Pugh v. University Gardens Condominium Homeowners Association

Opinion

*stw t"tbarv TanttorBa$

I IN THE SUPBRIOR COURT OF'GUAM 2 lS Fii i, ? JOE and MELODIA PUGH. ) 3 ) SMALL CLAIMS CASE NOS. SDO7O5-03. ) and SD0835-03. 4 Plaintiffs, ) ) 5 vs. ) ) FINDINGS OF FACT AND 6 ) CONCLUSIONS OF LAW ) 7 TINIVERSITY GARDENS CONDOMINruM) HOMEOWNERS AS SOCIATION. 8

9 Defendant.

11 INTRODUCTION t2 This matter came before the Honorable Arthur R. Barcinas on the 7th day of August, 2003, 13 for hearing on the merits of Plaintiffs' claims in cases SD705-03 and SD835-03 that they were T4 improperly cited, fined, and barred from using common area facilities at the University Gardens 15 Condominiums in violation of the University Gardens House Rules (hereinafter House Rules) I6 adopted bythe Defendant under the Horizontal PropertyRegime (hereinafter HPR), and that the t7 Defendant University Gardens Condominium Homeowners Association (hereinafter UGCHA) 18 improperly disconnected and removed an air conditioning unit from the Plaintiffs' condominium t9 roof pursuant to the House Rules adopted under the HPR. The Plaintiffs' claims of improper 20 termination of emplo5ment in 5D2647-02 and 5D922-03 were previously dismissed by the 2l Court. In the remaining two cases, the Plaintiffs appeared pro se, and Attorney James M. Maher 22 represented the Defendant. The Court now issues the following Findings of Fact and Conclusions 23 of Law on the matters. 24 FINDINGS OF FACT 25 After hearing all the evidence and testimony presented in this case, this Court finds by a 26 preponderance of the evidence, that: Pughs vs. University Gardens Condominium Homeowners' Association; SD0705-03 and SD0835-03 FINDINGS OF FACT AND CONCLUSIONS OF LAW

I 1. The Plaintiffs, Joe and Melodia Pugh, purchased a condominium unit. Unit #8210 2 in the University Gardens Condominiums in 1996. a J 2. The Plaintiffs appeared in SD0705-03 by filing a small claims complaint form on 4 April 15, 2003. The Defendants appeared through their attorney in court on 5 August 7,2003, where they denied the claims set forth in SD0705-03, and 6 subsequently submitted a Later, the Plaintiffs appeared in SD0g35-03 by filing a 7 small claims complaint form on April 28, 2003. The Defendants also appeared in 8 this case through their attorney on AugustT ,2003,and again denied the claims set 9 forth. l0 J. Rule 8(f) of the Guam Rules of Civil Procedure requires that "all pleadings shall 11 be so construed as to do substantial justice." Therefore, from a plain reading of l2 the statements attached to the small claims complaint forms in SD0705-03 and 13 SD0835-03, there appear to be requests for relief, including: t4 l5 A) that the Plaintiffs be awarded ten thousand dollars ($ 10,000.00) for

t6 the UGCHA's breach of the HPR by fining them and revoking

r7 their parking privileges in SD0705-03; and

18 B) that the Plaintiffs be awarded two thousand dollars ($2,000.00) for

I9 the UGCHA's removal and disconnection of an air conditioning

20 unit in SD0835-03.

2l 4. The Defendant, UGCHA does not appear to have set forth any counterclaims or

22 requests for relief.

23 5. InJuly2002,typhoonChata'anirreparablydamaged anairconditionerunitwhich

24 was located on the roof of UnitB270, and the Plaintiffs subsequently purchased

25 and installed a new air conditioning unit in the same location as the former air

26 conditioner unit had occupied.

Page2 of 9 Pughs vs. University Gardens Condominium Homeowners' Association; SD0705-03 and SD0835-03 FINDINGS OF FACT AND CONCLUSIONS OF LAW

I 6. In October and November of 2002, the UGCHA began sending notices to the 2 Plaintiffs to remove the newly installed air conditioning unit. a J L The Plaintiffs did not remove the air conditioning unit. 4 8. In November and December of 2002, the UGCHA began assessing fines against 5 the Plaintiffs for their failure to remove the air conditioning unit from the roof of 6 Unit B210, and subsequently disallowed the Plaintiffs from using colnmon area 1 facilities, most notably, the parking stall assigned to the Plaintiffs. 8 9. Specifically, the UGCHA assessed fines against the Plaintiffs and revoked their 9 common area privileges pursuant to House Rule #17. The UGCHA only assessed 10 these punitive measures under House Rule #17, and did not cite violations of any 11 other House Rule in assessing these penalties against the Plaintiffs. t2 13 10. The Plaintiffs presented no evidence that they ever paid any of the fines assessed

against them bythe UGCHA. T4

15 1 1- In February of 2003, the UGCHA removed the air conditioning unit from the roof

of the Plaintiffs' condominium unit. T6

T7 CONCLUSIONS OF LAW

t9 The Plaintiffs have instituted a cause of action in SD0835-03 because they claim that the 20 UGCHA improperly removed an air conditioning unit from the roof of their condominium. 2l House Rule #54 of the applicable House Rules states: 22

23 All of the condominium's common and limited common elements (including but not limited to the exterior surfaces of the buildings, doors, passageways, and 24 grounds) shall be used and decorated only as permitted by the Board. No qlterations, installations, repairs or changes of any nature shall be effected to the 25 exterior surfaces of the complex without prior written approval of the Board. 26

Page 3 of 9 Pughs vs. University Gardens Condorniniurn Horneowners' Association; SD0705-03 and SD0g35-03 FINDINGS OF FACT AND CONCLUSIONS OF LAW

I Amended University Gardens House Rules, February 1994,#54 (emphasis added). 2 The Plaintiffs admit that they installed a new air conditioning unit on the roof of theirunit .t J in2002, without prior written approval of the Board. The Court finds that under the provisions 4

5 of the House Rules, specifically, #54,the Board acted within the power granted to it by the HpR

6 and the House Rules by removing the air conditioning unit.

7 The Plaintiffs have argued that the air conditioning unit they installed on the roof of their

8 condominium unit in 2002 should have been pennissible under the "Grandfather Clause Law.', 9 A "grandfather clause" is a "fp]rovision in a new law or regulation . . allowfing] all those 10 akeady doing something to continue doing it even if they would be stopped by the new l1 I2 restriction." BLACK's LewDIcrtoNARY, 699 (6'h ed. 1991). There is no applicable,.grandfather

13 clause" in this case. Neither the HPR nor the House Rules provide a grandfather clause provision

t4 for previous non-conforming uses. In fact, the House Rules contain an "anti-grandfather clause,',

15 which specifically disallows any previous non-conforming fixtures or uses which pre-dated the t6 House Rules. Specifically, the House Rules state: "any deviations previously tolerated or t7 dispensations allowed by past Boards must be corrected within a reasonable amount of time.,, l8 t9 House Rules, p.1, fl6. Even if a grandfather clause provision had been adopted, the Court finds

20 that application of a grandfather clause would not have allowed the Plaintiffs to install a new air

2l conditioning unit on the roof of their condorninium after the old one was damaged beyond repair, 22 because "grandfather clauses" generally do not allow 100% replacement of non-conforming 23 fixtures. Cityof Foleyv. Mcl-eod,709 So.2d 471,4374 (Sup. Ct. Ala. 1998)(to allow full 24 replacement of a non-conforming fixture would defeat the purpose of regulations designed to 25

26 eliminate non-conforming uses and achieve uniformity); see also Clear Channel Outdoor v. City

Page 4 of 9 Pughs vs. University Gardens Condominium Homeowners' Association; SD0705-03 and SD0835-03 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 of Myrtle Beach,642 S.E.2d 545,568 (Sup. Ct. S.C. 2007); and Marris v. City of Cedarburg, 498 2 N.W.zd 842,850 (Sup. Ct. Wis. 1993). a J The Court finds that the UGCHA possessed the inherent authority to remove the air 4

5 conditioning unit which was installed without Board approval under House Rule #55, and also

6 has the general authority to fine and penalize the Plaintiffs for infractions of the House Rules

under the preliminary statement contained in the House Rules. House Rulgg, p.1, flfl3-5. 8 However, in SD0705-03, the Court finds that the UGCHA incorrectly used this power when it 9 repeatedly fined and penalized the Plaintiffs for having an air conditioning unit on the roof of their 10 condominium in violation of House Rule #17. House Rule #17 states: "[n]o radio aerial or 1l I2 connection shall be installed outside any unit or on the roof. Twenty-four hours after the first

l3 warning the aerial will be removed at charge to the owner."

l4 The Court finds that the Plaintiffs did not install a radio aerial or radio connection on the 15 roof of their condominium unit. Accordingly, the Plaintiffs did not violate House Rule #17, and t6 there is no basis for the UGCHA's imposition of fines and penalties upon the Plaintiffs pursuant t7 to this rule. The Court finds that the UGCHA improperly imposed fines and penalties on the 18

T9 Plaintiffs under the incorrect House Rule, and therefore, the UGCHA violated the authority

20 granted to it under the HPR and the House Rules and the fines and charges imposed on the

2T Plaintiffs pursuant to House Rule #17 are void. 22 B. Damages. 23 Under Guam law, "damages" is the amount of money that will compensate a person for 24 an injury or "detriment" sustained to a legal right. 20GCA $$210 I-2. (2005). These two terms 25

26 are distinct, as a party may suffer a detriment to a legal right, but may not suffer any appreciable

Page 5 of 9 Pughs vs. University Gardens Condominium Homeowners' Association; SD0705-03 and SD0g35-03 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 damages, andvice versa. In general, a pafiy must suffer an actual and measurable loss before the 2 party may recover damages, even if alegal right has been violated. Riofrio Anda v. Ralston a J Purina. Co. ,959 F.2d 7149, L152-3 (1't Cir. Ig92.). 4

5 This general rule has been codified in Guam, particularlypertaining to actions for breach

6 of contract, as 20 GCA $ 2202, which states, "[n]o damages can be recovered for a breach of

7 contract which are not clearly ascertainable in both their nature and origin.,' 20 GCA fi 2202 8 (2008). 9 The Plaintiffs present two requests for damages. In SD0705-03 the plaintiffs have 10 requested an award of ten thousand dollars ($ 10,000.00) "in charges and mental anguish', for the 11

t2 UGCHA's breach of the HPR, which reserves a parking stall for the use of the homeowner or

l3 tenant of each unit at the University Gardens Condominiums. In SD0835-03 the plaintiffs are

t4 requesting an award of two thousand dollars ($2,000.00) based on the UGCHA's removal and 15 disconnection of an air conditioning unit. Of this total sum, the Plaintiffs claim that four hundred I6 and fifty dollars ($450.00) was the projected cost of re-installation of the air conditioning unit, t7 and one thousand five hundred and fifty dollars ($ 1,550.00) should be awarded for daily mental l8 t9 anguish.

20 In a breach of contract action, damages for mental suffering or emotional distress are

2l generally not recoverable, Stafford v. Puro, 63 F.3d 1436, 1443 (7'h Cir. 1995); Standley v. 22 Chilhowee R-[V School Dist., 5 F.3d 319,32418'h Cir. 1993),unless they are specifically allowed 23 in the contract, or the contract involves highly sensitive personal matters, and emotional distress 24 is a specially foreseeable consequence of its breach. Ruiz de Molina v. Merritt & Furman Ins. 25

26 Agency. Inc.,207 F.3d 1351, 1359-60 (1i,h Cir. 2000).

Page 6 of 9 Pughs vs. University Gardens Condominium Homeowners' Association; SD0705-03 and SD0835-03 FINDINGS OF FACTAND CONCLUSIONS OF LAW

1 All of the Plaintiffs' causes of action allege breaches of the HPR and the House Rules 2 adopted under the HPR, the agreement of the homeowners' association for the University Gardens a 7 Condominiums. All of the causes of action alleged are breaches of the Plaintiffs' contractual 4 rights under the provisions of these agreements, and no other types of claims are asserted by the 5

6 Plaintiffs. Accordingly, all of the Plaintiffs' claims are actions for breach of contract.

7 Plaintiffs do not assert that the House Rules or the HPR involve highly sensitive personal 8 matters, nor that severe emotional disturbance was an obvious or foreseeable result of a breach 9 of either the House Rules or the HPR. Neither the House Rules nor the HPR set forth damages 10 for emotional distress as a remedy for breach of any of the provisions. Therefore, damages for 11

12 emotional distress or mental anguish are not available to the Plaintiffs in either cause of action

13 in SD0705-03 or SD0835-03.

T4 Consequently, only actual and calculated monetary damages may be recovered by the 15 Plaintiffs under 20 GCA 5 2202. As the Court has previously found that the Plaintiffs did not T6 have the right to install an air conditioner on the roof of their condominium unit without prior I7 written approval of the Board, pursuant to House Rule #54, no damages may be awarded in 18

t9 SD0835-03. However, even if the Court had found in the Plaintiffs' favor in that case, as to that

20 issue, the Plaintiffs failed to prove any acfual cost or monetary loss suffered as a result of the

21 removal of the air conditioner. The Plaintiffs merely speculated as to future costs and possible 22 fees which had not yet been charged to them, nor paid by them. Consequently, the Court could 23 not f,rnd that any loss had been suffered by the plaintiffs in SD0835-03. 24 Because the Plaintiffs requested damages only for emotional distress in SD0705-03, the 25

26 Plaintiffs also failed to present admissible evidence as to any monetary damages actually incurred

Page 7 of 9 Pughs vs. University Gardens Condorlinium Homeowners' Association; SD0705-03 and SDO835-03 FINDINGS OF FACTAND CONCLUSIONS OF LAW

I as a result of the UGCHA's improper revocation of the use of a parking stall under 20 GCA $ 2 2202, such as the cost of rental of a parking stall, or fines paid by the Plaintiffs for parking either a J on the street or inside the UGCHA lot. Accordingly, no compensatory damages maybe awarded, 4

5 despite the Courl's finding that the UGCHA improperly revoked the Plaintiff s usags of the

6 parking stall.

7 The Plaintiffs have failed their burden ofproof as to actual damages incurred in SD0705-

8 03, and thus, the Courl may only award nominal damages to the Plaintiffs in recognition of the 9 invasion of the Plaintiffs' rights, rather than a compensable award of injury suffered. In re Lower 10 Lake Erie Iron Ore Antitrust Litigation,998F.2d 7144,1184 (3'd Cft.1993), cert. dismissed,5I0 11

t2 U.S. 1021 (1993),andcert. dismissed,5l0U.S. 1032(1993);seealsoPowellv. Ward,643F.2d,

l3 924,934 (2d Cir. 1981); Taquino v. Teledlme Monarch Rubber, 893 F.2d 1488, 1490-1 (5'h Cir.

t4 1990); and Calhoun v. DeTella, 319 F.3d 936,9411(7'h Cir. 2003). Nominal damages are a 15 minimal sum, Magnett v. Pelletier, 488 F.2d 33,35 (1" Cir. 1973), and are usually awarded in the I6 amount of one dollar ($1.00) as an acknowledgment of a wrong suffered. Romano v. U-Haul l7 Intern., 233 F.3d 655, 671-2 (l't Cir. 2000). 18

t9 After hearing arguments and considering all of the filings and evidence presented, the

20 Court finds that the UGCHA properly removed the air conditioning unit installed by the Plaintiffs

2l on the roof of their unit in SD0835-03, however, the UGCHA improperly cited and disciplined 22 the Plaintiffs byrevoking their parking privileges under the incorrect House Rule in SD0705-03. 23 Based upon the foregoing, any fines or penalties imposed upon the Plaintiffs are hereby VOID, 24 and all common area privileges shall be REINSTATED, and the Plaintiffs are AWARDED 25

26 nominal damages of one dollar ($ 1.00) in SD705-03 for the Defendant's improper revocation of

Page 8 of 9 Pughs vs. University Gardens Condorrinium Homeowners' Associationl SD0705-03 and SD0835-03 FINDINGS OF FACTAND CONCLUSIONS OF LAW

1 the Plaintiffs' use of the parking stall assigned to the Plaintiffs. All findings of fact may be 2 interpreted as conclusions of law andvice versa. The parties shall bear their own respective fees 3 and costs. 4

6 SO ADJUDGED, thiS

9 HONORABLE ARTHUR R. BARCINAS Referee, Small Claims Court of Guam 10

l1 I2 13

l4 15

I6 I7 18

I9 20

2l 22

Page 9 of 9