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Oak Hills Highlands Ass'n, Inc. v. Levasseur

Court of Appeals of Nebraska

April 1, 2014

OAK HILLS HIGHLANDS ASSOCIATION, INC., APPELLANT,
v.
SCOTT LEVASSEUR, PERSONAL REPRESENTATIVE OF THE ESTATE OF WILLIAM LEVASSEUR, SR., ET AL., APPELLEES

Appeal from the District Court for Douglas County: PETER C. BATAILLON, Judge.

Ben Thompson, of Thompson Law Office, P.C., L.L.O., for appellant.

Albert M. Engles and James C. Boesen, of Engles, Ketcham, Olson & Keith, P.C., for appellee Scott LeVasseur, as personal representative.

INBODY, Chief Judge, and MOORE and RIEDMANN, Judges.

OPINION

Page 591

[21 Neb.App. 890] Inbody, Chief Judge.

INTRODUCTION

Oak Hills Highlands Association, Inc. (the Association), appeals the order of the Douglas County District Court which entered summary judgment in favor of the appellees. In this case, the Association claims that its adoption of the Nebraska Condominium Act (NCA) allowed for the Association to assess certain special assessments against the owner of a condominium for expenses incurred as a result of a fire caused by the owner's misconduct. See Neb. Rev. Stat. § § 76-825 to 76-894 (Reissue 2009 & Supp. 2013). The district court determined that the Association's " Revised Declaration and Master Deed" (Revised Declaration) and bylaws did not expressly adopt the NCA and rejected the claims of the Association.

STATEMENT OF FACTS

The circumstances of this case stem from a fire which destroyed the condominium owned by William LeVasseur, Sr. LeVasseur owned the real estate referred to as " apartment #10" of the Oak Hills Highlands condominium property, regime 3, in Omaha, Nebraska, and he was a member of the Association. On October 11, 2009, a fire occurred at LeVasseur's condominium, allegedly beginning after LeVasseur fell asleep smoking a cigarette near his oxygen tank. The fire caused an estimated $243,683.43 in damages. The Association claims that as a result of the fire, their insurance premiums increased significantly. The Association claims that the fire was caused by LeVasseur's misconduct and that, as a result of the alleged misconduct, the increase in the Association's insurance premiums was solely due to LeVasseur. The Association imposed a special assessment against LeVasseur for the total amount of its increased premiums.

The Association's annual insurance premium increased from $39,120 to $65,325, which the Association alleges was an increase of $15,648 for a claim record related to the fire and a $10,557 increase as a result of a statewide increase for all condominiums. The Association alleges that the

Page 592

3-year premium increase totals $46,944, in addition to interest in [21 Neb.App. 891] the amount of $14,482.17 and attorney fees and other charges of $16,691.37, all of which the Association indicates that LeVasseur, who passed away in February 2010, and now his estate, refused to pay. The Association filed a notice of assessment with the Douglas County register of deeds, which placed a lien on the property.

On October 20, 2010, the Association filed a complaint in equity for a foreclosure of the assessment lien seeking a decree of foreclosure of liens imposed as a result of the Association's special assessments against LeVasseur totaling $37,945. The complaint alleges that LeVasseur is the record owner of real estate referred to as " apartment #10" of the Oak Hills Highlands condominium property, regime 3, and that the special assessments were imposed and not paid by LeVasseur, nor were they paid by his estate upon his passing. ...


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