2006-404, BUKK G. CARLETON v. EDGEWOOD HEIGHTS CONDOMINIUM OWNERS' ASSOCIATION

Decato Law Office

No. 2006-404

Merrimack

In June 2003, mold was discovered in the “attic spaces” above numerous single-family home style. The plaintiff owns fourteen of the garden-style units. in three different styles: “garden” or apartment style, townhouse style and Association, appeals an order of the Superior Court (McGuire Owners’ Association was formed in December 1986 and consists of 120 units HICKS, J. The defendant, Edgewood Heights Condominium Owners’ The trial court found the following: Edgewood Heights Condominium

McLane, Graf, Raulerson & Middleton, P.A.

remand. summary judgment in favor of the plaintiff, Bukk G. Carleton. We reverse and

defendant. Harris THE SUPREME COURT OF NEW HAMPSHIRE and Kristin M. Yasenka on the brief, and Mr. Harris orally), for the

for the plaintiff.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as plain meaning of the language used in the contract. p. 2 ambiguity, however, the parties’ intent will be determined from the

negotiated, and reading the document as a whole. Absent

circumstances and the context in which the agreement was judgment as a matter of law. Porter v. City of Manchester established the absence of a dispute over any material fact and the right to favorable to the non-moving party to determine whether the proponent has required to construe the pleadings, discovery and affidavits in the light most In acting upon a motion for summary judgment, the trial court is

by the parties its reasonable meaning, considering the

When interpreting a written agreement, we give the language used

declaration is a question of law, which we review de 2 “As is the case with any contract, the interpretation of a condominium’s appeal followed. illegally in assessing [the plaintiff] for remediation” of mold therein. This were not limited common areas and therefore ruled “that the Board acted remediation of mold in such spaces. The trial court found that the attic spaces owners, including the defendant, were properly subject to assessment for the maintained that such attic spaces are limited common areas and that all unit space the responsibility of the unit owners. The defendant, on the other hand, townhouse unit is part of the individual unit, making the costs of repair to that Owners’ Assoc. v. Ventullo On summary judgment, the plaintiff argued that the attic space above a, 151 N.H. 571, 575 (2004).

favorable to the non-moving party. Id. other evidence, and all inferences properly drawn from them, in the light most In reviewing the grant of summary judgment, we consider the affidavits and (2007). An issue of fact is material if it affects the outcome of the litigation. Id.

be decided on motions for summary judgment. respect to his claims and the parties agreed that the defendant’s claims would court where the plaintiff was granted a voluntary non-suit with prejudice with just the individual owners of affected units. The case was removed to superior when it decided that costs should be borne by the entire association and not judgment that its board of directors had properly interpreted the declaration counterclaimed to collect the assessment and also sought a declaratory the condominium declaration to levy the special assessment. The defendant and brought suit in district court challenging the defendant’s authority under remediation. The plaintiff refused to pay the special assessment on his units levying a special assessment on every unit in the association to pay for the area.” The defendant convened a properly-noticed meeting for the purpose of the space qualified under the condominium declaration as “limited common beyond what individual unit owners would normally be responsible for and that townhouse units. The defendant decided that the necessary repairs were definition of “ceiling” is “the overhead inside lining p. 3 but whether the attic spaces have a ceiling at all. The most relevant dictionary declaration. The issue is not whether a ceiling must be finished or unfinished, upper most ceiling.’” We disagree with the trial court’s reading of the definition contained in the Declaration of an ‘unfinished . . . interior of the “apparently concludes that a ‘ceiling’ must be finished which contradicts the The trial court rejected this same argument, stating that the defendant

portion of the unfinished attic space.” individually owned townhouse unit would have been below the lower most Therefore, the defendant argues, “the upper most finished ceiling of the “[t]he upper surface of the attic space is the underside of the roof itself.” submitted to the trial court, the attic space does not have a ceiling. Rather, particularly in this instance, ‘limited common area.’” According to an affidavit the space above the finished ceiling constituting ‘common area’ or, more ceiling of the townhouse unit as delimiting the individually owned unit, with defendant argues that “the Declaration makes specific reference to the finished surfaces in the Townhouse Unit are part of the Townhouse Unit.” The paint, finished flooring and any other materials constituting part of the finished Townhouse Unit, and all lath, wallboard, plaster, paneling, tiles, wallpaper, Article 2-301 further provides that “[a]ll doors and windows serving the

most ceiling. (b) The unfinished or undecorated interior surfaces of the upper

most basement floor. (a) The unfinished or undecorated interior surfaces of the lower

townhouse units as follows: Article 2-301 of the declaration defines the horizontal boundaries of the

framing that supports and/or comprises the roof, such as beams, rafters, etc. to mean that the overhead surface of the attic spaces consists of the exposed “[t]he upper surface of the attic space” as being “the underside of the roof itself” (unabridged ed. 2002) (emphasis added). We read the affidavit’s description of the floor above.” Webster’s Third New International Dictionary 358

part of a unit, they are common area. than the Units.” Declaration, Article 1-107. Thus, if the attic spaces are not defines common area to “mean[] all that portion of the Condominium, other area. Declaration, Article 1-107; RSA 356-B:3, XX (1995). The declaration Hampshire Condominium Act, limited common area is a subset of the common condominium. Under both the terms of the declaration and the New lies outside the perimeter of an individual unit, as defined in the declaration of The defendant contends that the attic space is common area because it

(2006) (quotation omitted). Ryan James Realty v. Villages at Chester Condo. Assoc., 153 N.H. 194, 197 p. 4 Reversed and remanded

benefit of an initial determination by the trial court. common area, it never reached this question. We decline to address it without Because the trial court found that the attic spaces were not limited

constituted maintenance or a repair.” whole.” Thus, the pertinent question is “whether [the mold remediation] owner, while the latter remains the responsibility of the Association as a that same space and imposes the burden of the former upon the adjacent unit ordinary maintenance and upkeep of limited common area versus the repair of The defendant asserts that “[t]he declaration draws a distinction between the unit to which the space is appurtenant or of all the unit owners collectively. whether the remediation of mold therein is the responsibility of the owner of space in a townhouse unit is limited common area, the next question is judgment in its favor. Specifically, once it has been determined that the attic affirmative response, to remand and instruct the trial court to enter summary The defendant asks us to answer a second question, and, presuming an

whom DUGGAN, J., joined, dissented. BRODERICK, C.J., and DALIANIS, J., concurred; GALWAY, J., with

The foundations, column girders, beams and supports, and roof

Description of Limited Common Area.

. . . .

trial court’s ruling to the same effect was erroneous. that “the underside of the roof qualifies as a ceiling.” We also conclude that the constitute a “ceiling” in a unit. Accordingly, we reject the plaintiff’s argument common area, they cannot also be part of a unit and therefore cannot (Emphasis added.) As the beams, supports and roof are defined to be limited 500 through 2-502 provide: are limited common area rather than part of the individual units. Articles 2- Other declaration provisions support the conclusion that the attic spaces

said buildings containing the Townhouse Units . . . .

they are appurtenant: exclusive use of the Owner or Owners of the Unit or Units to which some of the Units Limited Common Areas which are limited to the

individually owned townhouse unit. space must be the uppermost ceiling, and the upper boundary, of an drywall) that would comprise a ceiling. Accordingly, the ceiling below the attic Thus, there is no “inside lining” of finished or unfinished material (such as p. 5 Ryan James Realty v. Villages at Chester Condo. Assoc.

meaning of the language used in the contract.

parties’ intent will be determined from the plain

believe such an outcome is incorrect, as it improperly focuses on the material, surface does not include some material beyond the interior of the roof. I never constitute a ceiling, even if it was in a horizontal position, because the Applying the majority’s interpretation, the attic’s uppermost surface could determination is irrelevant under the majority’s interpretation of ceiling. ceiling would serve as the unit’s horizontal boundary. However, this whether the attic space in question is in fact horizontal, such that the attic’s 5 used by the majority, Webster’s boundary” of each townhouse unit. The record here does not demonstrate necessary to constitute a ceiling. Along with the “interior lining” definition Article 2-301 of the condominium declaration establishes the “horizontal such as drywall, to line the space. I do not believe such additional material is surface, the underside of the roof, and requires the use of some other material, document as a whole. Absent ambiguity, however, the conclusion, the majority discounts the attic’s existing uppermost interior which the agreement was negotiated, and reading the boundary because there is no “inside lining.” I disagree. In order to reach this considering the circumstances and the context in cannot constitute a ceiling for purposes of establishing a townhouse unit’s The majority concludes that the uppermost surface of the attic space

declaration is a question of law, which we review de novo “As is the case with any contract, the interpretation of a condominium’s

underside of the roof directly above the attic space would constitute a “ceiling.” unfinished surface to serve in this capacity. Therefore, I believe that the declaration’s definition of a unit’s boundary, which specifically allows an particular area. My interpretation is also supported by the condominium language used by the parties its reasonable meaning, majority does, but considers its position as the uppermost surface of a define ceiling solely in terms of what the surface is comprised of, as the International Dictionary 358 (unabridged ed. 2002). These definitions do not . . . . [and] an uppermost surface of a cavity or chamber.” Webster’s Third New

When interpreting a written agreement, we give the

(2006) (quotation omitted).

interpretation of the term “ceiling,” I respectfully dissent.

Owner’s Assoc. v. Ventullo, 151 N.H. 571, 575 (2004).

GALWAY, J.