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Appellate panel hears dispute over condo flooring, nuisance claim and HOA fee award
Summary
An appellate panel heard argument in Thompson v. Landmark 6 over whether the trial court properly granted summary judgment for the defendants and awarded attorney's fees; appellant says noise from a neighbor's new flooring made her unit uninhabitable and raised factual disputes, while defendants cite prior approval and code compliance.
An appellate panel heard oral argument in Thompson v. Landmark 6 Condominium Homeowners Association over whether the trial court erred in granting the defendants' motions for summary judgment and awarding attorney's fees.
Alex Larkin, counsel for appellant Lisa Thompson, told the court the trial court should have left factual disputes to a trier of fact. "The trial court erred in granting both of the defendants' motions for summary judgment," Larkin said, arguing the condominium board failed to enforce the declaration and that the installation of hard-surface flooring created excessive noise that has left his client unable to live in her unit. Larkin said the board's post-installation approval and the board's handling of the complaint raise genuine issues that should be tried.
Responding counsel Matthew Ishihara, for respondent Brandon Phillips, said Phillips sought and received approval from the HOA president before he started work and that he began installation after providing material specifications. Ishihara told the panel the record shows the flooring "met the minimum requirements for the City of Des Moines" and the International Building Code and that acoustical testing by experts for both sides supported that conclusion, undercutting a negligence- or nuisance-based recovery.
Christos Arjanas, representing Landmark Association, defended the trial court's order and the fee award. He said the association reviewed Phillips's proposed materials and that the declaration and state law give the association powers to fine or otherwise enforce violations. "If there's a violation of the declaration, the association is empowered to fine and assess the violating owner," Arjanas said, and he argued prevailing-party fee statutes and the declaration supported the award of attorney's fees.
Panel members pressed counsel on several points: what specific sanction the declaration prescribes if an owner fails to obtain written approval; whether the association's investigation was frustrated when Thompson initially denied access to her unit; and whether the Condominium Act provisions relied on by the association apply to a condominium created before that statute. Larkin argued the Condominium Act postdated this condominium's creation and that the Horizontal Property Regimes Act governs, and he pressed that the trial court made insufficient findings and failed to segregate fees for claims that were dismissed earlier in the litigation.
The matter was taken as submitted for decision.
What happens next: the appellate panel will issue a written decision resolving whether the trial court properly awarded summary judgment and attorney's fees and whether any portion of the record requires remand for trial or additional findings.
