West Town Homeowners Ass'n, Inc. v. Schneider

• Decision Date: 16 December 1983
• Docket Number: No. 82-724,82-724
• Citation: 215 Neb. 905,341 N.W.2d 588
• Parties: WEST TOWN HOMEOWNERS ASSOCIATION, INC., a Nebraska corporation, Appellee, v. Michael D. SCHNEIDER, Appellant.
• Court: Nebraska Supreme Court

Page 588

341 N.W.2d 588

215 Neb. 905

WEST TOWN HOMEOWNERS ASSOCIATION, INC., a Nebraska corporation, Appellee, v. Michael D. SCHNEIDER, Appellant.

No. 82-724.

Supreme Court of Nebraska.

Dec. 16, 1983.

Syllabus by the Court

1. Res Judicata. Any right, fact, or matter in issue and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered cannot again be litigated between the parties and privies, whether the claim or demand, purpose, or subject matter of the two suits is the same or not.

2. Pleadings. Under Neb.Rev.Stat. § 25-852 (Reissue 1979), a pleading may be amended in the furtherance of justice to conform to the proof, if the proposed amendment does not change substantially the claim or defense. The decision to allow or deny the proposed amendment rests in the sound discretion of the trial court.

3. Judgments: Appeal and Error. A judgment on a fact issue tried to the court alone has the effect of a verdict of a jury and will not be set aside unless clearly wrong.

4. Attorney Fees. A litigant may not have an allowance of an attorney fee by the court unless it is authorized by statute or a uniform course of procedure.

David W. Jorgensen of Nye, Hervert, Jorgensen & Waton, P.C., Kearney, for appellant.

Patrick J. Nelson of Jacobsen, Orr & Nelson, Kearney, for appellee.

BOSLAUGH, WHITE, and GRANT, JJ., and NORTON, District Judge, and COLWELL, District Judge, Retired.

NORTON, District Judge.

West Town Homeowners Association, Inc., brought this action in the county court of Buffalo County, Nebraska, to recover assessments alleged due from the defendant, Michael D. Schneider, a member of the association. Trial was to the court, and plaintiff was granted judgment for $903.33, together with interest, costs, and an attorney fee of $800. Upon appeal to the District Court of Buffalo County, Nebraska, the judgment was affirmed. We affirm in part and reverse in part.

West Town Homeowners Association, Inc., is a nonprofit corporation located in Buffalo County, Nebraska, and incorporated under the provisions of Neb.Rev.Stat. §§ 76-801 through 76-824 (Reissue 1981), which is an act known as the Condominium Property Act. Michael D. Schneider is an owner of real property located within the area comprising the boundaries of the association. This is the third lawsuit between these parties, involving several of the same issues. No appeal was perfected from the judgment of the trial court in the first two cases.

At the conclusion of the evidence the plaintiff was permitted to amend its petition by interlineation to conform to certain evidence, and it appears that the amendments requested were in fact completed. These amendments had the effect of increasing the amount of the prayer from $263.33 to $937.35.

The defendant raises six assignments of error. In response thereto the plaintiff objects to the first three on the defense of res judicata. It appears from the record that this defense was raised in the trial court by proper pleading as required. See, Burke v. Munger, 138 Neb. 74, 292 N.W. 53 (1940); In re Estate of Schuette, 138 Neb. 568, 293 N.W. 421 (1940). The evidence offered in support of this defense consisted of complete transcripts of the two former trials, including the judgment of the trial court in each instance. The first three assignments of error were fully litigated in the previous trials and a decision rendered thereon by the trial court. This court has previously stated the rule applicable in the following language: "Any right, fact, or matter in issue and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered ... cannot again be litigated between the parties and privies, whether the claim or demand, purpose, or subject matter of the two suits is the same or not." (Syllabus of the court.) Brommer v. City of Hastings, 212 Neb. 367, 322 N.W.2d 787 (1982). The first three assignments of error are without merit and will not be discussed further in this opinion.

The remaining three assignments are: (1) Whether the trial court abused its discretion in permitting the plaintiff to amend its petition at the time of trial; (2) Whether or not the plaintiff complied with the requirements of the declaration in assessing and increasing the annual assessment; and (3) Whether or not there was an error in the assessment of attorney fees.

The right to amend pleadings is statutory in nature and well recognized in Nebraska. See Neb.Rev.Stat. § 25-852 (Reissue 1979). This right is limited to some degree by that statute, and the limitations have been subject to much litigation in the past. Recently, this court restated the rule applicable in this situation as follows "Under § 25-852, a pleading may be amended in the furtherance of justice, to conform to the proof, if the proposed amendment does not change substantially the claim or defense." Meyer v. Sandhills Beef, Inc., 211 Neb. 388, 396, 318 N.W.2d 863, 867 (1982). In Mahoney v. May, 207 Neb. 187, 189, 297 N.W.2d 157, 159 (1980), the court also stated: "The decision to allow or deny a proposed amendment to the pleadings rests in the sound discretion of the trial court."

The amendments of which the defendant complains relate directly to the amount of the annual assessment, which is charged against the account of each member at the rate of one-twelfth of the total each month. The amendments were requested principally because of the passage of time between the date of the filing of the petition and the trial date. The amount added to the original request of the prayer logically belongs in this action, and such addition does not substantially change the nature of the claim or the defense. We cannot say that the trial court abused its discretion in this instance, and therefore find no merit in this assignment of error.

The second assignment of error deals with the manner in which the annual assessment of the membership was fixed. Specifically, the defendant complains that the requirements of a certain document, known as a declaration, were not followed in changing the annual assessment from $35 for the preceding year to $960 effective September 1, 1981. To determine if the trial court erred in its judgment on this question, it is necessary to review the evidence offered and received at the time of trial. This includes the declaration, an instrument of record which is in fact a written statement of the rights, duties, and obligations that exist between the association and its members. Article IV, § 6, of this instrument provides in part: "The Board of Directors shall fix the amount of the annual assessment against each lot at least thirty (30) days in advance of each annual assessment period. Written notice of the annual assessment shall be sent to every...