First State Bank v. Metro Dist. Condominiums Prop. Owners' Ass'n, Inc.
| Decision Date | 06 February 2014 |
| Docket Number | No. CV–13–349.,CV–13–349. |
| Parties | FIRST STATE BANK, Appellant v. METRO DISTRICT CONDOMINIUMS PROPERTY OWNERS' ASSOCIATION, INC., Appellee. |
| Court | Arkansas Supreme Court |
OPINION TEXT STARTS HERE
Conner & Winters, LLP, by: Todd P. Lewis and Kerri E. Kobberman, for appellant.
Knight Law Firm, PLC, by: K. Vaughn Knight and Mason J. Wann, for appellees.
We accepted certification of the instant case from the Arkansas Court of Appeals, as it involves an issue requiring a first-time interpretation of Arkansas Code Annotated section 18–13–116 (Repl.2003), known as the Arkansas Horizontal Property Act. Appellant First State Bank argues on appeal that the circuit court erred in refusing to extinguish a lien for unpaid assessments held by Appellee Metro District Condominiums Property Owners' Association, Inc. (Metro POA). Appellant also argues that the circuit court erred in awarding Appellee attorney's fees. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(b)(1), (4), (5), and (6) (2013). We affirm.
The record reflects the following facts. On December 2, 2008, Nock–Broyles Land Development, LLC, and Henry D. Broyles executed a promissory note in the amount of $275,000, to purchase a condominium, Unit 270 in the Metro District Condominiums Horizontal Property Regime (Metro HPR), which was located in Fayetteville. The borrowers agreed to pay First State the principal amount, plus interest, by December 2, 2011, unless payment was demanded prior to that date, and executed a real estate mortgage in favor of First State.
Thereafter, on February 23, 2010, Nock–Broyles, Mr. Broyles, and First State entered into a debt-modification agreement, whereby the parties agreed to modify the repayment terms and the loan's maturity date to November 10, 2011. This agreement also added 270 Metro, LLC, as an additional guarantor of all obligations due and owing under the terms of the loan.
Prior to the loan's maturity date, First State demanded payment in full under the terms of the loan agreement. First State then filed an amended complaint in the Washington County Circuit Court on November9, 2011, against Nock–Broyles, 270 Metro, and Metro POA.1 First State alleged that Nock–Broyles had breached and defaulted on its obligations under the loan, as set forth in the promissory note and the debt-modification agreement, and that First State was entitled to collect the money owed from Nock–Broyles and 270 Metro. First State prayed that it be granted judgment against Nock–Broyles and 270 Metro, jointly and severally, in the amount of $247,289.13, plus all unpaid accrued interest and other costs and attorney's fees that might be incurred. First State requested that if payment was not made within ten days that the property be sold at a foreclosure sale and that Nock–Broyles and 270 Metro be held responsible for any deficiency that existed after the sale. Additionally, First State sought a declaration that its judgment be declared the first and superior lien on the real property. It acknowledged that Metro POA might claim an interest in the real property related to unpaid assessments, but asserted that any such interest was inferior to and subject to its mortgage and asked that any interest of Metro POA be foreclosed upon, terminated, and forever extinguished.
No answer was filed by Nock–Broyles or 270 Metro. Metro POA filed an answer and asserted, in relevant part, that its interest in the real property, as created by Metro HPR, dated June 21, 2005, was superior to that of First State.
First State moved for a default judgment against Nock–Broyles and 270 Metro, and subsequently moved for summary judgment as to all parties on July 17, 2012. Therein, First State reasserted that Nock–Broyles and 270 Metro were in default and further asserted that Metro POA had not filed any record of lien against the unit for any unpaid assessments and, regardless, First State's interest in the property was superior to any interest of Metro POA. More specifically, First State argued that under section 18–13–116(c), its mortgage interest in the property was superior to any interest resulting from any unpaid assessments owed to Metro POA. First State again requested the circuit court to find that Metro POA's interest was inferior and to extinguish any such claim it may have.
On September 12, 2012, Metro POA filed a notice of lis pendens, asserting its right to collect certain past-due property owners' association fees and assessments due and owing on Unit 270.
The circuit court entered an order on October 12, 2012, denying without prejudice First State's motion for summary judgment. Thereafter, Metro POA filed a motion for attorney's fees on December 11, 2012, based on the circuit court's ruling that its interest survived First State's foreclosure action and asserted that the master deed and bylaws provided for the collection of attorney's fees. First State responded, arguing that because Metro POA had not complied with its own bylaws by filing a lien for the unpaid assessments, it could not avail itself of the attorney's fees provision in the bylaws. Moreover, First State argued that Metro POA was not entitled to an award of attorney's fees as it had never filed an action or a cross-claim in this case seeking to enforce its claim for unpaid assessments.
On February 6, 2013, the circuit court entered an amended order of default judgment and decree of foreclosure, granting First State judgment against Nock–Broyles and Metro 270 in the amount of $247,289.13, plus interest and costs.2 The judgment gave First State the right to foreclose on the property if the judgment was not paid and appointed the circuit court clerk as Commissioner of the Court to conduct any foreclosure sale. The circuit court also found that Metro POA's interest from the unpaid monthly assessments would survive the foreclosure and would become the liability of whoever purchased the property at the foreclosure sale. Thereafter, First State purchased the property at the foreclosure sale for $148,000, by way of a credit against its judgment.
First State filed a timely notice of appeal on February 15, 2013, specifically stating that it was appealing only that part of the order and amended order finding that Metro POA's interest should not be extinguished and would survive the foreclosure of the property and become the liability of the purchaser. Thereafter, on March 22, 2013, the circuit court entered an order awarding Metro POA attorney's fees in the amount of $1,500. First State filed a supplemental notice of appeal on March 28, 2013, stating its intent to appeal the award of attorney's fees as well. We turn now to the arguments on appeal.
First State first argues that the circuit court properly recognized that it had the superior interest in the real property but erred in its interpretation of section 18–13–116(d) to conclude that Metro POA's interest for the unpaid assessments should not be extinguished and would become First State's responsibility as the purchaser of the property at the foreclosure sale. In advancing this argument, First State asserts that the effect of the circuit court's ruling was to elevate Metro POA's assessment above the bank's mortgage on the property in contravention of section 18–13–116(c). According to First State, subsection (d) contemplates only an ordinary course-of-business sale. To hold otherwise, First State argues, would be contrary to the well-established law that liens being foreclosed upon are extinguished by the judgment of foreclosure. In sum, First State argues that subsection (c) controls in those instances where there is a foreclosure sale, while subsection (d) governs regular course-of-business sales.
Metro POA argues to the contrary that the circuit court properly refused to extinguish its interest, as the purchaser of a foreclosed unit is liable for delinquent assessments by virtue of section 18–13–116(d), which provides no exception for foreclosure sales. Thus, according to Metro POA, the plain language of section 18–13–116(d) dictates that a purchaser of the property is statutorily liable for the unpaid assessments. Metro POA further argues that the obligation imposed under section 18–13–116(d) is of a personal nature and that a foreclosure does not extinguish a direct, personal liability.
The question of the correct application and interpretation of an Arkansas statute is a question of law, which this court decides de novo. McLemore v. Weiss, 2013 Ark. 161, 427 S.W.3d 56. We are not bound by the circuit court's decision; however, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct. Id. The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the drafting body. Richard v. Union Pac. R.R. Co., 2012 Ark. 129, 388 S.W.3d 422. In reviewing issues of statutory interpretation, we first construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. McLemore, 2013 Ark. 161, 427 S.W.3d 56. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rules of statutory construction. Id. It is axiomatic that this court strive to reconcile statutory provisions to make them consistent, harmonious, and sensible. Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179.
The Horizontal Property Act is codified at Arkansas Code Annotated sections 18–13–101 to –120 (Repl.2003), and provides for mandatory pro rata contributions from property owners within a horizontal property regime for “the expenses of administration and of maintenance and repair of the general common elements.” Seesection 18–13–116(a)(1).
Subsections (c) and (d) of section 18–13–116 are at issue in the instant case and provide as follows:
(c) Upon the sale or conveyance of an apartment, all unpaid assessments against a...
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