March 2006
In This Issue:
Unit Owner May Not Interfere With Remediation Efforts
Leasing of Renovated Garage/Apartment Does Not Violate Declaration
Connecticut's Community Association Managers Act Does Not Provide for a Private Cause of Action
Association Members Must Approve Construction of Additional Dock and Relocation of Swimming Area
Purchaser at Tax Sale Is Liable for Payment of Assessments
Arizona Law Prohibits Distributing Assessments Directly to Association Members
Association Is Entitled to Attorney Fees
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Unit Owner May Not Interfere With Remediation Efforts
Cathedral Hill Tower Condominium Association v. Garbar, No. A107354, Cal. App. Ct., October 14, 2005

Construction Defects: In an unpublished decision, a California appeals court ruled that a condominium unit owner may not interfere with the association's remediation of construction defects when the hardship sustained by the owner is greatly outweighed by the interests of the association and the owners as a whole.


The Cathedral Hill Tower condominium suffered water damage from construction defects in unit balconies. To remedy the situation, the Cathedral Hill Tower Condominium Association ("association") elected to undertake a waterproofing project that included the removal of tile and other materials from many balconies. Ninety percent of the condominium owners voted in favor of this remedy.
 
One unit owner, Larisa Garbar, however, denied access to her unit's balcony and would not permit the removal of tile that she had installed in violation of the condominium's governing documents. All efforts to mediate the dispute between Garbar and the association failed. The manufacturer of the waterproofing membrane used in the waterproofing project refused to provide a warranty if any tiles were placed on top of its product. Despite this knowledge, Garbar refused to comply.
 
The association sued Garbar, asking the court to prohibit her from interfering with its waterproofing project. Garbar argued that her balcony did not leak and did not pose a danger of falling concrete. She further asserted that her balcony was not part of the condominium's common area, and, as such, the association did not have the right to pursue the waterproofing project as planned. She also argued that the association did not consider other alternatives that were less costly. The court enjoined Garbar from interfering with the waterproofing work, including placing tile or materials over waterproofed surfaces. She appealed.
     
By the time the issue was up for appeal, the waterproofing work to the condominium was completed.  Therefore, the court evaluated only whether Garbar could be stopped from placing tile over the waterproofed surface. Garbar had already suffered the loss of her tile, and the manufacturer and contractor would not provide warranties if the waterproofing surface was compromised by having materials placed over it. Therefore, the court held that maintaining the status quo was a "relatively insignificant hardship" to Garbar.
 
The court agreed with Garbar that her balcony was likely not part of the common area. The covenants state "any balcony included within any individual unit shall not constitute a part of the [c]ommon [a]rea but shall constitute a part of the unit served thereby or within which it is included." The association argued that even if the balcony was not part of the common area, the association had the right to enter any privately owned area for maintenance or repair for the benefit of the common area. The court determined, however, that the covenants were unclear as to whether that provision authorized the association to waterproof in any manner it chose.
 
Despite the arguments Garbar presented, the court determined that it must "interrelate the balance of hardships" with the association's likelihood of success on the merits. Noting that "the former factor outweighed the latter," the court ruled in favor of the status quo, which prevented Garbar from interfering with the waterproofing project on her balcony.

©2006 Community Associations Institute. All rights reserved. Reproduction and redistribution by CAI members or nonmembers are strictly prohibited.

Leasing of Renovated Garage/Apartment Does Not Violate Declaration
Dohmen-Ramirez v. Freis, No. 25473, Haw. App. Ct., October 14, 2005
Covenants Enforcement: A lot owner did not violate a subdivision's restrictive covenants by renovating a garage/apartment for his own use and renting the main residence to non-family tenants.


Bert Dohmen-Ramirez and Jay Freis own adjoining lots in the Maunalua Beach Subdivision on Oahu. The previous owners of Freis' lot were Ward and Beatrice Brown. In 1950, the Browns sought permission from Kamehameha Schools, which owned the fee interest in the lot at the time, to tear down an old garage and replace it with a new garage/apartment as a home for Mrs. Brown's parents.  Kamehameha Schools allowed the construction and agreed to this use of the structure. 
     
In 1960, after Mrs. Brown's parents died, the Browns began renting the garage/apartment to non-family tenants. The Browns continued this practice until 1989, when they sold their interest in the property to Freis. In 1988, a lease-to-fee conversion from Kamehameha Schools to individual lessees of Maunalua Beach was negotiated. A declaration of protective provisions was filed with the state Bureau of Conveyances, binding those who purchased fee interests in their properties. The declaration contained enforcement and waiver provisions pertaining to the covenants. 
     
Article II, Restrictions, of the declaration states:

All residential lots shall be occupied and used only for residential purposes, and only one single-family dwelling (exclusive of outbuildings) shall be erected, placed, maintained, or allowed on a residential lot. No building or structure on a residential lot shall be used as a tenement house, rooming house, or apartment house, or for or in connection with the carrying on of any business or trade whatsoever. No building shall exceed two stories in height. 

The declaration also provides that Kamehameha Schools, owners, and the lessees of the declarant or owners under valid and existing leases that have a term of five years or longer have the right to enforce the covenants imposed by the declaration by any proceeding at law or in equity. Failure to enforce one provision of the declaration does not constitute a waiver of the right to enforce any other provision with respect to the same owner or lessee. The declaration states that its restrictions run with the residential lots and are binding on all parties having an interest in those lots.
     
After purchasing his lot in 1989, Freis renovated it to enlarge the garage/apartment. Dohmen-Ramirez objected to the renovation and what he considered to be Freis' multiple-tenant rental plan for the property. Freis lived in the upstairs portion of the garage/apartment, but was out of the state much of the time. He rented the main dwelling to various tenants. During one period, he rented the downstairs portion of the garage/apartment to an unrelated person at the request of the president of the homeowner association. While most of the time there were three people living on the property, there were never more than five residing there at one time. 
     
Dohmen-Ramirez sued Freis in 1991 to have the garage/apartment torn down and to prohibit him from renting his property. In 1995, the court ruled that the garage/apartment could remain but Freis could not live on the property when he rented other parts of it to non-family tenants. Freis appealed. 
     
In 1998, the appeals court vacated the order and remanded the case for further proceedings. The court, believing that summary judgment was prematurely granted by the trial court, remanded the case because it decided that issues of material fact existed regarding Freis' defenses. At a trial held in 2000 and 2001, the judge ruled in Freis' favor, and Freis filed a motion for attorney's fees and costs. His motion was granted, and Dohmen-Ramirez appealed.
     
Dohmen-Ramirez asserted that the trial court erred by disregarding previous rulings and conducting the trial de novo, arguing that the prior appeal was limited to consideration of matters the trial court failed to address. Relying on the fact that trial courts must strictly comply with appeals court mandates and interpret each in light of the entire opinion, giving effect to the letter and intent of the mandate, after a fair reading of the appeals court decision, the court concluded that the mandate did not limit the trial court's authority. The court also noted that Dohmen-Ramirez, at the time of remand, did not move for summary judgment nor did he offer evidence in support of his previous motion. 
     
In this appeal, Dohmen-Ramirez challenged the court's reasoning that Freis was not in violation of the declaration. The court noted it was not disputed that the improvements to Freis' lot were made before he purchased it from the Browns. Dohmen-Ramirez conceded that the garage/apartment built by the Browns and the use to which they put it, including renting, were permitted under the declaration. Thus, the questions became whether Freis' renovation of the garage/apartment substantially changed its nature and whether his use of the property after its renovation exceeded the scope of the Browns' prior use. 
     
The court determined that the renovations did not alter the structure from one that would accommodate one, but not two, households. The court also determined that Freis' use of the property after the garage/apartment renovation did not materially exceed the scope of the Browns' prior use. Other than during one period mentioned above, Freis had not rented any portion of the garage/apartment to others.  Therefore, the court concluded that the trial court did not err in finding that Freis was not in violation of the declaration's building and use restrictions. 
     
Dohmen-Ramirez also challenged the award of attorney's fees to Freis. The appeals court agreed that the award was in error, though for different reasons than those put forward by Dohmen-Ramirez. Citing Hawaii case law, the court noted that an award of attorney's fees must be based on "statute, agreement, stipulation, or precedent."
     
The trial court did not specify the basis for its award of attorney's fees; however, as Freis did not allege misconduct in his motion or supporting memorandum, the court found none. The court presumed the award was based on a Hawaii statute that provides that, in actions in the nature of assumpsit and promissory notes or other contracts in writing, the losing party shall be taxed an amount of attorney's fees that the court determines is reasonable. Dohmen-Ramirez argued for an award of attorney's fees because he alleged Freis had violated the declaration's building and use restrictions. 
     
Assumpsit is a common-law form of action for the recovery of damages for nonperformance of a contract. Thus, the court determined that the action was not in the nature of an assumpsit, and Freis could not avail himself of the authority contained in the statute to defend an award of attorney's fees. 
     
The declaration provides that its covenants can be legally enforced against any person violating them and that any judgment for such violation may require all costs and expenses of such enforcement action, including reasonable attorney's fees, be paid by the person whom the court finds in violation of the covenant. The court concluded that Dohmen-Ramirez was not in violation of the declaration, and the plain language of the declaration did not authorize the levy of fees against him. It therefore upheld the trial court's findings but reversed the award of attorney's fees to Freis.

©2006 Community Associations Institute. All rights reserved. Reproduction and redistribution by CAI members or nonmembers are strictly prohibited.

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Connecticut's Community Association Managers Act Does Not Provide for a Private Cause of Action
CCMS LLC v. Hills Condominium Association Inc., No. CV030408122, Conn. Super. Ct., July 11, 2005
State and Local Legislation and Regulations: Connecticut's Community Association Managers Act does not provide for a private cause of action by a management/landscaping company against a condominium association.


CCMS LLC("CCMS"), a management, landscaping, and snow-removal company, sued the homeowner association of the Hills of Monroe Condominium Complex ("association"), seeking payment of owed sums and under the theory of quantum meruit for landscaping services. The association filed a counterclaim for negligent performance of snow removal and for violations under Connecticut's Community Association Managers Act ("Act"). CCMS moved to strike the counterclaim, claiming the Act did not provide for a private cause of action. The trial court agreed and granted the motion.
 
In granting the motion, the court ruled that the absence of a private right of action in the Act, and the regulatory scheme adopted in conjunction with the Act, is the foundation for determining that a private cause of action does not exist. The association's claim failed because it did not meet the three-part test set forth in Napoletano v. CIGNA Healthcare Inc., 238 Conn. 216, 680 A.2d 127 (1996), to determine whether a statute provides a private cause of action. Under Napoletano, a private cause of action exists if: (1) the plaintiff is one for whose benefit the statute was enacted; (2) the intent to create a remedy in the statute is demonstrated by the legislature; and (3) the private cause of action is consistent with the legislation's underlying purpose. In the court's view, the association's claim failed to meet the third prong of the test. The Act was intended to serve as a defense for consumers if a management agency did not comply, and Napoletano concerned access to information, not a consumer contract. Without the private right, the association's claim was stricken.

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Association Members Must Approve Construction of Additional Dock and Relocation of Swimming Area
Farrington's Owners' Association v. Conway Lake Resorts Inc., 878 A.2d 504 (Me. 2005)
Covenants Enforcement: A Maine appeals court vacated an order that granted the owners of a parcel of lakefront property the right to construct multiple docks and boat slips and relocated the communal swimming area.


Farrington on Kezar Lake is a condominium development in Lovell, Maine, created in 1990 by Mountain High Development Corporation. The corporation created the development through a condominium declaration that was amended several times, most recently in November 1990. The declaration describes rights and restraints on the property and includes an attachment (Schedule A-1) that describes rights Farrington's Owners' Association ("association") has to 500 feet of lake frontage. Conway Lake Resorts Inc., Pleasant Point Realty Trust, and Pleasant Pointe Inn Inc. (collectively, "lodge owner") is the successor in title to the beachfront property described in Schedule A-1.
 
The declaration provides that the beach, consisting of a strip of land 20 feet wide along the edge of the lakeshore, is common area for the use of the condominium unit owners, but the ownership, control, supervision, maintenance, and upkeep of the beach area is the responsibility of the lodge owner, which is to establish regulations to control the use and enjoyment of the beach for all parties entitled to its use. These regulations may be changed if at least five condominium unit owners ratify the changes. The declaration further provides that the lodge owner has the exclusive right to attach a dock with boat slips to the shore for its use and control as well as for the use of condominium unit owners.   
 
From 1992 to 2002, one dock with boat slips was maintained along the lakefront property. The association maintained a swimming area adjacent to the dock. In 2002, the lodge owner decided to replace the dock, which had 24 boat slips, with two docks that had a total of 32 slips. The new docks were installed in 2003. The lodge owner then moved the swimming area to a location away from the docks that the association considered inferior to its previous location.
 
The association sued the lodge owner, seeking a declaratory judgment that the lodge owner had violated the declaration by constructing the second dock and relocating the swimming pool. The association argued that the declaration unambiguously barred the construction of more than one dock unless five association members approved the change. In a motion for summary judgment, the lodge owner contended that the declaration, taken as a whole, unambiguously allowed for construction and operation of more than one dock.
 
Relying on its interpretation of Article 17C of the declaration, which states, "The use of the singular number in this declaration shall be deemed to include the plural, the plural the singular, and the use of any one gender shall be deemed applicable to all gender," the court determined that the declaration's reference to "a dock with boat slips" could also include "docks with boat slips." Although several other disputes between the parties remained unsolved, the court ruled in favor of the lodge owner and denied the association's motion. The association appealed.
 
The appeals court reviewed the declaration of rights in the condominium development as a contract among the parties. As a matter of law, language of a contract is considered to be ambiguous if it is reasonably susceptible to different interpretations. However, the court avoided interpreting the declaration in such a way that would render any other provision meaningless. The association argued that if multiple docks were allowed, the reservation in Schedule A-1 for the unit owners' right to use the beach area would potentially be threatened. The lodge owner argued that Article 17C's rule applies to A-1, making singular and plural references interchangeable.
 
The court found both arguments to be reasonable; however, it determined that the singular article "a" used in reference to the docks in Schedule A-1 is not the singular "number" referred to in Article 17C. After applying the basic rules of contract construction, the court found that the provision in Schedule A-1 governing the lodge owner's right to attach docks to the lakeshore property remained reasonably susceptible to two interpretations and was, therefore, ambiguous. The court vacated the trial court's decision.
 
The association argued that if the declaration is ambiguous, the undisputed material facts established that parties to the declaration intended that only one dock be constructed on the lakefront property. The lodge owner, however, asserted that there was more than one dock attached to the shore from 1990 to 2002, and the lodge owner offered testimony from parties to the original declaration that they did not intend to limit the lodge owner to one dock. The court found this evidence amply established, again, that there were two reasonable competing versions of the truth and disputed issues of material fact remained. 
 
The court found the trial court's determination that approval from association members applied only to changes in swimming-area regulations and not to the second dock was unpersuasive. The relevant language in Schedule A-1 provides:

The owner of the main lodge lot shall establish regulations controlling the use and enjoyment of the beach for all parties entitled to use the same, including designating areas of use for boating, bathing, sunbathing, and picnicking, provided regulations shall be posted on or near the beach area, and may be changed from time to time, so long as ratified by owners of at least five of the condominium units.

It was the court's opinion that the language plainly indicated that establishing regulations includes designation of areas for boating and swimming and that the sentence could only be logically interpreted to require the lodge owner to post regulations at the beach, which (posted or not) may only be changed with the approval of five association members. The court found that the trial court's reading of the language would allow the lodge owner to avoid the ratification requirement simply by neglecting to post the regulations.
 
In conclusion, the appeals court found that a question of fact remained about whether the lodge owner designated or acquiesced in the designation of boating and swimming areas each season. If that fact were established, the lodge owner had moved the areas without obtaining the required approvals, thus breaching the provisions of the declaration. The court vacated the trial court's judgment in favor of the lodge owner and remanded the case for further proceedings consistent with its opinion.

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Purchaser at Tax Sale Is Liable for Payment of Assessments
Croft v. Fairfield Plantation Property Owners Association Inc., 276 Ga. App. 311, 623 S.E. 2d 531 (2005)
Assessments: A purchaser at a tax sale is liable after the sale for payment of homeowners assessments even though the purchaser may not have fee-simple title to the property.


In June and July 2000, William Croft purchased at tax sales seven residential lots in the Fairfield Plantation subdivision, which is subject to covenants, conditions, and restrictions enforced by Fairfield Plantation Property Owners Association Inc. ("association"). Assessments are due from each owner of a lot in the subdivision to cover maintenance costs of the subdivision's common area.
 
Croft claimed he was not required to pay assessments on the seven lots he owned because his ownership rights were not within the purview of the covenants. The covenants provide:

every person upon acquiring title, legal or equitable, to any lot in the [s]ubdivision shall become a member of the [association].... Such membership is not intended to apply to those persons who hold an interest in any lot merely as security for the performance of an obligation to pay money, e.g., mortgages, deeds of trust, or real-estate contract purchases. However, if such a person should realize upon his security and become the real owner of a lot, he will then be subject to all the requirements and limitations imposed in these restrictions…including those provisions with respect to payment of annual charges.

Because Croft refused to pay any assessments, the association eventually filed liens against his properties. Croft sued the association for $1 million in damages for extortion and asked the court to remove the liens. The association counterclaimed for the unpaid assessments, late charges, interest, and attorney's fees. The trial court granted summary judgment to the association on Croft's claims and also granted summary judgment to the association for its claims for past-due assessments, late fees, interest, and attorney's fees. Croft appealed the decision.
 
On appeal, Croft asserted that his title to the properties was insufficient to result in membership in the association and the corresponding duty to pay assessments. Croft based this assertion on the statutory right of redemption available to predecessors in tax sales. Because any such predecessor may, within 12 months after the tax sale, restore title by paying the statutory redemption amount, Croft did not have fee-simple absolute title to the properties. Although the court agreed that Croft has a defeasible-fee rather than a fee-simple interest, it determined that Croft's ownership rights were sufficient to trigger membership in the association and the obligation to pay assessments.
 
In Patterson v. Florida Realty & Finance Corporation, 212 Ga. 440, 93 S.E.2d 571 (1956), the Georgia Supreme Court ruled a purchaser at a tax sale was liable for taxes accruing on the property after such purchase. In this case, the court ruled that an interest acquired at a tax sale was also sufficient to render the purchaser liable for assessments. Otherwise, a purchaser could keep the redemption period alive indefinitely and circumvent the assessment obligation altogether. The court stated:

It would be inequitable to allow a tax-deed holder to obtain the benefit of restrictive covenants that require the homeowner association to maintain the surrounding amenities such as roads and common areas, all of which increase the value of the property purchased at the sale, without having to pay a proportional share of the cost of these benefits for an indefinite period of time.

©2006 Community Associations Institute. All rights reserved. Reproduction and redistribution by CAI members or nonmembers are strictly prohibited. 

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Arizona Law Prohibits Distributing Assessments Directly to Association Members
Haines v. Goldfield Property Owner's Association, 118 P.3d 1134 (Ariz. App. 2005)
Assessments: Under Arizona law, distribution of association funds is impermissible unless the funds are held in trust by the association for its members.


Randolph Haines and Kathleen Kenney-Haines owned property in Goldfield Ranch, a subdivision. Fountain Foothills Limited Partnership ("Fountain Foothills") owns approximately 45 percent of the acreage in Goldfield Ranch. The original developer of the subdivision created a declaration of conditions forming Goldfield Ranch Property Owner's Association ("association"), an Arizona nonprofit corporation. The declaration also provides that all property owners in Goldfield Ranch are members of the association, and requires the association to maintain the subdivision's roads.

The association subsequently assumed responsibility for installation and maintenance of the electrical facilities. In 1984, the association levied an assessment of $100 per acre to pay for the electrical-distribution system. Most of the lots in Goldfield Ranch had electrical facilities installed under this system. However, the association did not install electrical facilities on lots owned by Fountain Foothills because the type of electrical lines was incompatible with Fountain Foothills' development plan. The association's board of directors passed a resolution agreeing to pay Fountain Foothills the estimated cost of installing the electrical facilities, with Fountain Foothills releasing the association from the obligation to provide the electrical system.
 
The Haineses sued the association and Fountain Foothills claiming that Arizona law prohibits the resolution, making it illegal and void. In upholding the association's actions, the trial court found that the association's motive for the special assessment was to provide electrical extensions in the subdivision.  The goal was attained, and the over-assessed members were returned the balance of the over-assessment.
     
On appeal, the court reviewed whether the association's distribution of the excess violated Arizona statutes providing that a nonprofit corporation shall not make any distributions. A.R.S. § 10-3104(22) states that, as a corporation, the association cannot make a direct or indirect transfer of money or other property to or for the benefit of its members. The Haineses and the association disputed whether the association's payments were impermissible corporate distributions or permissible refunds of property held in trust by the association for its members. The court described the essential elements of a trust as including a competent settler (an individual creating the trust), a trustee (the individual holding the property), a clear and unequivocal intent to create a trust, an ascertainable trust res (the property), and sufficiently identifiable beneficiaries (the third party that will benefit from the trust). Arizona case law provides that beneficiaries need not be aware of the trust, and no technical expressions are required to create an express trust.
     
The court found evidence supporting the existence of a trust. The assessment was to be used specifically for the installation of electrical facilities. The board deposited the funds in a separate account and instructed the bank that access was to be limited to uses associated with the installation of electrical facilities. The association informed members that the funds were held in a trust-fund account to be used for the funding of electrical extensions only. The association deposited the funds in an account at Bank One Trust Company-Corporate Trust Services.
     
The court also found evidence that cast doubt on the existence of a trust. Minutes from a 1984 board of directors meeting referred to the funds but made no mention of a trust. Instruction to Valley National Bank, where the funds were deposited in 1985, did not refer to a trust, but to an "agency account" established in the association's name.
 
The court determined that if a trust existed, the association was free to return the over-assessment it was holding for its members; however, if no trust existed the association, as a nonprofit corporation, could not make a distribution to members because Arizona law forbids it. Due to the conflicting evidence, the court looked to Golleher v. Horton, 148 Ariz. 537, 715 P.2d 1225 (1985), regarding whether the transfer of bare legal title, when considered in light of the conduct of the parties, demonstrates a clear intent to create a trust, whether this was a question for the trier of fact, and whether the issue was appropriate for submission to a jury. 
 
The court noted the association's articles of incorporation could shed light on the association's authority to distribute excess assessment, but because that issue was not raised at trial, it was waived on appeal. Both parties petitioned the court for attorney's fees. The court looked to an Arizona statute that provides that attorney's fees are appropriate where a party made a claim without substantial justification. A claim without substantial justification is one that constitutes harassment, is groundless, and is not made in good faith. Because of the question of fact in this case, the court found that an award of attorney's fees was not appropriate.

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Association Is Entitled to Attorney Fees
Dine v. Pine Mountain Club Property Owners Association Inc., No. B170988, Ca. App. Ct., July 27, 2005
Attorney Fees: In an unpublished opinion, a California appeals court affirmed that a community association was entitled to attorney fees incurred in defending its declaration of covenants.


Kenneth Dine owned property in Kern County, California, governed by the Declaration of Covenants, Conditions, and Restrictions for Pine Mountain Club. Pine Mountain Club Property Owners Association Inc. ("association") foreclosed on Dine's property for failure to pay an assessment in the amount of $338. He sued the association and Best Alliance Lien and Foreclosure Services, contending that the declaration had been invalidly extended and that the association's powers had expired. Best Alliance was dropped as a defendant before trial. 
 
On Jan. 29, 2003, the trial court ruled in favor of the association. On July 9, 2003, the association submitted a motion and supporting documentation to the court seeking $42,482.96 in attorney's fees. The court awarded a reduced amount of $30,000. Dine moved for reconsideration and was denied. An amended judgment filed on Sept. 17, 2003, appended the award of attorney's fees to the Jan. 29 ruling. Dine appealed the amended judgment in its entirety, and the court granted a motion from the association to strike all portions of Dine's argument that were not related to the attorney's fees. The appeals court limited its review to attorney's fees.
 
Dine argued that there was no statutory authority for the award of attorney's fees, that the association's motion was untimely filed, and that the amount of the award was excessive. Dine contended that, because the declaration was invalid, there was no statutory authority for the award. Because the trial court found the declaration was valid, the appeals court also assumed its validity. The association relied upon Section 1354 of the Davis-Stirling Common Interest Development Act ("Act"), which provides that the prevailing party must be awarded reasonable attorney's fees and costs in suits to enforce the governing documents of a common-interest development. The California Rules of Court provide that a motion for attorney's fees must be filed 180 days after a judgment is filed. The association filed its motion for award of attorney's fees on July 9, 2003, 161 days after entry of the Jan. 29 judgment. 
 
The court determined that Dine waived the issue of excessive fees because he failed to provide any relevant citations or legal authority to support his claims. The association based its attorney's fees on billing records showing time spent and its counsel's hourly compensation rate. The association's lawyer confirmed he had handled litigation matters for the past 18 years and that his customary billing rate for similar cases was $195. He also stated that his hourly rate was at or below the customary market rate for real-estate litigation in Los Angeles County and provided an hourly breakdown of time spent on the case. The record showed that the trial court reviewed the documents presented by the association's counsel and reduced the attorney's fees by more than $12,000. The appeals court found that Dine established no abuse of discretion and that his unsupported assertion that the fees were excessive failed to provide a basis upon which to disturb the trial court's discretionary ruling. The court affirmed the trial court's judgment.

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