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Dunbar v. Twin Towers Condominium Association, Inc.

Court of Appeals of Nebraska

September 25, 2018

J. Mark Dunbar, Appellant,
v.
Twin Towers Condominium Association, Inc., a Nebraska nonprofit corporation, et al., Appellees

         1. 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.

         2. 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 of facts.

         3. ___: ___. 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).

         4. 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.

         5. 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.

         6. Statutes. To the extent that there is conflict between two statutes on the same subject, the specific statute controls over the general statute.

         7. 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.

         [26 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.

         9. 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.

         10. 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.

         11. 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.

         12. 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.

         13. 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 the action.

         14. 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.

          Appeal from the District Court for Douglas County: Shelly R. Stratman, Judge.

          J. Mark Dunbar, pro se.

          Dennis P. Lee, of Lee Law Office, for appellee Twin Towers Condominium Association, Inc.

          Pirtle, Riedmann, and Bishop, Judges.

          BISHOP, JUDGE.

         I. INTRODUCTION

         J. Mark 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.

         II. BACKGROUND

         The "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.

         Since 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 meetings.

         Dunbar, 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.''

         Dunbar 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).

         Also, 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.

         The 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 ...

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