THE WILLOWS CONDOMINIUM          )
OWNERS ASSOCIATION, INC.,        )
                                 )
          Plaintiff-Respondent,  )
                                 )
v.                               )
                                 )
MICHAEL KRAUS, ROSEMARY          )
LANZONE, SHERYL FIALA, THOMAS )
LONG, DENNIS BATTERAM, NATHAN )
SUTTON AND SHANNON SUTTON,       )              No. SD33447
PAUL ROBERTS AND MOONBOW         )              Filed: 3-23-15
PROPERTIES, LLC,                 )
                                 )
          Defendants-Appellants, )
and                              )
                                 )
STANLEY WOLINSKI AND             )
JEAN WOLINSKI, DARREN LOWDER )
AND BRENDA LOWDER,               )
                                 )
          Defendants.            )

         APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY

                     Honorable G. Stanley Moore, Circuit Judge

AFFIRMED

      The Willows Condominium Owners Association, Inc. (the Association) filed the

underlying action to obtain declaratory relief concerning the proper distribution of
surplus insurance proceeds that remained after the reconstruction of Building 158, which

had been totally destroyed by fire. The defendants in the action were the nine unit

owners of Building 158, who wanted the surplus insurance proceeds distributed to them.

The Association took the position that the surplus insurance funds should be distributed

to all 58 unit owners at The Willows on the Lake (the Willows). Seven of the nine

defendants (hereinafter referred to as Counterclaimants) filed a counterclaim against the

Association seeking, inter alia, declaratory relief, and damages for breach of trust, breach

of fiduciary duty and breach of contract concerning Association dues.1 The Association

and Counterclaimants filed cross-motions for summary judgment.

       The material facts are not in dispute. The governing document used by the

Association is the “Condominium Declaration for The Willows on the Lake, a

Condominium” (Declaration), which was recorded on July 21, 1983. As required by the

Declaration, the Association purchased and maintained property insurance to cover the

replacement of all the structures on the property. In May 2011, a fire destroyed all nine

units in Building 158.2 The Association received $1,154,300 as insurance proceeds for

the destruction of Building 158. After reconstruction was completed, approximately

$550,000 of the insurance proceeds remained.       During the nearly year-long rebuilding

process, the Association assessed quarterly dues to be paid by all unit owners, including


       1
          The parties who filed counterclaims were Michael Krause, Rosemary Lanzone,
Sheryl Fiala, Thomas Long, Dennis Batteram, Nathan Sutton and Shannon Sutton, Paul
Roberts and Moonbow Properties, LLC. Defendants Stanley and Jean Wolinski, and
Darren and Brenda Lowder are the owners of the remaining two units in Building 158.
They were defendants in the underlying proceedings, but they did not file a counterclaim.
They also have not appealed from the underlying judgment.
       2
         Building 158 was the only building damaged by the 2011 fire. The owners of
the 49 units in the undamaged buildings were not named as parties in the declaratory
judgment action.

                                             2
the nine unit owners of Building 158. Counterclaimants paid those assessments. The

trial court granted the Association’s summary judgment motion and denied

Counterclaimants’ cross-motion.       In granting summary judgment in favor of the

Association, the trial court concluded that certain provisions in the Declaration were

determinative of the issues. The judgment distributed the surplus insurance proceeds to

all 58 unit owners and denied relief on all counts of the counterclaim.

         Counterclaimants appealed and present three points for decision.           Point I

contends the trial court erred by distributing the surplus insurance proceeds to all 58 unit

owners because that ruling is contrary to the Declaration and Missouri’s Uniform

Condominium Act (UCA).3 Point II contends the trial court erred by denying relief on

Counterclaimants’ breach of trust and fiduciary duty theories because the Association

breached both of those duties when it failed to distribute the surplus funds solely to

Building 158 unit owners. Point III contends the trial court erred by denying relief on

Counterclaimants’ breach of contract claim because the Association improperly assessed

quarterly dues against Building 158 unit owners after their building burned.

         The material facts are undisputed, and only issues of law are presented for our de

novo review. See Nevils v. Group Health Plan, Inc., 418 S.W.3d 451, 453 (Mo. banc

2014).       We find no merit in Counterclaimants’ points and affirm the judgment.

Additional facts necessary to the disposition of the case are included below as we address

Counterclaimants’ three points on appeal.




         3
           The UCA, §§ 448.1-101 to .4-120, was enacted in 1983 and applies to all
condominiums created in Missouri after September 28, 1983. See § 448.1-102.1; Epstein
v. Villa Dorado Condominium Ass’n, Inc., 371 S.W.3d 23, 27 (Mo. App. 2012).



                                             3
                                            Point I

       Counterclaimants contend the trial court erred by distributing the surplus funds to

all 58 unit owners because that ruling does not comply with sections 26(f) and (h) in the

Declaration. In determining the meaning of those provisions, we consider the document

as a whole and give the words their natural and ordinary meaning. Clampit v. Cambridge

Phase II Corp., 884 S.W.2d 340, 345 (Mo. App. 1994). We will find ambiguity in these

provisions only if the terms are susceptible of more than one meaning so that reasonable

persons may fairly and honestly differ in the construction of the terms. Id.

       Section 1(bb) of the Declaration defines a “Unit Owner” as a “person or persons

whose estate or interests individually or collectively aggregate fee simple absolute

ownership of a Unit or Units[.]”           Section 26(a) of the Declaration requires the

Association to purchase and maintain property insurance on all structures on the property.

Section 21 of the Declaration makes these insurance premiums common expenses that are

borne by all Unit Owners. Section 26(f) of the Declaration states:

       (f) Any loss covered by the insurance described in subparagraph (a)
       hereinabove shall be adjusted with the Association, and insurance
       proceeds for that loss shall be payable to the Association (as trustee for
       Unit Owners and lienholders as their interests may appear), and not
       directly to any mortgagee or beneficiary under any deed of trust. Subject
       to the provisions of subparagraphs (h) and (i) hereinbelow, the proceeds
       shall be disbursed first for the repair or restoration of the damaged
       property, and Unit Owners and lienholders are not entitled to receive
       payment of any portion of the proceeds unless there is a surplus of
       proceeds after the property has been completely repaired or restored, or
       the Condominium is terminated.

Counterclaimants argue that “Unit Owners” means only the owners of units in Building

158. Reading section 26(f) together with section 26(h), as we must, we disagree with that

assertion. The latter subsection states:




                                               4
       (h) Any portion of the Condominium for which insurance is required
       under this section which is damaged or destroyed shall be repaired or
       replaced promptly by the Association unless (i) the Condominium is
       terminated, or (ii) repair or replacement would be illegal under any state
       or local health or safety statute or ordinance, or (iii) eighty percent (80%)
       of the Unit Owners vote not to rebuild, which 80% must include the
       unanimous agreement of each Owner of a Unit or assigned Limited
       Common Element which will not be rebuilt. The cost of repair or
       replacement in excess of insurance proceeds and reserves is a Common
       Expense ….

Section 26(h).4 Based upon the plain language of this section, all of the Unit Owners

would have to bear the shortfall as a common expense (either by resort to the reserves or

an additional assessment) if Building 158 could not be fully reconstructed using only the

insurance proceeds. Given the clear intent expressed in this section for all Unit Owners

to share the burden when the insurance proceeds are insufficient, we conclude that “Unit

Owners” in section 26(f) similarly refers to all of the Unit Owners when there are surplus

funds to be distributed.

       Counterclaimants suggest this construction conflicts with a later portion of section

26(h), which deals with the disbursement of insurance proceeds if no rebuilding occurs:

       (h) .... If the entire Condominium is not repaired or replaced: (i) the
       insurance proceeds attributable to the damaged Common Elements shall
       be used to restore the damaged area to a condition compatible with the
       remainder of the Condominium, (ii) the insurance proceeds attributable to
       Units and Limited Common Elements which are not rebuilt shall be
       distributed to the Owners of those Units and to the Owners of the Units to
       which those Limited Common Elements were allocated, (iii) and the
       remainder of the proceeds shall be distributed to all the Unit Owners or
       lienholders, as their interests may appear, in proportion to the Common
       Element interests of all Units.

Based upon the foregoing language, Counterclaimants argue that the insurance proceeds

would have been distributed solely to the nine unit owners in Building 158 if it had not


       4
           None of the conditions in subsections (i)-(iii) apply in this case.



                                               5
been rebuilt. Therefore, they assert that the phrase “Unit Owners” in section 26(f) also

must refer only the nine unit owners in Building 158. We are not persuaded by that

argument.

       First, this later provision does not apply because Building 158 was completely

reconstructed using insurance proceeds that were funded by all of the Unit Owners.

After reconstruction, Counterclaimants’ interest in the condominium was fully restored.

To construe section 26(f) as they suggest would provide them with a windfall.

Moreover, if the insurance proceeds had been insufficient for reconstruction, the plain

language of section 26(h) requires all Unit Owners to share that shortfall.

Counterclaimants’ interpretation would favor them if there is a surplus, and burden all

other Unit Owners if there is a shortfall. Our harmonious construction of sections 26(f)

and (h), on the other hand, avoids that inequitable result.

       Second, if Building 158 had not been reconstructed, we do not interpret the later

provision in section 26(h) to require that all of the insurance proceeds be given to

Counterclaimants, as they contend. Based upon the plain language of subsection (i), the

insurance proceeds would have to be used to repair damaged common elements before

Counterclaimants would have received anything. Next, the plain language of subsection

(ii) states that “the insurance proceeds attributable to Units and Limited Common

Elements which are not rebuilt shall be distributed to the Owners of those Units and to

the Owners of the Units to which those Limited Common Elements were allocated ….”

(Italics added.) It is important to note that, if no rebuilding occurred, Counterclaimants’

interest in the condominium would have been extinguished. Subsection (ii) provides a

mechanism for compensating the affected unit owners by giving them the insurance

proceeds attributable to the units which are not rebuilt. The language of this subsection


                                              6
explicitly states that such proceeds shall be distributed to the owners of those units. If

the phrase “Unit Owners” in section 26(f) already referred only to the owners of

damaged units, then this additional limiting language added to subsection (ii) would be

meaningless.5 Finally, once the allocation process is completed, subsection (iii) states

that any surplus funds would be distributed to all the Unit Owners or lienholders.

Accordingly, we disagree with Counterclaimants’ proposed construction of sections

26(f) and (h).6

       For all of the foregoing reasons, the trial court did not err in distributing the

surplus insurance proceeds to all Unit Owners. Point I is denied.

                                         Point II

       Counterclaimants contend the trial court erred by denying relief on Count II

(breach of trust) and Count III (breach of fiduciary duty) of their counterclaim. This

point assumes the trial court erred in distributing the surplus insurance proceeds to all

Unit Owners. Because this assumption is wrong, Point II is denied.

                                         Point III

       Counterclaimants contend the trial court erred in granting summary judgment on

Counterclaimants’ breach of contract theory because that ruling is contrary to section 3 of

the Declaration. Their argument is based on the following facts.




       5
          The absence of such limiting language in section 26(f) suggests the omission
was intentional and supports our construction of the phrase “Unit Owners” there to mean
all Unit Owners.
       6
          Counterclaimants also present a statutory argument based upon UCA § 448.3-
113.5 and § 448.3-113.8. Because the Willows was created in July 1983, however, the
UCA does not apply. See § 448.1-102.1 (providing that the UCA applies to
“condominiums created within this state after September 28, 1983”).

                                            7
       Counterclaimants sought to recover their quarterly assessment for Association

dues in the second, third, and fourth quarters of 2011 and first quarter of 2012 when their

individual units were in the process of being rebuilt. Counterclaimants claim they did not

owe the assessment based upon the language of the assessment formula in section 3:

       [T]he percentage figure represented by a fraction whose numerator is the
       area of such Unit (in square feet) and whose denominator is the area (in
       square feet) of all Units in the Condominium at any given time.

Section 3 (emphasis added).7 “Unit” is defined by the Declaration as “a physical portion

of the Property including one or more rooms occupying one or more floors, or a part or

parts thereof, and designed and designated for separate ownership or occupancy as a

residential apartment for one family, and having lawful access to a public way[.]” See

§ 448.010(10)    (defining   a   condominium     “unit”   in   nearly identical      terms).8

Counterclaimants argue that the assessment formula’s language “at any given time”

means the Declaration only allows for assessment of dues “based on the square footage of

the units presently existing at each time of assessment.” They argue that their units had

zero square footage while being rebuilt, which should result in zero assessment.

Counterclaimants’ argument assumes their units must be complete and capable of


       7
      Section 3 of the Declaration is entitled “DIVISION OF PROPERTY AND
ALLOCATION OF INTERESTS” and first addresses how the property is divided:

       The real property described in Exhibit A and the improvements thereon
       are hereby divided into fee simple estates, each such estate consisting of
       separately designated Unit, with the Limited Common Elements reserved
       to the use of such Unit as designated on the Plat and set forth on “Exhibit
       C”, attached hereto and made part hereof by this reference, and the
       undivided percentage or fractional interest in and to the Common
       Elements appurtenant to each Unit.
       8
           This definition is from Missouri’s Condominium Property Act (CPA),
§§ 448.005-.210, which does apply in this case. See Epstein, 371 S.W.3d at 27 (“CPA
governs condominium associations created prior to 1983”).

                                            8
occupancy for their square footage to be included in the dues assessment formula. We

disagree.

       A similar argument was rejected in Bradley v. Mullenix, 763 S.W.2d 272, 275

(Mo. App. 1988). There, a party argued that “a ‘unit’ is not a ‘unit’ until competed and

capable of occupancy” because “it would be unreasonable to assess maintenance, repair

and administrative expenses against units which were under construction.” Id. at 275. In

rejecting this argument, the eastern district of this Court explained:

       Whether a building contains one complete and occupied unit and nine
       incomplete units or vice versa the grass on the lawn grows to the same
       length, the snow on the sidewalk accumulates to the same depth, the roof
       and exterior paint deteriorate at the same rate.

Id. at 275-76. The Court also noted the argument is contrary to the definition of “unit,”

as defined “in the statute [§ 448.010(10)] and the Declaration of Condominium”:

       Both define “unit” as meaning a part of the property designed and
       intended for independent use and having lawful access to a public way.
       Both refer to the designation of units on a plat required to be recorded
       simultaneously with the Declaration. Both assign ownership interest in
       the common elements and proportionate share of common element
       expense on the basis of the percentage of each unit to the total units listed
       in the Declaration. Neither the statute nor the Condominium Declaration
       makes any distinction between completed and unfinished units.

Id.; see also Mountain View Condominiums Homeowners Ass’n Inc. v. Scott, 883 P.2d 453,

457 (Az. Ct. App. 1994) (citing Bradley and holding that because unit ownership includes a

vested, undivided interest in the common elements, the obligation to pay assessment arises

from unit ownership and is not dependent upon unit completion).

       We reach the same conclusion here.              The assessment language upon which

Counterclaimants rely, “at any given time,” does not require the Association to ensure that

Counterclaimants’ unit square footage is complete before applying the assessment formula.

Further, we note the above assessment language appears after describing the formula’s


                                              9
“denominator,” which “is the area (in square feet) of all Units,” indicating that it is square

footage of all units that may change “at any given time,” depending on the addition or

termination of certain units. The platted square footage of a unit used as the numerator in the

assessment formula is known and does not change. Therefore, the trial court did not err in

granting summary judgment against Counterclaimants on their breach of contract theory. Point

III is denied.

        The judgment of the trial court is affirmed.



JEFFREY W. BATES, J. – OPINION AUTHOR

DANIEL E. SCOTT, J. – CONCUR

WILLIAM W. FRANCIS, JR., C.J./P.J. – CONCUR




                                             10
