Alpine Haven Property Owners Assn., Inc. v. Deptula

Alpine Haven Property Owners Assn., Inc. v. Deptula (2002-035); 175 Vt. 559;
830 A.2d 78

2003 VT 51

[Filed 04-Jun-2003]

                                 ENTRY ORDER

                                 2003 VT 51

                      SUPREME COURT DOCKET NO. 2002-035

                             JANUARY TERM, 2003


  Alpine Haven Property Owners	       }	APPEALED FROM:
  Association, Inc.	               }
                                       }
      v.	                       }	Franklin Superior Court
                                       }
  Edward Deptula, Bertrand and         }        
  Joseph Emmett, David Orrock,         }        DOCKET NO. S 468-97 Fc
  Frederick and Laura Snyder,	       }	
  Deborah Upshall, Esther Verheist,    }
  and Susan White	               }
                                                Trial Judge: Edward J. Cashman



             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Defendants Edward Deptula and Bernard and Joseph Emmett,
  homeowners in the Alpine Haven development, appeal a summary judgment order
  to pay three years of overdue fees, plus interest and costs, for road
  maintenance and other services rendered by plaintiff Alpine Haven Property
  Owners Association, Inc. (the Association).  Defendants argue that the
  trial court erred by (1) entering judgment against defendant Deptula in the
  full amount claimed based on the doctrine of collateral estoppel; (2)
  applying the Uniform Common Interest Ownership Act of 1994 (UCIOA), 27A
  V.S.A. §§ 1-101 to 4-120, in resolving the dispute against the other
  defendants; (3) dismissing defendants' accord and satisfaction defense and
  consumer fraud counterclaim; and (4) improperly granting the Association
  summary judgment.  We affirm in part, reverse in part, and remand.

       ¶  2.  This case began as a collection action filed by the
  Association against a small group of homeowners, including defendants on
  appeal, for fees owed for three annual assessment periods (from November 1,
  1996 to October 31, 1999).  The dispute, however, goes back much further
  than that.  The Alpine Haven development was founded in the 1960s and, at
  the time of this dispute, included approximately eighty units, mostly
  chalets.  Pursuant to deed covenants, the original developer, Alpine Haven,
  Inc., provided defendants with garbage removal and street lighting, and
  maintained roads within the development, in return for a "reasonable annual
  fee."  The developer later constructed a swimming pool, tennis courts, and
  other recreational facilities to which individual homeowners could
  subscribe for a separate fee.
   
       ¶  3.  In the late 1970s, fees for deeded services began to
  increase, leading to more than ten lawsuits between the developer and
  certain homeowners over the reasonableness of the fees.  In one of those
  actions, Deptula sought a declaratory judgment in Franklin Superior Court
  that the developer had breached the deed covenants and that the fees
  assessed by Alpine Haven, Inc. over the previous five years were excessive. 
  In its 1992 decision, the court held that a common scheme existed for the
  maintenance of street lighting and rights-of-way, and thus Deptula was
  obligated to contribute rateably to these services, although he was not
  obligated to pay for optional services such as garbage removal and private
  driveway plowing.  The court found the $1,200 per year charged by the
  developer to all lot owners was reasonable.  However, the court allowed
  Deptula to subtract the average costs of driveway plowing and garbage
  removal, since he did not receive those services, and found that the fair
  and equitable fee for the remaining services was $1,050 per year.  For
  future years, the court required that the percentage increase assessed
  against Deptula must be equal to the percentage increase for all other lot
  owners in the community, and warned that Deptula could become liable for
  litigation expenses if he refused to pay.  The litigation continued,
  however, and in 1996, in one of six small claims actions between Deptula
  and Alpine Haven, Inc., the Orleans Superior Court ordered Deptula to pay
  $1,102.50 per year - a five percent increase over the 1992 superior court
  judgment.  This increased amount was also assessed against all other lot
  owners in the community receiving the same services.

       ¶  4.  That same year a majority of the community's homeowners
  formed the Alpine Haven Property Owners Association, Inc., and contracted
  with the soon-to-retire developer to purchase and assume ownership of the
  development's common lands, roads, and recreational facilities and to
  provide all deeded and recreational services.  Although membership was
  initially granted to all homeowners in the development, some homeowners,
  including defendants, opted out of the Association.  As a result, during
  the period in dispute (November 1, 1996 to October 31, 1999), nonmembers
  were provided deeded services only - garbage removal, street lighting, and
  road maintenance and snow removal - while members were provided all deeded
  services plus access to recreational facilities.  Nonmembers were billed a
  base fee as established by the 1992 and 1996 Deptula judgments, plus an
  annual increase based on the Consumer Price Index, and, since 1998, a pro
  rata share of payments on a Federal Emergency Management Agency (FEMA) loan
  to repair flood-damaged community roads.  Members were billed a pro rata
  share of all expenses remaining after the nonmembers' fee assessment was
  subtracted from the annual budget.
   
       ¶  5.  Since the Association took over on November 1, 1996,
  defendants have refused to pay the full assessment.  In 1997, the
  Association sued to collect, initiating this case.  Defendants
  counterclaimed and moved for summary judgment, alleging, inter alia,
  unreasonably high fees, accord and satisfaction, and violation of the
  Vermont Consumer Fraud Act, 9 V.S.A. §§ 2451-2480g.  The Association then
  cross-moved for summary judgment to dismiss all counterclaims.  The trial
  court issued two decisions.  In its first decision, the court dismissed all
  of Deptula's counterclaims and granted summary judgment against Deptula for
  the full amount claimed, plus costs and interest, on the grounds that the
  1992 and 1996 judgments precluded him from relitigating the reasonableness
  of the fee assessments.  The court also dismissed all counterclaims raised
  by the remaining defendants, but held that triable issues remained with
  respect to the affirmative defense of accord and satisfaction.  The court
  ordered an evidentiary hearing on two questions: (1) the defense of accord
  and satisfaction for defendants other than Deptula, and (2) the
  Association's compliance with the UCIOA's requirements for common
  assessments as provided in 27A V.S.A. § 3-115.  The court specifically held
  that the Association did not have to prove the reasonableness of its fees
  at the hearing.

       ¶  6.  After the hearing, the court issued a second decision,
  determining that there was no genuine issue of material fact that the
  Association had not substantially complied with the UCIOA, and that the
  fees were therefore valid.  The court did state, however, that

    [t]he defendants' underlying defenses attack the reasonableness of
    the rate structure for the fees claimed.  Nothing in the factual
    presentation infers that the rate structure is not reasonable.  To
    the contrary, repeated judicial determinations have reached that
    conclusion.  In addition [to] the Uniform Common Ownership Act of
    1994, the plaintiff may rely upon those decisions to support a
    finding of reasonableness.  The defendants' response claims that
    if given time and enough records they could fashion a more
    reasonable rate structure.  As noted in the prior finding of
    December 7, 2000, they seek veto over the rate structure.  They
    have [not] (FN1) demonstrated the existence of any genuine issue
    of material fact on this issue.
         
       ¶  7.  The court issued judgment for the Association without
  directly mentioning the accord and satisfaction defense and granted
  judgment, labeled "summary judgment," in favor of the Association.  Shortly
  thereafter, the court issued judgment against all defendants in the full
  amount claimed, plus costs and interest, and, in Deptula's case, attorney
  fees.  Defendants Deptula and the Emmetts subsequently filed the instant
  appeal.

       ¶  8.  In reviewing a grant of summary judgment, (FN2) we use the same
  standard as the trial court, and affirm the granting of a motion for
  summary judgment if there are no genuine issues of material fact and the
  moving party is entitled to judgment as a matter of law.  Springfield
  Hydroelectric Co. v. Copp, 172 Vt. 311, 313, 779 A.2d 67, 70 (2001);
  V.R.C.P. 56(c).  When both parties move for summary judgment, each is
  entitled to the benefit of all reasonable doubts and inferences when the
  opposing party's motion is being judged.  Bixler v. Bullard, 172 Vt. 53,
  57, 769 A.2d 690, 694 (2001).

       ¶  9.  Before we address the issues specific to each defendant, we
  must first address defendants' common challenge to the application of the
  Uniform Common Interest Ownership Act to this dispute.  This action deals
  with fees assessed in 1996, 1997, and 1998 for assessment years than each
  run from November 1 of the relevant year through October 31 of the
  following year.  The UCIOA was enacted in 1998 to become effective on
  January 1, 1999, after the last assessment in this case on November 1,
  1998.  1997, No. 104 (Adj. Sess.), § 3 (codified as amended at 27A V.S.A.
  §§ 1-101-1-208).  Under § 1-204(a) of the UCIOA, preexisting common
  interest communities are subject to the Act in part, but "only with respect
  to events and circumstances occurring after the effective date of this
  law."  Because none of the events and circumstances in this case occurred
  after the effective date of the Act, we agree with defendants that the
  UCIOA does not apply.

       ¶  10.  Although much of the briefing has been dominated by the issue
  of the applicability of the UCIOA, the Act has only limited significance to
  the issues on appeal.  The trial court relied upon it solely to determine
  that the fees assessed against the Emmetts were reasonable.  Because we
  conclude, however, that the record clearly shows that there is no genuine
  issue of material fact that the fees assessed by the Association were not
  unreasonable, and the trial court so found, we affirm the grant of summary
  judgment on alternate grounds.  See Dicks v. Jensen, 172 Vt. 43, 49, 768 A.2d 1279, 1284 (2001) (affirming summary judgment on alternate grounds);
  Sorge v. State, 171 Vt. 171, 174 n.*, 762 A.2d 816, 818 n.* (2000) (Court
  may affirm trial court's decision despite improper rationale if correct
  result was reached).  The court's error in applying the UCIOA is harmless.

       ¶  11.  We first consider the arguments raised by Deptula.  Deptula
  contends that the court: (1) erred by prohibiting him, under the doctrine
  of collateral estoppel, from contesting the reasonableness of the
  assessments; (2) compounded the above error by prohibiting him from
  introducing evidence on the defense of accord and satisfaction; and (3)
  improperly issued summary judgment in favor of the Association sua sponte. 
  We disagree on all three points.

       ¶  12.  As stated above, Deptula's deed requires him to pay a
  "reasonable annual fee" for the services specified in the deed -
  maintenance of roads, snow removal from the roads, street lighting, and
  water service.  At the time of this litigation, Deptula had been
  unsuccessful in seven previous attempts to legally contest the service fees
  assessed by Alpine Haven, Inc.  In the primary litigation on which
  plaintiff relies, the 1992 Franklin Superior Court action, the court held
  that the "fair and equitable maintenance fee" for street maintenance and
  plowing and street lighting was $1,050 per year.  In a subsequent small
  claims action, the court found a fee of $1,102.50 would be reasonable for
  1994-95, reflecting the amount set in the superior court action updated by
  the percentage increase for all owners in the development.  The Association
  argues here, as it did below successfully, that issue preclusion prevents
  Deptula from relitigating the reasonableness of the fee in this action.
   
       ¶  13.  Collateral estoppel, or issue preclusion, bars the subsequent
  relitigation of an issue that was actually litigated and decided in a prior
  case where that issue was necessary to the resolution of the dispute. 
  Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265, 583 A.2d 583, 587
  (1990). We have said that issue preclusion should only be found when

    (1) preclusion is asserted against one who was a party or in
    privity with a party in the earlier action; (2) the issue was
    resolved by a final judgment on the merits; (3) the issue is the
    same as the one raised in the later action; (4) there was a full
    and fair opportunity to litigate the issue in the earlier action;
    and (5) applying preclusion in the later action is fair.

  Id.  We have also held that issue preclusion should not apply to cases
  litigated in small claims court.  See Cold Springs Farm Dev., Inc. v. Ball,
  163 Vt. 466, 471, 661 A.2d 89, 92 (1995) (FN3) (giving preclusive effect to
  small claims adjudications is inconsistent with the simplicity and
  informality of small claims procedures and would chill the use of small
  claims courts).

       ¶  14.  Deptula first argues that there is no privity between Alpine
  Haven, Inc. and the Association because Alpine Haven did not expressly
  convey to the Association its right to enforce the judgment against
  Deptula.  The failure of Alpine Haven, Inc. to assign its judgment to the
  Association is irrelevant; the privity requirement relates to the party
  against whom issue preclusion is being asserted, not the party that is
  asserting issue preclusion.  See Trepanier, 155 Vt. at 265, 583 A.2d  at
  587.  Deptula was a party in the prior action; thus the privity requirement
  is satisfied.

       ¶  15.  Deptula also argues that the factual circumstances in the
  current litigation are so different from the issues heard in 1992 that it
  would be inequitable to hold him to the earlier result.  "In deciding upon
  the application of issue preclusion, we balance our 'desire not to deprive
  a litigant of an adequate day in court' against 'a desire to prevent
  repetitious litigation of what is essentially the same dispute.' "  Berlin
  Convalescent Ctr., Inc. v. Stoneman, 159 Vt. 53, 60, 615 A.2d 141, 145?46
  (1992) (quoting Restatement (Second) of Judgments § 27 cmt. c (1982)). 
  Factors we have examined to determine whether "essentially the same
  dispute" is involved include: whether there is a substantial overlap in the
  evidence and argument between the two proceedings; whether the same rule of
  law is involved; whether pretrial preparation and discovery in the first
  case covered the issues in the second proceeding; and how closely the
  claims in the two proceedings are related.  Id.

   
       ¶  16.  In the current action, Deptula seeks to again challenge the
  reasonableness of the fees.  While he points to some changes - services are
  provided by a nonprofit organization rather than a for-profit venture, the
  Association no longer provides a discount for early payments, the
  Association uses separate fee structures for members and nonmembers, and
  the fees include an extra charge for capital improvements (the FEMA loan) -
  it is undisputed that the services provided by the Association are
  identical to those provided by Alpine Haven, Inc.  Similarly, Deptula does
  not contest that the fees charged by the Association are expressly based on
  the fee formula found to be fair and equitable in the prior judgment. (FN4)  
  We note that the FEMA loan, which is the only new charge, is distributed on
  a per lot basis as required by the prior judgment.  Thus, we have no
  trouble in concluding that the dispute over the reasonableness of the fees
  in this case involves "essentially the same dispute" as the prior action
  and that the claims, arguments, evidence, and discovery are virtually
  identical in the two cases.  See Berlin Convalescent Ctr., 159 Vt. at 60,
  615 A.2d at 145?46.  Because Deptula lost and did not appeal the judgment
  in the prior case, he remains bound by the result.  See id. at 57, 615 A.2d 
  at 144 (both claim and issue preclusion protect the courts and the parties
  against the burden of relitigation, encourage reliance on judicial
  decisions, and prevent vexatious litigation).              

       ¶  17.  Much of Deptula's arguments are based on his claim that fees
  must be calculated on a cost basis, and that costs changed when the
  Association took over the common property and roads.  The deeds, however,
  require the payment of a reasonable annual fee, not a pro rata share of
  actual costs.  A fee is a charge for labor or services.  See, e.g., Black's
  Law Dictionary 629 (7th ed. 1999).  Courts must enforce contracts as they
  are written, and may not ignore their provisions.  Roy's Orthopedic, Inc.
  v. Lavigne, 145 Vt. 324, 326, 487 A.2d 173, 175 (1985).  Where the language
  of a contract is clear, as it is here, the parties are bound by the common
  meaning of the words that they chose to express the content of their
  understanding.  Id.  Thus, the Association is not limited to charging only
  costs, but may assess a reasonable fee for its services.  Cf. Lee v.
  Magnuson, 660 P.2d 1095, 1097 (Or. Ct. App. 1983) (declining to limit fees
  for use of an airstrip to maintenance and repair costs when deed covenants
  obligated mutual beneficiaries to pay a reasonable annual fee).  More
  importantly, the reasonableness of the fee does not depend on which entity
  was to receive it.
   
       ¶  18.  Deptula's accord and satisfaction defense fails for similar
  reasons.  Deptula asserts accord and satisfaction with respect to one of
  the three years at issue in this litigation.  For that year, he sent a
  check to the Association treasurer in the amount of $278.59.  The check was
  accompanied by a letter stating that he refused to pay the billed amount
  because the Association provided "no substantiation" that the billed amount
  reflected the actual cost of road maintenance for his lot.  The Association
  deposited the check after writing "without prejudice" on it.  Under
  Frangiosa v. Kapoukranides, 160 Vt. 237, 244, 627 A.2d 351, 355 (1993), the
  reservation of rights language the Association added to the check would
  have avoided defendant's accord and satisfaction defense.  However, the law
  was changed by the Legislature's addition of § 3-311 to the Uniform
  Commercial Code.  See 1993, No. 158 (Adj. Sess.), § 12, eff. Jan. 1, 1995. 
  With respect to payments "by use of instrument," the law of accord and
  satisfaction is now governed by § 3-311.

       ¶  19.  Under 9A V.S.A. § 3-311(a), accord and satisfaction may apply
  if the person against whom the claim is asserted acts "in good faith" in
  tendering the instrument in full satisfaction of the claim and does so with
  respect to a claim that is "unliquidated or subject to a bona fide
  dispute."  Id. § 3-311(a)(i), (ii).  At least in part, the section is
  intended to codify the common law of accord and satisfaction.  Id. § 3-311,
  cmt. 3.  Our common law has required a bona fide dispute as to the amount
  owed.  See Adams v. B.P.C., Inc., 143 Vt. 308, 309-10, 466 A.2d 1170, 1171
  (1983).  In Adams, this Court quoted Loizeaux Builders Supply Co. v. Donald
  B. Ludwig Co., 366 A.2d 721, 726 (N.J. Super. Ct. 1976) as follows: "While
  it is not necessary that the dispute or controversy should be well-founded,
  it is necessary that it should be in good faith.  Without an honest
  dispute, an agreement to take a lesser amount in payment of a liquidated
  claim is without consideration and void."  Id. at 311, 466 A.2d at ___. 
  "Good faith" under the UCC means "honesty in fact and the observance of
  reasonable commercial standards of fair dealing."  9A V.S.A. § 3-103(a)(4).

       ¶  20.  We conclude that the trial court had sufficient undisputed
  facts before it to find that Deptula did not act in good faith in disputing
  the assessment bill for 1996-97, and that the bill was not subject to a
  bona fide dispute. (FN5)  Deptula had litigated his arguments that the
  assessment amounts were excessive and unfair in the 1992 action and lost,
  and thereafter lost in successive years when the developer was required to
  sue him to obtain payment of the assessment.  By the time that Deptula sent
  the check for which he claims accord and satisfaction, he no longer was
  raising a "bona fide dispute" over the amount owed or acting "in good
  faith."  We thus reject his defense of accord and satisfaction.

       ¶  21.  Finally, Deptula contends that it was error for the court in
  its initial decision to grant summary judgment for the Association sua
  sponte.  There was no error.  V.R.C.P. 56(c)(3) specifically authorizes the
  court to issue summary judgment against the moving party when appropriate. 
  Once the court concluded that Deptula was precluded from relitigating the
  reasonableness of the fee, and dismissed each of his defenses and
  counterclaims, the matter became ripe for summary judgment since there were
  no remaining issues of material fact and the Association was entitled to
  judgment as a matter of law.
   
       ¶  22.  We turn now to the arguments raised by the Emmetts.  The
  Emmetts' primary argument is that the fee structure used for nonmembers,
  including the Emmetts, is unreasonable because it is based upon the formula
  established under the 1992 and 1996 cases against Deptula, rather than a
  pro rata share of the actual costs of services rendered.  Although the
  trial court's second summary judgment decision is based primarily on the
  Uniform Common Interest Ownership Act, it did rule secondarily that
  defendants had not shown that the fees charged by the Association were
  unreasonable.

       ¶  23.  Again, we emphasize that the Emmetts' deed, like the Deptula
  deed, allows the Association to collect a reasonable fee, as opposed to
  requiring a pro rata share of actual costs.  Thus, we reject the central
  contention of their argument that a nonmember fee amount that is not based
  on current costs is unlawful.  We also conclude, based on the record, that
  the different fee systems for members and nonmembers have not resulted in
  unfair assessments.  It is true that members and nonmembers were billed on
  different billing cycles.  The total assessments paid over the three years
  at issue, however, were $4,275.50 by each member compared to only $3,382.99
  by each nonmember.  Even subtracting $250 per year from the total costs to
  each member to reflect costs for members' access to recreational
  facilities, (FN6) the three-year costs to members ($3,525.50) was still
  greater than the three-year cost to nonmembers.  Thus, the use of the old
  formula was reasonable since it actually resulted in lower total rates over
  the three years for nonmembers.

       ¶  24.  Second, the Emmetts contend that by virtue of the separate
  fee structures, nonmembers were subsidizing members' access to recreational
  facilities and other services denied to nonmembers.  As noted above, the
  three-year costs to members was greater than the three-year cost to
  nonmembers, even excluding the extra costs charged to members for access to
  recreational facilities.  Thus, we see no subsidy.  Instead, we find that
  the current fee structure is reasonable since it closely parallels the
  former fee structure.

       ¶  25.  Third, the Emmetts complain that the old fee formula
  incorporated the costs of capital improvements for roads and lighting,
  whereas the Association added a special assessment for capital
  improvements.  Defendants' exhibits show that the road infrastructure had
  significantly deteriorated under the later years of the original
  developer's tenure, and as a result needed $78,000 in repairs when the
  Association took over.  More to the point, the particular costs defendants
  complain of are the payments on a low-interest loan from FEMA to repair
  extensive damage from a July 1997 flood.  The Association has distributed
  the costs of this loan pro rata among all members and nonmembers who live
  along the common right-of-way.  As a matter of law, it is reasonable to
  distribute the cost of improvements equally among the common beneficiaries
  of the right-of-way.  See Hubbard v. Bolieau, 144 Vt. 373, 375, 477 A.2d 972, 973 (1984) ("[W]hen several persons enjoy a common benefit, all must
  contribute rateably to the discharge of the burdens incident to the
  existence of the benefit.") (internal quotation marks omitted).  Thus, the
  Emmetts have failed to demonstrate the existence of any genuine issue of
  material fact that the special assessment for the FEMA loan was
  unreasonable.
   
       ¶  26.  Considering the entire record, we agree with the trial court
  that the Emmetts have raised no genuine issue of material fact showing that
  the nonmembers' rate structure or fees were unreasonable.  Indeed, repeated
  judicial determinations have reached the same conclusion.  Although none of
  those judgments are binding on the Emmetts, the Association's reliance on
  these judgments to calculate the assessment for nonmembers lends support to
  the finding that the Association's rates were at all times reasonable.

       ¶  27.  The Emmetts next assert that the court erred by dismissing
  their affirmative defense of accord and satisfaction regarding a $300 check
  the Emmetts proffered as full payment of their 1996-97 assessment.  The
  facts with respect to this claim are similar to those discussed with regard
  to Deptula.  The Emmetts complained about a lack of "accounting of your
  nonprofit business" and claimed to calculate the amount owed from an
  Association report.  The Association also wrote "without prejudice" on the
  Emmetts' check.  There are, however, two differences between the Emmetts'
  defense and the Deptula defense.  First, as acknowledged by the trial
  court, the Emmetts' circumstances were more ambiguous.  They had refused to
  pay in the past, but had settled claims without a decision against them. 
  Thus, issue preclusion did not apply to them.  Second, and presumably
  because of the first difference, the trial court treated these defenses
  differently.  In its first summary judgment decision, it stated, "With the
  exception of Mr. Deptula, the Court has not excluded, as a matter of law,
  the accord and satisfaction affirmative defense raised by other defendants
  for consideration at trial."  (Emphasis added).  After taking evidence,
  some of which related to the Emmetts' accord and satisfaction defense, the
  court failed to mention the accord and satisfaction issue in its second
  summary judgment decision.  It did, however, grant summary judgment for
  plaintiff against all defendants, leaving nothing left to litigate.

       ¶  28.  Although the record is far from clear, we interpret the trial
  court as holding that it could not find a lack of good faith or a bona fide
  dispute as a matter of law, and that it would make a finding based on the
  evidence presented; the court, however, proceeded to overlook the issue. 
  We thus agree that summary judgment was inappropriate on the Emmetts'
  accord and satisfaction defense for the 1996-97 assessment and reverse and
  remand the judgment against the Emmetts on that issue alone.

        
       ¶  29.  Finally, the Emmetts argue that the Association violated the
  Vermont Consumer Fraud Act in knowingly misrepresenting the cost of
  services by billing nonmembers based on the 1992 and 1996 judgments, rather
  than by setting rates based on actual costs.  The Consumer Fraud Act makes
  unfair or deceptive acts or practices in commerce unlawful.  9 V.S.A. §
  2453(a).  We agree with the trial court that there is nothing unfair or
  deceptive about adhering to court orders or to setting a reasonable fee
  based upon them.  Moreover, there was no attempt at deception.  The
  Association at all times disclosed the basis for the fee assessment to
  nonmembers, which in fact was the same formula in use since the 1988
  assessment.  Thus, on these facts, the court properly dismissed the
  counterclaim for failure to make out the statutory elements of consumer
  fraud.  See Poplaski v. Lamphere, 152 Vt. 251, 254?55, 565 A.2d 1326, 1329
  (1989) ("Summary judgment is mandated under the plain language of V.R.C.P.
  56(c) where, after an adequate time for discovery, a party fails to make a
  showing sufficient to establish the existence of an element essential to
  his case and on which he has the burden of proof at trial.") (internal
  quotation marks omitted).

       The judgment against Edward Deptula is affirmed.  The judgment against
  Bertrand and Joseph Emmett for fees assessed for 1996-97 is reversed and
  remanded for proceedings consistent with this decision; the remainder of
  the judgment against Bertrand and Joseph Emmett is affirmed.


                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Ernest W. Gibson III, Associate Justice
                                       (Ret.) Specially Assigned


------------------------------------------------------------------------------
                                  Footnotes


FN1.  It appears clear in context that the court unintentionally omitted the
  word "not" from the last sentence of numbered paragraph 4 of its decision.

FN2.  For purpose of this appeal, we assume that the court's decision
  following the evidentiary hearing was a summary judgment decision as the
  court labeled it.  In fact, neither party has disagreed with the court's
  characterization of its judgment, and the nature of the court's judgment is
  not determinative of any issue raised in the appeal.

FN3.  We agree with defendant that under Cold Springs Farm Development, we
  cannot give preclusive effect to the small claims decision covering the
  1994-95 assessment year.  In fact, that decision relied upon the preclusive
  effect of the 1992 superior court decision and updated the allowed fee
  amount to reflect average increases to other lot owners, a calculation
  defendants do not contest.  We note this decision only to show the
  continuing litigation between the parties.

FN4.  Defendants did claim that increases in their annual fees were not
  linked to the increases in the annual assessments paid by members.  The
  evidence was that the Association first adjusted the fee charged to
  nonmembers to reflect inflation and, based on that income and budgeted
  expenses, calculated the members' assessments.  To make this system work,
  members are billed on a different cycle than nonmembers.  As explained in ¶
  23, while this system did not mean that defendants' increases mirrored
  those of members, any discrepancy benefitted nonmembers, who faced a lower
  total cost than members over the three-year period involved in this suit.

FN5.  Deptula makes an independent argument that the court did not permit
  any evidence to be presented on his accord and satisfaction defense. 
  Deptula moved for summary judgment on this defense and included all the
  facts he believed were relevant, and the court ruled on those facts. 
  According to V.R.C.P. 56(c)(3), the court could award summary judgment in
  favor of the Association on the issue when it concluded that there were no
  material facts in dispute and the law supported the Association's position.

FN6.  This figure is based on the extra $250 that the original developer,
  Alpine Haven, Inc., charged to any lot owner who desired access to
  recreational facilities, over and above the $1,102.50 charged to all lot
  owners.