J. Mark Dunbar, Appellant,
Twin Towers Condominium Association, Inc., a Nebraska nonprofit corporation, et al., Appellees
Appeal and Error. To be considered by an
appellate court, an alleged error must be both specifically
assigned and specifically argued in the brief of the party
asserting the error.
Rules of the Supreme Court: Appeal and
Error. Neb. Ct. R. App. P. § 2-109(D)(4) (rev.
2014) requires that a cross-appeal be prepared in the same
manner and under the same rules as the brief of the
appellant. Thus, the cross-appeal section must set forth a
separate title page, a table of contents, a statement of the
case, assigned errors, propositions of law, and a statement
___. In order for affirmative relief to be obtained, a
cross-appeal must be properly designated in accordance with
Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2014).
Statutes: Appeal and Error. The meaning of a
statute is a question of law, and a reviewing court is
obligated to reach conclusions independent of the
determination made below.
Summary Judgment: Jurisdiction: Appeal and
Error. When reviewing cross-motions for summary
judgment, an appellate court acquires jurisdiction over both
motions and may determine the controversy that is the subject
of those motions; an appellate court may also specify the
issues as to which questions of fact remain and direct
further proceedings as the court deems necessary.
Statutes. To the extent that there is
conflict between two statutes on the same subject, the
specific statute controls over the general statute.
Statutes: Appeal and Error. Statutory
language is to be given its plain and ordinary meaning, and
an appellate court will not resort to interpretation to
ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
Neb.App. 355] 8. Statutes.
It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct
and plain out of a statute.
Actions: Moot Question. An action becomes
moot when the issues initially presented in the proceedings
no longer exist or the parties lack a legally cognizable
interest in the outcome of the action.
Moot Question: Words and Phrases. A moot
case is one which seeks to determine a question that no
longer rests upon existing facts or rights-i.e., a case in
which the issues presented are no longer alive.
Moot Question. Mootness refers to events
occurring after the filing of a suit which eradicate the
requisite personal interest in the resolution of the dispute
that existed at the beginning of the litigation.
Moot Question: Jurisdiction: Appeal and
Error. Although mootness does not prevent appellate
jurisdiction, it is a justiciability doctrine that can
prevent courts from exercising jurisdiction.
Declaratory Judgments: Moot Question. A
declaratory judgment action becomes moot when the issues
initially presented in the proceedings no longer exist or the
parties lack a legally cognizable interest in the outcome of
Summary Judgment. Summary judgment is proper
when the pleadings and evidence admitted at the hearing
disclose that there is no genuine dispute as to any material
fact or as to the ultimate inferences that may be drawn from
those facts and that the moving party is entitled to judgment
as a matter of law.
from the District Court for Douglas County: Shelly R.
Mark Dunbar, pro se.
P. Lee, of Lee Law Office, for appellee Twin Towers
Condominium Association, Inc.
Pirtle, Riedmann, and Bishop, Judges.
Dunbar, a condominium unit owner, brought an action against
Twin Towers Condominium Association, Inc. (Association); LRC
Management II LLC; and anonymous [26 Neb.App. 356] defendants
"Does 1-10." Dunbar was seeking relief related to
actions taken by the Association. The issues on appeal
involve only Dunbar and the Association. Summary judgment
motions and orders filed prior to trial disposed of some of
Dunbar's claims, but not all of them. Dunbar appeals and
the Association attempts to cross-appeal from the order
entered by the Douglas County District Court following trial.
Dunbar challenges the district court's conclusion that a
pet policy amendment to the Association's master deed was
valid. Dunbar also challenges the district court's
conclusion that the Association's adopted resolution
regarding an owner's access to records and its procedures
for making records available were consistent with nonprofit
corporation laws and condominium laws. The Association's
attempted cross-appeal is related to attorney fees. We affirm
in part and in part reverse the district court's decision
and remand the cause with directions.
"Twin Towers Condominium" was established by a
master deed recorded on December 30, 1983, and consists of
residential units, commercial units, and parking areas. The
master deed provides that the Association, a Nebraska
nonprofit corporation, was incorporated "to provide a
vehicle for the management of the condominium" and that
each "co-owner" of a condominium unit is
automatically deemed a member of the Association. Dunbar
purchased a residential unit in 2003 and is therefore a
member. According to the Association's bylaws, a board of
not fewer than three nor more than five administrators or
directors (elected by the members annually) manages the
affairs of the Association.
February 2010, Blackthorne Real Estate Property Development
Company, Inc. (Blackthorne), has provided property management
for the Association and is the Association's registered
agent. David Davis, Blackthorne's president, testified
that Blackthorne, as property manager for the Association,
"handle[s] the day-to-day operations of the
property," including [26 Neb.App. 357] maintenance,
collection of dues and special assessments, payment of vendor
bills, negotiation of contracts with vendors, and "the
day-to-day contact with unit owners and the Board."
Blackthorne is the custodian of the Association's
documents, and it prepares a budget and provides reports to
the Association regarding the Association's financial
affairs. Davis also attends board meetings, and his company,
Blackthorne, staffs an office located in the Twin Towers
Condominium. There is a computer in that office made
available to owners, where they can view financial documents,
the master deed, some correspondence, and minutes from
formerly a licensed architect in Texas and currently an
attorney still active with the California bar, testified at
trial that if the Association "should mismanage its
expenses or should overpay vendors, it is owners like [him]
who are forced to pay." Or if the Association decides to
invest "hundreds of thousands or millions of dollars on
capital improvements, the Association is able to assess
[Dunbar] and force [him] on a personal basis to pay those
expenses." Therefore, the right to examine documents is
the only way Dunbar can determine why he is incurring
"monthly dues assessments." He claims to have
suffered damages as a result of the Association's
mismanagement of its income, repairs, and capital
improvements. As examples, he described his share of
assessments he had to pay in 2011 ($3, 000 for a parking
garage renovation), 2013 ($1, 200 for "chiller
repair"), and 2014 ($5, 000 for elevator and roof
repairs). These assessments are in addition to "ordinary
monthly or annual expenses" paid by owners for services
such as property management, are in addition to utilities,
and are "extraordinary, largely unexpected,
unanticipated burdens on property owners such as
[Dunbar]." Dunbar initially opened up a dialogue with
his "fellow unit owners" through "telephone
conversations, meetings and ... a website [he] created"
to assemble documents for the owners to "figure out what
was happening to [the owners'] property investment."
He then "took the formal steps necessary to force an [26
Neb.App. 358] examination of the Association's records in
order that [he] might be more fully informed about the nature
of the income and expenses that the Association was handling
for [him] and [his] fellow owners.''
requested and received documents in March 2014. According to
an Association officer, "23 sets of various
documents" were sent to Dunbar at that time. Dunbar
proceeded to publish those documents on his personal website;
the officer claimed some of the documents included vendor
contracts which contained confidential information. A year
later, on March 10, 2015, Dunbar sent a letter to the
Association again requesting financial records. On April 14,
the Association's board passed a "Resolution on
Documents Provided on Request of an Owner" (resolution).
According to Davis, the resolution was drawn up because
Dunbar previously posted documents on his website. The
resolution stated the board "desires to adopt a uniform
policy and procedure to respond to such owner requests for
Association records and documents." The resolution also
stated, in part:
3: In responding to a request of an Owner for any financial
records or financial information the [Association] other than
the annual budget [sic], pursuant to Neb. Rev. Stat. section
21-19, 166 (c), may make a policy decision on providing such
documents to the requesting owner if: A: The [Association]
determines that the owner's demand is made in good faith
and for a proper purpose;
B: In the written request the owner describes with reasonable
particularity the purpose and the copies of the records the
member desires; and
[C]: The records are directly connected with such purpose as
described by the owner.
4: Any request made by an owner for documents shall be
referred to the . . . Board ... for review and action. The
Board may consider such request at its next . . . meeting. In
the event the Board determines to produce any or all of the
documents requested by the owner such [26 Neb.App. 359]
documents shall be provided to the owner within five (5) days
of the decision of the Board related to such document request
and the Board's determination required by Neb. Rev.
Stat[.] section 21-19, 166 (c).
after the adoption of the resolution, the board decided to
create a website for the owners, which is managed by
Blackthorne. Davis indicated that the board directed him to
place on that website all financial documents, board meeting
minutes, and other pertinent documents, such as the master
deed, bylaws, and amendments. Email communications and
announcements for elections and social events are posted on
the website as well. Any document marked with "PDF"
is a protected file that can be opened by an owner registered
on the board's Twin Towers Condominium website, but the
protected files cannot be copied. The financial records are
all marked as protected files.
Association sent a letter to Dunbar on April 20, 2015, which,
in relevant part, purported it would provide him with copies
of the documents he requested. Davis sent Dunbar six emails
attaching various documents on April 25, but according to
Dunbar, not a single document was responsive to Dunbar's
requests. On November 16, Dunbar sent another letter again
requesting various financial records. The Association sent a
letter on November 20 informing Dunbar that the board voted
to deny his request for documents. It explained that his
request was denied because Dunbar received documents in March
2014 and posted documents on his personal Twin Towers
Condominium website. The Association stated that this
violated confidentiality provisions on some of the documents
and exposed the Association "to potential claims of
financial liability for disclosure of confidential
proprietary information and breach of fiduciary duty."
The letter also stated:
[B]ased on Neb. Rev. Stat. section 21-19, 166(c)(1) and
21-19, 166(c)(3) the Board hereby denies your document