Grenier v. Barclay Square Commercial Condo. Owners' Ass'n

• Decision Date: 10 October 2003
• Docket Number: No. 2002–457.,2002–457.
• Court: New Hampshire Supreme Court
• Parties: Mark GRENIER d/b/a Royalty Automotive Services, v. BARCLAY SQUARE COMMERCIAL CONDOMINIUM OWNERS' ASSOCIATION and another.

150 N.H. 111

834 A.2d 238

Mark GRENIER d/b/a Royalty Automotive Services,

v.BARCLAY SQUARE COMMERCIAL CONDOMINIUM OWNERS' ASSOCIATION and another.

No. 2002–457.

Supreme Court of New Hampshire.

Argued: June 11, 2003.

Opinion Issued: Oct. 10, 2003.

Robert E. Ducharme, of Stratham, by brief and orally, for the plaintiff.

Sanford Roberts, PA, of Portsmouth (Sanford Roberts on the brief and orally), for the defendants.

BRODERICK, J.

The defendants, Barclay Square Condominium Owners' Association and New Hampshire Real Estate Management and Brokerage, Incorporated, appeal an order of the Superior Court (Houran , J.) finding that they were not authorized to: (1) promulgate a rule to regulate the use of parking spaces; and (2) tow vehicles that are in violation of that rule. The defendants also argue that the court erred by failing to award them attorney's fees. The plaintiff, Mark Grenier d/b/a Royalty Automotive Services, cross-appeals, arguing that the trial court erred by failing to award him attorney's fees and costs, and by ordering him to pay storage costs associated with the towing of his vehicles. We affirm in part, reverse in part, vacate in part and remand.

The trial court found the following relevant facts. The plaintiff owns two units in the Barclay Square condominium complex (Barclay Square) located in Somersworth. Barclay Square is a twenty-four-unit business and commercial complex established in 1987 and is a registered condominium association. It is governed by a board of directors (board) and managed by defendant New Hampshire Real Estate Management and Brokerage, Inc. (New Hampshire Real Estate).

From his two units, the plaintiff operates Royalty Automotive Services, an automobile repair and sales business. In connection with his business, the plaintiff needs parking spaces for a number of vehicles, both during the day and overnight. The plaintiff regularly uses a portion of the common area to the rear of the units for parking.

At the annual meeting of the Barclay Square Condominium Association (association) in September 1998, the association adopted a temporary amendment requiring all business owners in Barclay Square wishing to use parking spaces in the rear of the units to request permission from the board. This amendment was effective until the next annual meeting in September 1999. At the September 1999 meeting, twenty-two unit owners voted sixteen to six to discontinue the temporary amendment. The association, however, voted twenty to two to direct the board to promulgate, within sixty days, "a new parking/general usage policy for the rear land" and to bring the proposal to a vote.

In 1999, the board developed a proposed ordinance (parking rule) regarding overnight parking in the rear common area. The owners of twenty-one of twenty-four units voted to approve the ordinance, which provides as follows:

Effective November 1, 1999 all unit owners and lessees wanting to use the rear common land to park registered and inspected (excluding dealer plates) motor vehicles or trailers overnight must first request permission in writing from the BSCCA Board of Directors. Under no circumstances shall the Board grant an individual business owner permission to park more than four (4) vehicles overnight at one time. Permission granted will be on a "space available" basis and will be for a specified area of land in the rear.... Non-compliance with the terms and conditions of said parking permission will be grounds for immediate revocation of this permission.

By letter dated December 14, 1999, the plaintiff requested permission to park "the maximum amount of vehicles allowed overnight" in the rear common area. On March 26, 2001, G. Brandt Atkins, president of New Hampshire Real Estate, wrote to the plaintiff, informing him that he had been and continued to be in violation of the parking rule and asking that he conform by 5:00 p.m. on April 3, 2001. Atkins included a copy of the parking rule with the letter and stated that "non-compliance will be grounds for the Board of Directors to immediately revoke the permission you requested in your December 14, 1999 letter to the Board."

Atkins notified all unit owners and tenants on April 5, 2001, that he intended to tow any vehicle in violation of the overnight parking rule that same evening. Atkins had received approval from the board to tow offending vehicles prior to issuing notices to unit owners and tenants. On the evening of April 5, 2001, Atkins discovered seven vehicles belonging to the plaintiff's business parked in the rear common area. He had three vehicles that were unregistered and/or uninspected towed.

The plaintiff did not pay the $300 necessary to recover his vehicles from the towing company and the vehicles were subsequently moved into storage at Superior Towing Company, Inc. By court order incorporating the parties' stipulation, two parties originally named in this case, Superior Towing Company, Inc. and Automation Towing/Recovery, were dismissed, the plaintiff paid $4,350 to Superior Towing Company, and Superior Towing was ordered to hold the vehicles without additional charge pending the court's decision on the merits. The court stated that "[t]he ultimate responsibility for the towing and storage charges of $4,350 will be determined by the court in its final decision."

Following a non-jury trial, the trial court found that the board did not have the authority to amend its rules to limit overnight parking in the rear common area to four vehicles per business owner. Further, it found that the board was not authorized to tow vehicles in violation of the parking rule because the rule itself limits the sanction available, at least as to the first violation, to revocation of parking permission. Moreover, the court found that the plaintiff did not receive sufficient notice of the association's intent to tow vehicles parked in violation of the parking rule.

The court stated, however, that the plaintiff was responsible for any storage costs in excess of $300 because he failed to reclaim his vehicles on April 6, 2001, and, therefore, did not mitigate his damages. The court also denied the plaintiff's request for attorney's fees and costs. The plaintiff filed a motion to reconsider, which was also denied. This appeal followed.

In their brief, the defendants concede that they did not have the authority to limit the available parking per business owner as found by the trial court. They argue alternatively, however, that they had the authority to tow offending vehicles from the property because the parking rule also prohibits keeping uninspected and/or unregistered vehicles overnight in the rear common land. We need not decide this issue because even if we assume that the defendants could penalize the plaintiff for parking unregistered and/or uninspected vehicles in the rear common area, they were not authorized to tow his vehicles. The parking rule, in pertinent part, provides that "[n]on-compliance with the terms and conditions of said parking permission will be grounds for immediate revocation of this permission." In finding that the defendants did not have the authority to implement the towing rule, the trial court stated that the penalty provision could reasonably be interpreted as limiting the sanction to be imposed in the event of a parking violation. We agree. While a condominium association may be permitted to promulgate reasonable rules to address day-to-day concerns, the rule cannot contravene or otherwise conflict with the express language of the condominium documents. Here, the parking rule provides expressly that the unit owner will lose permission to use parking spaces if he or she fails to comply with the parking rule. Moreover, at the time of the events in question, the condominium by-laws provided that the board shall have the power to levy fines, which were not to exceed $10 for one violation, against a unit owner for violations of the provisions of the declaration, by-laws or condominium rules. We conclude, therefore, that the defendants' implementation of the towing penalty was not authorized in light of these other penalty provisions.

The defendants next argue that the trial court erred by failing to award it attorney's fees pursuant to RSA 356–B:15, II (Supp.2002). "We will not overturn the trial court's decision concerning attorney's fees absent an [unsustainable exercise] of discretion." Business Publications v. Stephen, 140 N.H. 145, 147, 666 A.2d 932 (1995) (quotation omitted); see also State v. Lambert, 147 N.H. 295, 296, 787 A.2d 175 (2001) (explaining unsustainable exercise of discretion standard). In evaluating the trial court's ruling on this issue, we must first keep in mind the tremendous deference given to a trial court's decision on attorney's fees. Daigle v. City of Portsmouth, 137 N.H. 572, 574, 630 A.2d 776 (1993).

Our analysis begins with the statutory language itself; when that language is plain and unambiguous, we need not look beyond the statute for further indications of legislative intent. Johnson v. City of Laconia, 141 N.H. 379, 380, 684 A.2d 500 (1996). We ascribe to statutory words and phrases their usual and common meaning, unless the statute itself suggests otherwise. Id. Nevertheless, we do not assume that the legislature would enact statutory language that would lead to an absurd result. Atwood v. Owens, 142 N.H. 396, 398, 702 A.2d 333 (1997).

RSA 356–B:15 provides:

I. The declarant, every unit owner, and all those entitled to occupy a unit shall comply with all lawful provisions of this chapter and all provisions of the condominium instruments. Any lack of such compliance shall be grounds for an action or suit to recover sums due, for damages or injunctive relief, or for any other remedy available at law or in equity, maintainable by the unit owners' association, or by its board of directors or any managing agent on behalf of such association, or, in any proper case, by one or more aggrieved unit owners on their own

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