Judge rules in Hermitage condo cases
NEWFANE- Windham County Superior Court Judge John Treadwell ruled in favor of three would-be Garmisch Court condominium owners following a hearing on Tuesday.
According to court documents, the defendants, the Hermitage Inn Real Estate Holding Company and James R. Barnes, never responded to the three lawsuits, and didn't appear at the hearing. Treadwell acknowledged that Barnes and the Hermitage had been sent notices regarding the action. "I assume you have not heard from the defendants?" he asked the plaintiffs' attorney David Pocius. "I emailed the defendants to reiterate what was happening, but heard nothing," Pocius replied.
Referring to a proposed order authored by Pocius, Treadwell asked about a claim for attorneys fees. Pocius said he used an order signed previously by Treadwell in two similar Hermitage cases as a template for his order. "Attorneys fees were awarded in the other matters, Goodman and Dixon, and I followed suit," he said.
Treadwell said attorneys fees were not addressed in the plaintiffs' purchase and sale agreements, so he would not include them in the default judgment. Pocius scratched the fees from the order, and handed the paperwork to Treadwell, who signed all three orders, totalling more than $3.6 million, on the spot.
The largest order was for TFT Holdings, an New York company that provided $1,458,249 in unspecified services to the Hermitage and agreed to take a condominium and Hermitage Club membership as partial payment. According to TFT's complaint, the club membership, unit #401 Garmisch Court, and deeded rights were $1,198,000, which was paid in full from the amount owed TFT for services.
But although the condominium was completed, TFT was unable to close on the property because of numerous mechanics' liens and other encumbrances. "Despite receiving the entire purchase price, (the Hermitage) failed to pay contractors who contributed to the construction of the unit. In addition, it has failed to pay other vendors, taxes, and other liabilities. This has resulted in numerous encumbrances on the unit, as well as other property and assets owned and controlled by the Hermitage and Barnes, including liens, tax liens, and court-ordered attachments."
According to the complaint, despite TFT's demands, the Hermitage and Barnes "refused to close the sale of the unit and convey to (TFT) marketable title free and clear of encumbrances and defects in the form of a Vermont warranty deed."
Treadwell's order names TFT as the owner of unit #401, and requires the Hermitage and Barnes to close on the property in 15 days.
A second order was granted in favor of plaintiffs Charles T. Collins and Ana Cladera, who entered into a $1,107,192.99 purchase and sale agreement with the Hermitage Inn Real Estate Holding Company and Barnes for unit #402 Garmisch Court. Collins and Cladera made several "progress" payments totalling $1,065,679 as various phases of construction were completed. Their story is similar to TFT's experience. "(The Hermitage and Barnes) used the progress payments to pay other expenses, and failed to pay contractors, resulting in numerous encumbrances on the unit."
Treadwell's order names Collins and Cladera the owners of the unit, and orders the Hermitage and Barnes to close on the property within 15 days, noting that Collins and Cladera owe $41,513 due at closing.
The final order Treadwell signed Tuesday granted a motion for default judgment in favor of Pamela Keefe, as trustee of the Carol H. Butler Trust, which has two Hermitage Club memberships. Keefe signed a $1,092.993 purchase and sale agreement for unit #504 Garmisch Court, made progress payments, but was unable to take ownership of the unit after the Hermitage and Barnes failed to pay contractors and vendors. In his order, Treadwell names Keefe the owner of unit #504 and orders the Hermitage and Barnes to close the transaction within 15 days. The orders signed by Treadwell also awarded the three plaintiffs interest on the money they paid to the Hermitage and Barnes.