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Park West Condominium Association, Inc. V. Bryan T. Morgan, Lawrence K

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Park West Condominium Association, Inc. V. Bryan T. Morgan, Lawrence K Brigham Young University Law School BYU Law Digital Commons Utah Court of Appeals Briefs 2005 Park West Condominium Association, Inc. v. Bryan T. Morgan, Lawrence K. Deppe and Judith S. Deppe : Reply Brief Utah Court of Appeals Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca2 Part of the Law Commons Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Denver C. Snuffer, Jr.; Bret W. Reich; Nelson, Snuffer, Dahle & Poulsen; James R. Blakesley; Attorneys for Plaintiff-Appellee. Steven R. McMurray; Bradley L. Tilt; Joan M. Andrews; Fabian & Clendenin; Attorneys for Defendants-Appellants. Recommended Citation Reply Brief, Park West Condominium Association v. Morgan, No. 20050800 (Utah Court of Appeals, 2005). https://digitalcommons.law.byu.edu/byu_ca2/6022 This Reply Brief is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court of Appeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. IN (HUMAN < OHIO HI Al'PkUS PARK WEST CONDOMINIUM ASSOCIATION, INC., Appellate Case Nu JOOMWOf Plaintiff-Appellee, BRYAN T. MORGAN, LAWRENCE K. DEPPE AND JUDITH S. DEPPE, Defendants-Appellants. REPLY BRIEF OF DEFENDANTS-APPELLANTS LAWRENCE K. DEPPE AND JUDITH S. DEPPE Interlocutory Appeal from a Decision of the Third Judicial District Court In and For Summit County, State of Utah, Honorable Bruce C. Lubeck, Presiding Denver C. Snuffer, Jr. (#3032) Steven R. McMurray (A2215) Bret W. Reich (#9542) Bradley L. Tilt (A7649) NELSON, SNUFFER, DAHLE & Joan M. Andrews (A7803) POULSEN, P.C. FABIAN & CLENDENIN, FU 10885 South State Street 215 South State Street, Twelfth Floor Sandy, Utah 84070 P.O. Box 510210 Telephone: (801)576-1400 Salt Lake City, Utah 84151 -0210 Facsimile: (801)576-1960 Telephone. (801)531-8900 Facsimile .^nn ^96-2814 James R. Blakesley, Esq. (v .^>4) 2595 East 3300 South Attorneys for Defendants-Appellants Salt Lake City, Utah 84109 Lawrence K. Deppe and Judith S. Deppe Telephone: (801)485-1555 Facsimile: (801)493-0111 Attorneys for Plaintiff-Appellee Park West Condominium Association, Inc. ORAL ARGUMENT REQUESTED FILED UTAH APPELLATE COURTS APR 0 4 2006 IN THE UTAH COURT OF APPEALS PARK WEST CONDOMINIUM ASSOCIATION, INC., Appellate Case No. 20050800-CA Plaintiff-Appellee, BRYAN T. MORGAN, LAWRENCE K. DEPPE AND JUDITH S. DEPPE, Defendants-Appellants. REPLY BRIEF OF DEFENDANTS-APPELLANTS LAWRENCE K. DEPPE AND JUDITH S. DEPPE Interlocutory Appeal from a Decision of the Third Judicial District Court In and For Summit County, State of Utah, Honorable Bruce C. Lubeck, Presiding Denver C. Snuffer, Jr. (#3032) Steven R. McMurray (A2215) Bret W. Reich (#9542) Bradley L. Tilt (A7649) NELSON, SNUFFER, DAHLE & Joan M. Andrews (A7803) POULSEN, P.C. FABIAN & CLENDENIN, PC 10885 South State Street 215 South State Street, Twelfth Floor Sandy, Utah 84070 P.O. Box 510210 Telephone: (801) 576-1400 Salt Lake City, Utah 84151 -0210 Facsimile: (801) 576-1960 Telephone: (801)531-8900 Facsimile: (801)596-2814 James R. Blakesley, Esq. (A0364) 2595 East 3300 South Attorneys for Defendants-Appellants Salt Lake City, Utah 84109 Lawrence K. Deppe and Judith S. Deppe Telephone: (801)485-1555 Facsimile: (801)493-0111 Attorneys for Plaintiff-Appellee Park West Condominium Association, Inc. ORAL ARGUMENT REQUESTED TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii ARGUMENT 1 I. THE ASSOCIATION'S, AND THE DISTRICT COURT'S, RELIANCE ON THE ASSOCIATION'S DECLARATIONS AS AUTHORIZING THE SUBJECT VOTE FAILS SINCE THE DECLARATIONS, AND THE VOTE, ADMITTEDLY DID NOT COMPLY WITH THE UNANIMITY REQUIREMENTS OF SECTION 16-6-33 OF THE NONPROFIT CORPORATIONS ACT 1 II. THE ASSOCIATION'S CITATIONS TO AND ARGUMENTS UNDER OTHER PROVISIONS OF THE NONPROFIT CORPORATIONS ACT AND THE CONDOMINIUM ACT ARE WITHOUT MERIT 8 III. THE ASSOCIATION'S ARGUMENTS REGARDING EQUITABLE CONVERSION ARE UNAVAILING AND INDEED CONFIRM THE DEPPES ARE NOT LIABLE FOR THE CLAIMED ASSESSMENT 11 IV. THE ASSOCIATION'S ARGUMENTS REGARDING THE ASSUMPTION AGREEMENT MISREPRESENT THE DOCUMENT ITSELF AND THE DEPPES' ARGUMENTS REGARDING THE DOCUMENT 15 A. Deppes Have Appealed Regarding Duress and Lack of Consideration 15 B. The Assumption Agreement Is Void for Lack of Consideration 16 C. The Assumption Agreement Is Void for Duress 17 D. The Deppes Did Not Ratify or Affirm, and Indeed Denied, Any Obligation to Pay the Claimed Assessment 22 CONCLUSION 25 367523 1 i TABLE OF AUTHORITIES Page Statutes Utah Code § 16-6-22(12) (1999 Repl.) 4, 7 Utah Code § 16-6-30 (1999 Repl.) 9, 10 Utah Code § 16-6-33 (1999 Repl.) (repealed by SB 61, 2000 Gen. Sess., effective April 30, 2001) .passim Utah Code § 16-6a-707 (2000) 10, 11 Utah Code §57-8-16 7 Utah Code § 57-8-20(2) 11, 12, 19 Utah Code § 57-8-25 14 Utah Code §57-8-34(1) 8 Utah Code § 57-8-35(1) 1, 8 Rules Utah R. Civ. P. 56(c) 21, 22 Cases Andreini v. Hultgren, 860 P.2d 916 (Utah 1993) 17,21 Cannefaxv. Clement, 818 P.2d 546 (Utah 1991) 11, 13 Cary-Lombard v. Sheets, 10 Utah 322, 37 P. 572, 572 (1894) 13 Copper State Leasing Co. v. Blackner Appliance & Furniture Co., 110 P.2d 88 (Utah 1988) 16 367523J jj Drysdale v. Ford Motor Co., 947 P.2d 678 (Utah 1997) 23 Durham v. Margetts, 571 P.2d 1332 (Utah 1977) 23 Jones Waldo Holbrook & McDonough v. Dawson, 923 P.2d 1366 (Utah 1997) 25 Leigh Furniture and Carpet Co. v. Isom, 657 P.2d 293 (Utah 1982) 19 Levangerv. Vincent, 2000 UT App. 103 ^|13, 3 P.3d 187 1, 5, 6, 7, 24 Lucky Seven Rodeo Corp. v. Clark, 755 P.2d 750 (Utah Ct. App. 1988) 23 Nyman v. McDonald, 966 P.2d 1210 (Utah Ct. App. 1998) 23 Reedekerv. Salisbury, 952 P.2d 577 (Utah Ct. App. 1998) 1, 7 Reynolds v. Van Wagoner, 592 P.2d 593 (Utah 1979) 13 Turner v. Hi-Country Homeowners Ass'n, 910 P.2d 1223 (Utah 1996) 2, 9 Udy v. Jensen, 222 P. 597 (Utah 1924) 24 Other Authorities UT Legis 300 (2000) § 235 3 Restatement (Second) of Torts § 175 (1977) 17, 21 Restatement (Second) of Torts § 176 (1977) 17, 18 367523 1 111 ARGUMENT I. THE ASSOCIATION'S, AND THE DISTRICT COURT'S, RELIANCE ON THE ASSOCIATION'S DECLARATIONS AS AUTHORIZING THE SUBJECT VOTE FAILS SINCE THE DECLARATIONS, AND THE VOTE, ADMITTEDLY DID NOT COMPLY WITH THE UNANIMITY REQUIREMENTS OF SECTION 16-6-33 OF THE NONPROFIT CORPORATIONS ACT The "Brief of Plaintiff-Appellee Park West Condominium Association, Inc." (the "Association's Brief) is an invitation for this Court to ignore clear, express, and mandatory statutes in order to allow Plaintiff-Appellee Park West Condominium Association, Inc. (the "Association") to get away with having done so. This Court should deny that invitation, reverse the district court, and declare the Association's claimed special assessment at issue in this case (the "Claimed Assessment") void, invalid, and unenforceable against Defendants-Appellants Lawrence and Judith Deppt (the "Deppes"). As shown more fully in the Deppes' initial brief filed with this Court, both as a matter of statutory law and under established precedents of this Court, condominium owners who form an association and incorporate are subject to the requirements of Utah's condominium ownership act and the nonprofit act. E.g., Utah Code § 57-8-35(1) (stating provisions of Utah's Condominium Ownership Act "shall be in addition and supplemental to all other provisions of law, statutory or judicially declared"); Levangerv. Vincent, 2000 UT App. 103 If 13, 3 P.3d 187, 189 ("by incorporating into a homeowners association, the homeowners bound themselves to the requirements of Utah's Nonprofit Corporations statute"); Reedeker v. Salisbury, 952 P.2d 577, 585 (Utah Ct. App. 1998) 367523 1 1 (holding condominium owners' association was subject to requirements of Utah's Nonprofit Corporations Act "in addition to" those of Utah Condominium Act). The Association in this case does not dispute that since the condominium owners in this case chose to join together and incorporate into the Association, there are therefore two state statutes that apply to it - the Utah Condominium Ownership Act, as it was in effect when the subject vote was conducted in the year 2000, appearing at Utah Code §§ 57-8-1 through -38 (the "Condominium Act"), and the Utah Nonprofit Corporation and Co-operative Association Act as it was in effect at that same time, appearing at Utah Code §§ 16-6-18 through -112 (the "Nonprofit Corporations Act"). Indeed, the Association quotes the Utah Supreme Court in expressly acknowledging the "well established precedent" that homeowners' associations are bound by "the bylaws of [the] corporation, together with the articles of incorporation, the statute under which it was incorporated, and the member's application." (Association's Brief, p. 10 (quoting Turner v. Hi-Country Homeowners Ass % 910 P.2d 1223, 1225 (Utah 1996) (emphasis added)). The Association's analysis, however, focuses only on the Association's internal "Condominium Declarations" (the "Declarations") as purportedly providing authority for the mail-in vote that it conducted on the Claimed Assessment at issue in this case to be conducted by a majority only, despite the requirement for unanimity of mail-in votes under section 16-6-33 of the Nonprofit Corporations Act admittedly applicable at the time the subject vote was taken in the year 2000. (Association's Brief, pp.
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