivan L. MULLENIX d/b/a Mullenix Development Company, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Alan G. Kimbrell, St. Louis, for plaintiffs-appellants.
Donald W. Paule, St. Louis, for defendant-respondent.
Plaintiffs, as representatives of a class consisting of the purchasers of units in Summerwood Condominiums, filed this action against defendant, Ivan Mullenix, as the developer of the condominium project and in his capacity as manager of the Condominium Association. After a non-jury trial, the court found against plaintiffs. On appeal plaintiffs assert the trial court erred in finding every unit owner had been reasonably assessed his or her proportionate share of the expenses of administration, maintenance and repair of common elements, and in denying recovery of a sum paid by each purchaser at closing for survey costs. We affirm in part and reverse and remand in part.
On September 7, 1979 defendant owned a parcel of real estate in St. Louis County. On that date he recorded certain declarations submitting the property to the provisions of the Condominium Property Act, §§ 448.005 to 448.210, RSMo. 1986. Two documents were recorded: A declaration of Covenants, Conditions and Restrictions for Commons of Summerwood (Declaration of Commons) and a Declaration of Condominium Bylaws and Indentures (Declaration of Condominium). The original Declaration of Condominium provided for four buildings containing a total of 41 units. Amendments were made from time to time as the development progressed for additional buildings and units, reaching a total of 132 units in 11 buildings as of November 16, 1983. The Declaration of Condominium defines "common elements" as "all portions of the property except the units" and further provides:
Section 3.2: INTEREST IN COMMON ELEMENTS: The percentage of interest in each owner in the Common Elements is shown in Exhibit C hereto attached and each units owner shall bear the same proportionate share of expense and administration as the percentages shown bears to 100.
Exhibit C contained a list of the proposed units together with the percentage of interest in the common elements of the complex allocated to each unit. As amendments were filed adding additional buildings and units to the complex, the percentages set forth in Exhibit C were correspondingly amended. The Declaration also provided for a Board of Managers (originally and at all times pertinent to this case the developer, defendant herein, constituted and exercised the powers of the Board of Managers) to make annual estimates of cost and expenses for the ensuing calendar year and to assess each unit owner a percentage thereof equal to his percentage of ownership of the common elements, to be paid in 12 monthly installments.
The Declaration of Commons, filed simultaneously with the Condominium Declaration purported to apply to a part of the real property designated for development as a condominium complex. According to defendant's testimony and his appellate brief the
Declaration of Commons "provided for certain amenities such as a clubhouse, swimming pool and tennis courts which would be available to all residents and to provide for the care and maintenance of these amenities together with the care and maintenance of overall common property such as streets throughout the complex, as contrasted with the maintenance of 'common elements' within a building such as exterior walls, roof, hallways etc ..., which were governed by the Declaration of Condominium."
Administration of the "commons" was vested in trustees, defendant, his wife, and two employees, empowered to estimate cost and expenses for the coming year and to levy assessments to be paid as a part of the condominium assessments. However, the Declaration of Commons provided for assessments to be fixed at a uniform rate for all units, except uncompleted units were totally exempt from assessment and completed but unsold units were assessed at 25 percent of the rate paid by individual owners.
The evidence showed that a single annual assessment was levied against each unit owner for estimated expenses for "common elements" and for "commons" and the funds received through monthly payments were commingled in a bank account maintained by defendant under the name "Summerwood Associates" from which both types of expenses were paid. The evidence disclosed two continuing deviations from the formula set forth in these Declarations. Defendant paid the full uniform assessment for "commons" for units completed but unsold, rather than the 25 percent provided for in the Declaration of Commons. Assessments for "common element" expenses were determined not by the percentage of individual unit owner's interest in the common elements as set forth in Exhibit C, but on the basis of the percentage of interest of owners of completed units. Because all 41 units listed on Exhibit C, and all of those listed on subsequent amendments to Exhibit C, were not completed when assessments were levied, the percentage of expenses charged to each completed unit was larger than the percentage assigned to these units on Exhibit C. Plaintiffs seek to recover what they claim to be overcharges paid by them because of this larger percentage rate and to recover damages for the failure of defendant to pay any portion of the expenses allocated by percentages on Exhibit C to uncompleted units owned by him.
The trial court held that the method of assessing unit owners was "fair and reasonable" and found that " 'unit' for purposes of Chapter 448 and the Declaration of Condominium and Declaration of Commons is not a 'unit' until it has been completed and is capable of occupancy." Interpretation of clear language of a contract is a question of law. Cal Caulfield & Company v. City of Belton, 687 S.W.2d 207, 209 (Mo.App.1984). Similarly, the construction of a statute is a matter of law, not a matter of discretion. State ex rel. Igoe v. Bradford, 611 S.W.2d 343, 350 (Mo.App.1980). On appellate review we give deference to the findings of fact in a judge tried case but we make an independent evaluation of the conclusions of law the trial court draws from its factual findings and from the admitted facts. Clark County Sales Company v. Hester, 732 S.W.2d 569, 572 (Mo.App.1987). We find inescapable the conclusion that the procedure adopted by defendant for the levying of assessments against unit owners for their proportionate share of common elements expenses fails to comply with the requirements of the Condominium Property Act and with the clear provisions of the Declaration of Condominium.
Section 448.030.1(3) requires that a Declaration include a statement showing the percentage of ownership interest in the common elements allocated to each unit. Section 3.2 of the Declaration of Condominium complied with the statute by reference to the attached Exhibit C. Section 448.010(1) defines "common elements" as all portions of the property except the units. Section 1.1 of the Declaration of Condominium contains a similar definition and § 3.1 thereof similarly delineates "common elements", although in much greater detail. Section 448.080.1 limits each unit owner's proportionate share of the expenses of administration, maintenance and repair of common elements to the same ratio as his percentage of ownership in the common elements as set forth in the Declaration. The Declaration of Condominium contains a similar provision limiting each unit owner's share of common element expense to the percentage shown on Exhibit C and further provides in § 7.2(a) for annual assessments according to each unit owner's percentage of ownership in the common elements. However, defendant admits the percentages shown on Exhibit C were never used to determine each unit owner's proportionate share of the common element expenses. Rather, a different set of percentages was calculated based upon the number of completed units. The effect of excluding the units...
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