$15,000 Sewer Line Repair Dispute Ends Up Well for Homeowner.
If you have followed our blog at all, you will know that many decisions echo our Mission Statement, which is borrowed from Retired Justice Wallin’s oft-quoted remark that attorney’s fees are “the tail that wags the litigation dog”–a quote from Deane, an HOA decision. Well, here is a recent one that proves the point.
Dover Village Association v. Jennison, Case Nos. G042741/G042990 (4th Dist., Div. 3 Nov. 24, 2010; certified for publication on Dec. 21, 2010) involved a situation where an HOA challenged a sewer line repair cost for a homeowner based on the theory that the sewer pipe was an “exclusive use common area” for which the HOA was not responsible rather than being a true common area expense chargeable to the HOA. The total sewer repair cost was around $15,000. Homeowner won the merits dispute both at the trial and appellate levels, in a 3-0 decision penned by Acting Presiding Justice Rylaarsdam.
Want to know the amount of fees that were awarded to the prevailing homeowner? Answer: about $17,000–more than the sewer repair work itself. Goes to show you how important that fee “tail” is in modern day litigation.
BLOG UNDERVIEW–On the merits, Justice Rylaarsdam used “fancy” Latin phrases to resolve the dispute–expressio unius est exclusio alterius (say one thing and impliedly exclude the other) and ejusdem generis (the general term or category is restricted to those things that are similar to those which are enumerated specifically). This result is a law professor’s dream and takes us back to many a contract class where these Latin phrases dominated the particular classes devoted to principles of contract interpretation. Who says that law school training does not come in handy? Not us.