Generally speaking, the complaint sets out three basic categories of allegations relating to assessments and fees, management and maintaining common elements.
In count one of the complaint, it is alleged that pursuant to executive board resolution, an assessment for common expenses of the association was levied upon all units at the rate of $1.01 per square foot at the time of the inception of the association. It is also alleged that Old County has only paid fifty cents per square foot at the time of the assessment for common expenses on units it owns that are not leased to third parties. Count one further alleges that, despite demand, Old County has failed and refused to pay the full assessment of the units.
In subsequent counts, a wide variety of allegations are made relating to alleged mismanagement by Old County including, in count eighteen, a claimed violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42a-110a et seq. The plaintiffs seek monetary damages and various orders as relief, as well as attorney's fees and punitive damages.
Trial was held on November 19, 20, 21 and 26. Witnesses included the plaintiffs and Mr. Gary Pierce (Pierce), who is owner of fifty percent of the defendant. Briefs and *Page 343 responsive briefs have been filed. Oral argument was held on March 24, 1997.
Having considered the full record and all of the arguments set forth, the court concludes that judgment should enter for the defendant on all counts except counts two and eighteen; judgment on those two counts should enter for the plaintiffs.1
Even if the plaintiffs prove an allegation, they are not entitled to relief unless damages can be proven. Damages must be established with reasonable certainty, and not be based on speculation or surmise. Johnson v. Flammia, 169 Conn. 491, 500, 363 A.2d 1048 (1975). A plaintiff must prove damages with as much certainty as is possible. Southern New England Contracting Co. v. State, 165 Conn. 644, 661, 345 A.2d 550 (1974). While mathematical exactitude is often impossible, the party claiming damages must nonetheless make a fair and sufficient estimate. Falco v. James Peter Associates, Inc., 165 Conn. 442, 445, 334 A.2d 475 (1973). It has been held that condominium unit owners could recover *Page 344 only nominal damages for another owners' breach of a condominium declaration absent evidence of decline in value of their units. Grey v. Coastal States Holding Co., 22 Conn. App. 497, 507, 578 A.2d 1080, cert. denied, 216 Conn. 817, 580 A.2d 57 (1990). At trial, the plaintiffs offered neither expert testimony nor other persuasive evidence indicating that there had been a decline in the value of their units as a consequence of the defendant's alleged actions.
Count one, in its essence, alleges that the defendant has been paying only fifty cents per square foot of the assessment for common expenses, not the rate — initially $1.01, but subsequently lowered — that other unit owners are charged. Conceding that there are no Connecticut cases on point, the plaintiffs cite numerous out-of-state cases which, they contend, stand for the proposition that the defendant lacked the right to charge itself a lesser charge for common expenses. See, e.g., Aluminium Industries Corp. v. Camelot Trails Condominium Corp. , 194 Wis.2d 575, 535 N.W.2d 74 (Wis.App. 1995); Mountain View Condominium Assn. v. Scott, 180 Ariz. 216, 883 P.2d 453 (Ariz.App. 1994); and other out-of-state cases cited by the plaintiffs, all of which have been reviewed. The plaintiffs assert that the evidence showed that Pierce testified that the defendant was paying only fifty percent of the assessment on units 98, 102 and 116, and that the defendant should have paid $153,591 more than it has paid from the period of July, 1989, to July, 1996. *Page 346
The defendant makes a number of arguments. Preliminarily, the defendant asserts that since from at least 1994, the plaintiffs knew that the common expenses rate for some units was different than for others. The defendant argues that the lesser assessment charged on some of the units was justified because the units were "unfinished" — having no ceilings, no interior walls, no finished plumbing or electricity and part concrete and part sand floors. As a consequence of their unfinished states, the defendant argues, the unfinished units are less expensive to insure, less expensive to maintain, create no trash that must be hauled away, use no water or electricity billed to the association and their exterior rear areas do not require snow removal with its attendant costs. Based on these factors, the defendant contends that the executive board felt justified in reducing the rate for unfinished units.
Having considered the full record, the court concludes that the defendant has the better argument and should prevail on count one for the following reasons.
First, as the parties agree, there is nothing in the declaration or in the bylaws which either expressly permits, or expressly prohibits, the defendant from charging itself a lesser rate for unfinished units.2 Neither is there any controlling Connecticut authority which prohibits it nor is the practice prohibited by any statute brought to the court's attention. The out-of-state cases relied upon, while relevant to the analysis, are not controlling and are, in varying degrees, distinguishable *Page 347 either on their facts (for example, Aluminum Industries concerns assessments on units not yet constructed) or because they relate to a specific statutory scheme in another state. The court agrees that an association in the nature of a fiduciary relationship existed between the defendant and the plaintiffs. See, e.g., Governors Grove CondominiumAssn. , Inc. v. Hill Development Corp. , 36 Conn. Sup. 144, 154-55,414 A.2d 1177 (1980); Thanasoulis v. Winston Towers 200 Assn. , Inc.,110 N.J. 650, 542 A.2d 900 (1988). A residential condominium owner who is dealing with a significantly more sophisticated condominium owner, however, is not at issue in the present case. No claim of unconscionability has been made here. The relationship between the plaintiffs and the defendant existed within the framework of an arms length commercial transaction between reasonably sophisticated parties. The legal contours of the relationship were defined by the declaration and by the bylaws, which the plaintiffs, businessmen, had in their possession before they closed. The plaintiffs must be presumed to have understood that, pursuant to those documents, the defendant, who has at all times had a controlling interest, could choose to assert its control over the budgetary process. This is what the defendant did. Fraud has not been alleged, and there is no evidence in the record that the defendant affirmatively acted to deceive or to mislead the plaintiffs on this issue. Compare, e.g., Governor's Grove Condominium Assn. , Inc. v. HillDevelopment Corp. , supra, 151-54. More over, the defendant had a fundamentally reasonable basis to assess the unfinished units at a lesser rate than other units. The record does not support the conclusion that the decision to charge a lesser rate for unfinished units was either pretextual or fundamentally unreasonable. In the final analysis, the defendant was exercising the prerogatives which its controlling interest permitted *Page 348 under the declaration and bylaws, implicitly, if not explicitly.3
In summary, the court concludes that, in the absence of any statutory or caselaw authority prohibiting what the defendant did, in the absence of anything in the bylaws or a declaration preventing it, in light of the arms length, commercial nature of the transaction between the parties, in the absence of any evidence of deceit, and in light of the fundamentally reasonable basis for the defendant to assess unfinished units at a lesser rate, the defendant must prevail on count one. Consequently, judgment may enter for the defendant on count one.4
With respect to allegation (a), the evidence indicated that executive board meetings were not, in fact, held until March, 1995. The evidence also indicated that the business of the association was conducted informally; required formalities were clearly not observed. With respect to allegation (b), the evidence supports the plaintiffs' claims that annual unit owners meetings were not held until 1994, as the defendant concedes.
Turning to allegation (c), the evidence indicates that formal budget meetings were not held. As the defendant notes, however, the defendant corporation has never held less than fifty percent of the votes of the association, and, therefore, no budget endorsed by the defendant could have been rejected.
With respect to allegation (d), the evidence indicated that the plaintiffs did not request budget information from the defendant, and indicated further that, when requested, the defendant offered to open the financial records to audit or investigation.
As to allegation (e), the evidence supports the plaintiffs' claims. *Page 350
Consequently, the plaintiffs have prevailed on count two.
There is no evidence in the record, however, that these breaches harmed or financially damaged the defendant in any discernable way, other than by violating the cited provisions of the declaration and bylaws and thereby depriving them of information and input to which they were entitled. The plaintiffs offered no evidence upon which the court could base an award of more than nominal damages. See Grey v. Coastal StatesHolding Co., supra, 22 Conn. App. 507. Consequently, nominal damages of one dollar are awarded to each plaintiff on this count. Judgment shall enter for the plaintiffs on this count.
The evidence on this point is somewhat ambiguous. The defendant argues that Pierce testified that some initial documents mistakenly indicated a higher management fee than what was agreed to, but that this error was corrected. The defendant asserts that Pierce testified that, in fact, no increase in the agreed upon management fee was obtained, and that his testimony on this point is uncontroverted.
The court agrees with the defendant's argument that, notwithstanding the apparent confusion, Pierce's testimony that no increase was, in fact, received stands uncontroverted. *Page 351
Consequently, judgment may enter for the defendant on this count.
The plaintiff has failed to provide these allegations.
Moreover, paragraph five of the interim management contract provides that "[t]his contract may be terminated by either party on sixty (60) days written notice to the other party."
Judgment on count four may enter for the defendant.
The evidence showed that there had been some problems with leaky roofs. There was no evidence, however, that annoying as this was, it has interfered in any significant way with the plaintiffs' ability to go about their business activities, as alleged. Moreover, the evidence showed that Pierce and Mr. Gene Simmons (Simmons) have taken reasonable, if not fully successful, efforts to remedy whatever problems existed.
Consequently, judgment on this count shall enter for the defendant. *Page 352
The plaintiffs' evidence that a company in which Simmons is involved handled the snowplowing is insufficient to carry its burden of proof. So was the other evidence produced by the plaintiffs.
Judgment shall enter for the defendant on count six.
The evidence indicated that the plaintiffs knew that this area was only partially paved when they purchased their units; that the final layer of paving had not been applied because a unit's rear entrance could be finished either as a drive-in or a loading dock; and that, because the units were not sold, the proper alternative could not be agreed upon. The evidence also indicated that, appearances aside, the area is useable.
While the plaintiffs' displeasure is understandable, under the circumstances, the court concludes that the defendant's stated desire to complete the paving within a "reasonable" time was too vague, and subject to too many contingencies, to support the plaintiffs' claims in count seven. *Page 353
The court concurs with the arguments made by the defendant as to this count.
Preliminarily, it should be noted that the declaration, which the plaintiffs submitted as one of their exhibits, states in section 18.1(e) that expenses are defined to include [e]xpenses for Old County Circle, a private road. . . ." As the defendant notes, schedule A-5 of this same exhibit estimates that the association's share of the annual operating expenses of Old County Circle would be $5715. The evidence indicated that the amount actually charged was $4100. As the defendant also notes, each of the plaintiffs testified that they had received a copy of the declaration in advance of their closings. The plaintiffs, therefore, were on notice that Old County Road was a private way and that they would share a portion of its maintenance costs as a common expense.
The evidence also showed that in 1996, a purchase of adjacent land owned by the defendant occurred, and that the town accepted the road.
In light of the above, judgment shall enter for the defendant on count thirteen.
Judgment on this count shall enter for the aforementioned plaintiffs. The defendant is ordered to pay them one dollar each in nominal damages, and also to pay interest from the date the monies were collected, said amount to be agreed upon by counsel.
The court is in agreement with these decisions. More over, the plaintiffs have failed to prove an ascertainable loss of money or property, as required by General Statutes § 42-110g. See Rizzo PoolCo. v. Del Grosso, 232 Conn. 666, 684-85, 657 A.2d 1087 (1995). Consequently, judgment may enter for the defendant on count eighteen.