Slosar v. Homestead Creek Homeowners Assoc., Inc.

[Cite as Slosar v. Homestead Creek Homeowners Assoc., Inc., 2011-Ohio-4420.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96320
PATRICIA SLOSAR, ET AL.
PLAINTIFFS-APPELLEES
vs.
HOMESTEAD CREEK
HOMEOWNERS ASSOCIATION, INC.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Parma Municipal Court
Case No. 10 CVI 02719
BEFORE: Keough, J., Blackmon, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: September 1, 2011
ATTORNEY FOR APPELLANT
Joseph F. Salzgeber
Foth & Foth Co., L.P.A.
11221 Pearl Road
Strongsville, OH 44136
ATTORNEY FOR APPELLEES
Richard L. Stoper, Jr.
Rotatori Bender Co., L.P.A.
800 Leader Building
526 Superior Avenue, N.E.
Cleveland, OH 44114
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Homestead Creek Homeowners Association,
Inc. (“Homestead” or “the Association”), appeals the trial court’s decision
awarding judgment in favor of plaintiffs-appellees, Patricia and John Slosar
(“the Slosars”). For the reasons that follow, we affirm.
{¶ 2} In July 2010, the Slosars filed a complaint against Homestead and
M2 Management Group, LLC (“M2”) seeking reimbursement for expenses
incurred in having an easement located on their property landscaped with new
mulch. The matter was referred to a magistrate and the following facts were
elicited at trial.
{¶ 3} The Slosars own a home and a large parcel of property at 8960 Avery
Road in Broadview Heights, Ohio. Adjacent to the property are single-family
homes that belong to and comprise the Association. Homestead is run by a
Board of Trustees, which retained M2, owned by Leonard Mauger (“Mauger”),
to operate the day-to-day affairs and operations of Homestead.
{¶ 4} This case centers around a Landscaping Easement that was entered
into on July 2, 1991 between Homestead and SMS Development Co., Inc. for a
parcel of land adjoining the 8960 Avery Road property. This easement was
negotiated at the same time that the Slosars purchased the property from SMS
Development. The easement was created to give access to and enhance the
surroundings of the Homestead Creek development. The easement parcel
contains a lengthy brick wall and detailed landscaping that extends in front of
the Slosars’ property and continues into the development entranceway. The
Slosars’ property faces the backside of the wall. John Slosar testified that the
Landscaping Easement was specifically established because of the Slosars’
concern about the maintenance of the easement property.
{¶ 5} Pursuant to the terms of the Landscaping Easement, Homestead
had “the right to enter upon said premises to inspect, maintain, and if
necessary, replant the landscaping placed by [the Slosars] thereon and repair
the stone wall erected thereon.” Further, it obligated Homestead “to maintain
the stone wall and landscaping in at least their condition as of the date” the
Landscaping Easement was executed. In the event that Homestead failed “to
maintain the easement area as provided herein, then [the Slosars] * * * shall,
after thirty (30) days written notice to [Homestead] to remedy the situation,
have the right to either maintain or repair the landscaping and charge
[Homestead] therefor, or terminate the easement.”
{¶ 6} The Slosars testified that every year from 1991 until approximately
2008, the easement property was cleaned, weeded, edged, and freshly
mulched to their satisfaction. However, in 2008, after Homestead elected a
new Board of Trustees and M2 was retained as the new property
management company, the yearly mulching did not occur on their easement
property.
{¶ 7} Beginning in the fall of 2009, M2 received various communications
from the Slosars requesting that their easement property be mulched and
edged. On April 17, 2010, the Slosars sent a fax to Mauger indicating that
their easement property needed to be cleaned, edged, and mulched because it
was not done in 2009. In response to the fax, Homestead directed M2 to have
the landscapers remove mulch from an existing landscaped area on the
Homestead Creek property and apply it to the Slosars’ side of the easement
property. Additionally, Mauger and the landscaper conferred with the Slosars
and confirmed that their easement property would be cleaned and mulched.
{¶ 8} Subsequently, on May 14, the Slosars called Mauger expressing
concern that while landscaping work was being performed on Homestead’s
property and portion of the easement, no work was being performed on their
side of the easement property. Mauger reassured the Slosars that the
landscapers had not completed the landscaping in the area.
{¶ 9} On May 17, the Slosars sent another fax to Mauger stating that
their personal landscaper would be at their home on “Wednesday [May 19] or
Thursday [May 20]” and if M2 could not provide a reasonable completion date
for the landscaping, they would have the work done by their personal
landscapers and ask for reimbursement from Homestead. Mauger
subsequently informed the Slosars that he would address their issues at the
Board of Trustees meeting that evening and get back to them the following day.
Later that day, Mauger received an email from his landscapers informing him
that existing mulch had been removed from the “center island” of the
Homestead Creek development and placed on the Slosars’ side of the easement.
Mauger conceded that he did not verify that this work was actually done and it
appears this information was not shared with the Slosars. Moreover, Mauger
admitted that the amount of mulch that would have been moved from the
“center island” was not enough to cover the area to be mulched on the Slosars’
side of the easement.
{¶ 10} When the Slosars did not hear from Mauger the following day and
their phone calls were unanswered and unreturned on the days that followed,
they had their landscaper apply 12 yards of mulch on their easement parcel at
a cost of $733.77.
{¶ 11} The Slosars submitted the invoice to Homestead for
reimbursement; however, Homestead refused to pay the bill, claiming it was
not obligated to mulch the easement parcel under the Landscaping Easement
because mulch is not “maintenance” but serves as beautification and
enhancement. The Slosars testified that beautification was one aspect of
mulch; however, John Slosar also testified that mulch controls weed growth.
{¶ 12} The magistrate issued a written decision granting Homestead’s
oral motion to dismiss M2, but finding in favor of the Slosars and awarding
judgment in the amount of $733.77, plus interest. Homestead filed objections
to the magistrate’s decision, which the trial court overruled, adopting the
magistrate’s decision.
{¶ 13} Homestead appeals, raising the following assignment of error for
this court to consider:
“The trial court erred by interpreting the recorded landscaping
easement, which required the defendant Homeowners Association to
maintain the brick wall and landscaping in the easement area located
on the plaintiff Homeowners’ property, as requiring that the
defendant association to reimburse the plaintiffs for the cost of
placing new mulch on their side of the easement area, where: (1)
plaintiffs did not provide the required 30-day notice; (2) defendant
had been informed by its expert landscapers that no new mulch was
needed and, therefore, instead caused existing mulch to be moved
from the entrance ‘island’ to the easement area on plaintiff’s property
in response to their requests; and (3) the new mulch was not
necessary for maintenance purposes, but only for mere beautification
purposes.”
{¶ 14} The Slosars’ brief succinctly sets forth and dissects the relevant
issues in this appeal: (1) whether the notice given by the Slosars was
sufficient and in accordance with the Landscaping Easement, (2) whether the
Landscaping Easement is enforceable as an independent contract and is not
subject to the business-judgment rule, and (3) whether maintenance of the
landscaping on the easement includes mulching.
{¶ 15} Appellate review of a trial court’s interpretation of an easement
agreement is conducted under a de novo standard of review, but we defer to the
trial court’s factual findings if there is competent, credible evidence that
supports the trial court’s decision. Murray v. Lyon (1994), 95 Ohio App.3d
215, 219, 642 N.E.2d 41.
{¶ 16} Homestead first contends that the trial court erred in finding that
the Slosars complied with the 30-day notice requirement under the
Landscaping Easement.
{¶ 17} The pertinent language of the Landscaping Easement provides:
“Should [Homestead] fail to maintain the easement area as provided herein,
then [the Slosars] * * * shall, after thirty (30) days written notice to
[Homestead] to remedy the situation, have the right to either maintain or
repair the landscaping and charge [Homestead] therefor, or terminate the
easement.”
{¶ 18} The plain and unambiguous language of the easement provided
that the Slosars were required to give Homestead 30 days written notice to
remedy their failure to maintain the easement. If the requisite notice was
given and Homestead did not remedy the issue, then the Slosars had the right
to either maintain or repair the landscaping and charge Homestead, or
terminate the easement.
{¶ 19} Clearly, Homestead has failed to maintain the easement since 2008
because it is undisputed that no maintenance to the easement was performed
in 2009. It is also undisputed that the Slosars’ fax constitutes “written notice.”
Therefore, the issue is whether the April 17 faxed correspondence was
sufficient notice under the Landscaping Easement.
{¶ 20} The April 17 fax, which the Slosars sent to Mauger stated: “Please
be advised that the easement on [our] property will need [to be] cleaned, edged
and mulched this year. You will recall no mulching or edging was done last
spring to save the development on costs. However, this year the work will
need to [be] part of your spring activities.”
{¶ 21} Homestead argues that this faxed correspondence was insufficient
because it did not mention the 30-day clause of the recorded Landscaping
Easement and it did not affirmatively state that the Slosars would exercise
their rights to maintain or repair the landscaping and charge the Association if
the requested work was not performed in the easement area. Although the
faxed correspondence is devoid of any formal language found in the
Landscaping Easement, the subsequent actions taken by Homestead and its
agents evidence that it understood the nature and purpose of the
correspondence.
{¶ 22} Mauger testified that after receiving the fax, he contacted the
landscaping contractor regarding moving mulch from the front entrance area of
the development to the Slosars’ easement property. Additionally, on April
30, Mauger and the landscaper informed the Slosars that they would be
cleaning and mulching the Slosars’ portion of the easement. On May 14 there
was more communication between Patricia Slosar and Mauger after Patricia
noticed that the landscapers only cleaned and mulched the area on
Homestead’s portion of the easement area, and not the Slosars’ side. On May
17, Patricia again faxed correspondence to Mauger regarding the lack of
attention to the easement. She indicated that her personal landscapers were
coming to do work on that Wednesday (May 19) or Thursday (May 20) on other
areas of their property. She requested a reasonable completion date and
stated that if one could not be given, she would have her landscapers landscape
the easement and she would bill the Association. No further correspondences
were exchanged between the Slosars and Mauger or Homestead.
{¶ 23} We find competent and credible evidence supporting the trial
court’s findings and conclusion that the Slosars complied with the thirty-day
notice requirement when they sent a fax to Mauger on April 17 requesting that
Homestead maintain the easement. According to the Landscaping Easement,
the Slosars could have terminated the easement and essentially removed the
wall and other landscaping erected on the easement property. We find that the
Slosars chose the more neighborly solution under the Landscaping Easement
by having $733 worth of mulch applied to their property.
{¶ 24} Next, Homestead contends that the trial court erred in finding that
the business-judgment rule does not apply in this matter. Homestead
maintains that the business-judgment rule allows it to exercise discretion
under the Landscaping Easement.
{¶ 25} The business-judgment rule “is a rebuttable presumption that
directors are better equipped than the courts to make business judgments and
that the directors acted without self-dealing or personal interest and exercised
reasonable diligence and acted with good faith. A party challenging a board of
directors’ decision bears the burden of rebutting the presumption that the
decision was a proper exercise of the business judgment of the board.” Gries
Sports Ent., Inc. v. Cleveland Browns Football Co. (1986), 26 Ohio St.3d 15, 20,
496 N.E.2d 959.
{¶ 26} The business-judgment rule is inapplicable to this case because the
Slosars’ cause of action arises from an independent easement contract between
them and Homestead, and not from any bylaws or regulations that might
create any fiduciary relationship between Homestead and the Slosars. In
general, “[a]n easement is the interest in the land of another, created by
prescription or express or implied grant, that entitles the owners of the
easement, the dominant estate, to a limited use of the land in which the
interest exists, the servient estate.” (Citations omitted.) Crane Hollow, Inc.
v. Marathon Ashland Pipe Line, LLC (2000), 138 Ohio App.3d 57, 66, 740
N.E.2d 328. When interpreting the terms of a written easement document,
courts must follow the rules of contract construction “so as to carry out the
intent of the parties, as that intent is evidenced by the contractual language.”
Lakewood Homes v. BP Oil, Inc., Hancock App. No. 5-98-29, 1999-Ohio-851,
citing Skivolocki v. E. Ohio Gas Co. (1974), 38 Ohio St.2d 244, 313 N.E.2d 374,
paragraph one of the syllabus. The language of an easement, considered in
light of the surrounding circumstances, is the best indication of the extent and
limitations of the easement. Apel v. Katz, 83 Ohio St.3d 11, 17,
1998-Ohio-420, 697 N.E.2d 600.
{¶ 27} In this case, the Landscaping Easement expressly obligates
Homestead “to maintain the stone wall and landscaping in at least their
condition as of the date hereof.” Past actions by Homestead indicates that the
Slosars’ easement property was weeded, cleaned, edged, and mulched every
year from 1991 until 2008. Because the Slosars are not members of the
Association, but private homeowners who have a contractual easement with
Homestead, we find that the trial court did not err in finding that the
business-judgment rule does not apply.
{¶ 28} Finally, Homestead contends that the trial court erred in finding
that mulch is considered “maintenance.” The Landscaping Easement
expressly provides that Homestead is to “maintain the landscaping” as it
existed at the time the easement was established. The Slosars testified that
re-mulching of their easement was an ongoing activity performed by
Homestead since 1991.
{¶ 29} We find that competent and credible evidence exists supporting the
trial court’s finding that mulch is not just for beautification, but is also a form
of landscaping maintenance. John Slosar testified that mulch is applied to
hinder weeds growing in the landscaped areas. Although there was testimony
that mulch may be used primarily for beautification purposes, we find that
mulch serves a dual purpose — preventing weeds and allowing proper water
drainage while preserving and maintaining the beauty of the area. Therefore,
we find that Homestead’s obligation to “maintain the landscaping” includes
mulching.
{¶ 30} Accordingly, we find that the trial court did not err in adopting the
magistrate’s decision and entering judgment in favor of the Slosars in the
amount of $733.77, plus interest. Homestead’s assignment of error is
overruled.
Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
PATRICIA ANN BLACKMON, P.J., and
EILEEN A. GALLAGHER, J., CONCUR