RIVERSIDE PARK CONDOMINIUMS UNIT v. Lucas

• Decision Date: 25 January 2005
• Docket Number: No. 20040014.,20040014.
• Citation: 691 N.W.2d 862,2005 ND 26
• Parties: RIVERSIDE PARK CONDOMINIUMS UNIT OWNERS ASSOCIATION, a North Dakota Nonprofit Corporation, Plaintiff, Appellee and Cross-Appellant v. A. William LUCAS, Defendant, Appellant and Cross-Appellee.
• Court: North Dakota Supreme Court

691 N.W.2d 862

2005 ND 26

RIVERSIDE PARK CONDOMINIUMS UNIT OWNERS ASSOCIATION, a North Dakota Nonprofit Corporation, Plaintiff, Appellee and Cross-Appellant v. A. William LUCAS, Defendant, Appellant and Cross-Appellee.

No. 20040014.

Supreme Court of North Dakota.

January 25, 2005.

Monte L. Rogneby, Vogel Law Firm, Bismarck, N.D., for plaintiff, appellee and cross-appellant.

A. William Lucas, Bismarck, N.D. pro se.

VANDE WALLE, Chief Justice.

[¶ 1] A. William Lucas appealed a district court judgment entered November 10, 2003, and memorandum opinions and orders dated July 15, 2002; October 29, 2002; January 21, 2003; April 28, 2003; July 29, 2003; September 10, 2003; and October 6, 2003, in an action by Riverside Park Condominiums Unit Owners Association ("Association") to enforce a pet restriction. The Association cross-appealed from a judgment provision denying its motion for attorney fees. We affirm.

I

[¶ 2] On September 27, 1977, the owners of certain real property filed with the Burleigh County Register of Deeds a declaration of covenants and restrictions stating they had filed a Declaration of Project declaring the property was "to be developed as a condominium project pursuant to Chapter 47-04.1," N.D.C.C., and stating they had incorporated the Association to administer the properties and enforce the covenants and restrictions. The declaration further provided:

I.

The covenants and restrictions contained herein shall be enforceable equitable servitudes, and shall inure to and bind all owners of units in the project....

III.

Each unit owner shall comply strictly with said bylaws and with the administrative rules and regulations adopted pursuant thereto, as either of the same may be lawfully amended from time to time, and with the covenants, conditions, and restrictions set forth herein.

....

XV.

The covenants herein shall and are to run with the land, and shall be binding upon all of the parties and all persons claiming under them.

XVI.

No animals, livestock or poultry of any kind, except domestic pets, shall be raised, bred, or kept by any unit owner or unit resident. All domestic pets must be kept under control at all times by the unit owner or unit resident.

In 1990, the declaration of covenants and restrictions was amended by two-thirds of the unit owners and filed with the Burleigh County Register of Deeds. The amended declaration changed Paragraph XVI to provide:

No animals, livestock, poultry of any kind, or domestic pets, shall be raised, bred, or kept by any unit owner or unit resident, except that any domestic pet residing with a unit owner or unit resident on the date of the execution of this Amendment shall be excluded from this prohibition and be permitted to reside with said unit owner or unit resident.

Lucas bought a unit within the project in 1999.

[¶ 3] The Association sued Lucas, alleging, among other things, that "[o]n a regular basis, Lucas has kept and raised a dog at his unit," Lucas has "stated he could have a dog because he has `high blood pressure,'" and has said "he was not requesting an accommodation under the Fair Housing Act," but "will claim the need for an accommodation under the Fair Housing Act in the event a court holds valid the restrictive covenant prohibiting pet ownership." The Association sought an injunction prohibiting Lucas from keeping a pet in violation of the restrictive covenant or from maintaining a nuisance, a declaratory judgment that Lucas waived his rights under the Fair Housing Act or its provisions do not require the Association to accommodate Lucas' dog, damages, costs, disbursements and attorney fees.

[¶ 4] Lucas answered, denying that "[o]n a regular basis, Lucas has kept and raised a dog at his unit," asserted "that the Plaintiff Association did not follow proper procedures in attempting to amend the original Declaration of Covenants and Restrictions and therefore the attempted amendment to the Restrictive Covenants is invalid and not enforceable," admitted "he was not requesting an accommodation under the Fair Housing Act" but "will claim the need for an accommodation under the Fair Housing Act in the event a court holds valid the restrictive covenant prohibiting pet ownership," and asserted

13. Lucas is permitted to have an assistive (therapeutic) animal (dog) pursuant to the Federal Fair Housing Act (42 U.S.C. § 3601-3619) and other applicable Federal laws.

14. That this Court has no jurisdiction to make any determination under the Federal Fair Housing Act and the Federal Fair Housing Act supercedes all related North Dakota law.

15. Plaintiff's "pet restriction" is unreasonable, arbitrary, capricious, and discriminatory.

16. Plaintiff's selective application and enforcement of the "pet restriction" is unreasonable, arbitrary, capricious, and discriminatory.

17. Plaintiff's selective interpretation of the "pet restriction" and particularly the word "kept" is unreasonable, arbitrary, capricious, and discriminatory.

Lucas also presented counterclaims, asserting, among other things, the following factual allegations underlying his counterclaims:

29. Lucas is the owner of a condominium unit described as 112 Riverside Park Road immediately adjacent to the condominium unit owned by Board Member Thomas Prischmann. Lucas has not kept or maintained a dog at his unit, and is not in violation of any of the restrictive covenants of the condominium association.

30. The primary, permanent, and only residence where Lucas' former wife's dog Sugar is kept is at 1032 Highland Place, Bismarck, North Dakota.

31. The dog in question, named Sugar, is a West Highland White Terrier lap dog approximately ten inches high and weight probably ten to fifteen pounds at most.

32. Lucas' former wife's dog Sugar visits Lucas at irregular, infrequent times, probably approximately 24 days a year, with no scheduled times per month. The average visit would probably be two days per month; however, there are many months where there is no visit whatsoever.

33. Sugar is not a nuisance to a reasonable person. Sugar seldom and very infrequently barks.

34. Lucas is one of the very few condominium owners that is not violating any rules or restrictions of our condominium association.

Lucas presented twelve counterclaims: (1) for a declaration that the pet restriction is invalid; (2) alleging tree removal as a nuisance; (3) alleging a restriction prohibiting renting or leasing a unit is unreasonable; (4) for injunctive relief to compel compliance with restrictions about operating a business in a unit, trucks, boats, campers, dogs and cats; (5) alleging sidewalk drainage problems and negligence in not repairing the sidewalk; (6) alleging lack of authority to pay legal fees; (7) alleging interference with Lucas' right to quiet enjoyment of his condominium; (8) alleging the Association breached its fiduciary duty to him by suing him; (9) alleging misconduct of the Board of Directors with regard to the pet restriction and in suing Lucas, in installing different garage doors than Lucas had suggested, and in causing a reduction in the values of the units; (10) alleging emotional distress caused by the actions of an Association agent; (11) alleging abuse of process; and (12) alleging malicious prosecution.

[¶ 5] In a memorandum opinion and order issued July 15, 2002, the trial court dismissed counterclaims 2, 3, 5, 6, 7, 10 and 12 without prejudice. On October 29, 2002, the trial court issued an order granting, in part, the Association's motion to compel answers to interrogatories, production of documents and sanctions. On January 21, 2003, the court issued an order denying the Association's motion to strike paragraphs 13 and 14 of Lucas' answer, denying Lucas' motion for a default judgment, and sanctioning Lucas in the amount of $500 for failure to answer interrogatories and produce documents. In a memorandum opinion issued on April 28, 2003, the court granted the Association's motion for partial summary judgment, determining the pet restriction was properly adopted and Lucas was violating it. The court also affirmed an earlier order for a $500 sanction against Lucas for failure to comply with discovery and imposed a $1,000 sanction against Lucas for the Association's attorney fees in responding to Lucas' frivolous motion for default judgment. In a memorandum opinion issued on July 29, 2003, the trial court granted the Association's motion for summary judgment dismissing Lucas' five remaining counterclaims. On September 10, 2003, the court ruled on Lucas' objections to a proposed order for summary judgment, denied oral argument on the objections, denied a motion for stay of execution pending appeal, and set a hearing on other motions. On October 6, 2003, the court issued an order granting the Association's motion to dismiss its claims for nuisance and breach of fiduciary duty without prejudice, denied Lucas' motion for a stay pending appeal, and denied Lucas' motions for reconsideration, amendment, relief and alteration.

[¶ 6] On November 10, 2003, a judgment was entered that, among other things, (1) enjoined Lucas from violating the pet restriction, specifically prohibiting him "from having or keeping a dog in or at his unit or upon the common areas;" (2) granted the Association's motion for summary judgment for declaratory relief, declaring "Lucas does not have a valid claim for an accommodation under the Federal Fair Housing Act; or if he had a valid claim, the claim was voluntarily waived by his failure to make a valid request to the Association for an accommodation;" (3) granted the Association's motion to strike Lucas's amended answer and counterclaims; (4) dismissed all of Lucas's counterclaims with prejudice; (5) ordered Lucas to pay $500 as a sanction for his improper amended answer and counterclaims "in addition to the $1500 in sanctions already paid by Lucas to the Association based on prior orders of this Court;" (6) denied the Association's "motion for attorney...