dissenting.
I must respectfully dissent from the majority opinion because the Court of Appeals properly affirmed the decision of the circuit court based solely on the doctrine of laches in the delay of the Association in bringing the action so as to significantly prejudice the opposing party. Laches is a failure to do something which should have been done or to enforce a right at a proper time.
The Association has abandoned its original argument to the Court of Appeals in regard to laches and now seems to claim that the doctrine does not apply at all because the action includes a legal claim for a money judgment as well as equitable foreclosure under the terms of KRS 381.883.
As the Court of Appeals stated, the legality of the discount provision is highly questionable, and it may not comply with the statutes governing condominium-property regimes. Certainly some sympathy can be engendered for the Association, and the underlying issue, that is the legality of Wellington’s scheme, may merit criticism. However, this kind of horizontal property case, as a condominium dispute between owners, is governed by contract law. It must be assumed that all parties to the original agreement were competent and consenting. The claim of manifest injustice is unconvincing. In addition, this case has problems with preservation as well as delay.
The responsibility of this Court is to review the decisions of the other courts, not to discover new facts. Consequently, on balance, I cannot say that the Court of Appeals committed reversible error in deciding the ease on the basis of laches or that the circuit court was clearly erroneous in its evaluation of the facts and application of the law.