Bridgecreek Condominium Assn., Inc. v. Robinson

[Cite as Bridgecreek Condominium Assn., Inc. v. Robinson, 2021-Ohio-1042.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
BRIDGECREEK CONDOMINIUM : APPEAL NO. C-200059
ASSOCATION, INC., TRIAL NO. A-1902313
:
Plaintiff-Appellee,
:
vs. O P I N I O N.
:
DORIS ROBINSON,
Defendant-Appellant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: March 31, 2021
Cuni, Ferguson & LeVay Co., L.P.A., Amy Schott Ferguson and Jonathan J.
Hartman, for Plaintiff-Appellee,
Doris Robinson, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Defendant-appellant Doris Robinson appeals the judgment of
foreclosure entered in favor of plaintiff-appellee Bridgecreek Condominium
Association, Inc., (“Bridgecreek”). Because we determine that Bridgecreek did not
have the authority to assess unit owners like Robinson for trash removal, Robinson
did not wrongfully withhold part of her assessment from Bridgecreek. The trial court
erred in granting summary judgment, and we reverse.
Background
{¶2} Robinson owns a condominium unit in Bridgecreek. In 2016,
Robinson began withholding $11.50 per month of her annual condominium
assessment, because she disagreed with Bridgecreek’s decision to assess unit owners
for trash removal. Bridgecreek placed a lien on Robinson’s property, and then filed
the instant foreclosure complaint. Bridgecreek’s complaint alleged that, pursuant to
Bridgecreek’s declarations (the “Declarations”), Robinson owed past due
assessments and late fees. Bridgecreek filed a motion for summary judgment.
Notably, Bridgecreek did not mention any specific Declarations or bylaws that
Robinson had allegedly failed to follow. Instead, Bridgecreek simply asserted that
Robinson failed to pay her “entire” assessment.
{¶3} Robinson, through counsel, filed a motion in opposition, which
explained her position that Bridgecreek lacked authority to assess unit owners for
trash removal under the current Declarations, and that the Declarations had never
been amended, nor had a special assessment ever been conducted. Robinson
explained that she had paid her assessment timely, except for the $11.50 per month
for trash removal. In its reply, Bridgecreek in essence admitted to all of the facts set
2
OHIO FIRST DISTRICT COURT OF APPEALS
forth by Robinson. The only dispute was Bridgecreek’s authority to assess its unit
owners for trash removal.
{¶4} The magistrate ruled in favor of Bridgecreek, and Robinson filed
objections. Robinson again objected to Bridgecreek’s authority to assess unit owners
for trash removal. The trial court overruled Robinson’s objections and entered a
foreclosure judgment. Robinson filed the instant notice of appeal, and also a motion
to stay the foreclosure judgment. The trial court granted Robinson’s motion to stay,
on the condition that she post a $9,000 supersedeas bond, which she then posted.
{¶5} Robinson appeals.
Summary Judgment
{¶6} Robinson sets forth two assignments of error, both of which assert that
the trial court erred in granting summary judgment. Robinson’s first assignment of
error asserts that the trial court erred in granting summary judgment because
Bridgecreek’s assessment and subsequent lien were illegal. Robinson’s second
assignment of error asserts that the trial court erred in granting summary judgment
because of Bridgecreek’s breach of contract and breach of fiduciary duty.
{¶7} This court reviews the grant of summary judgment de novo. O’Brien v.
Great Parks of Hamilton Cty., 1st Dist. Hamilton No. C-190697, 2020-Ohio-6949, ¶
6. Summary judgment is proper under Civ.R. 56(C) when no genuine issues of
material fact remain, the moving party is entitled to judgment as a matter of law, and
construing the evidence most strongly in favor of the nonmoving party, reasonable
minds can come to only one conclusion based on the evidence, which is adverse to
the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364
N.E.2d 267 (1977).
3
OHIO FIRST DISTRICT COURT OF APPEALS
Legal Analysis
{¶8} Robinson makes several arguments within her assignment of error;
however, one is dispositive of her appeal. She argues that prior to 2016, trash
removal had been the responsibility of individual unit owners. In 2016, Bridgecreek
implemented a community-wide trash program and contracted with Rumpke to do
so. Bridgecreek then assessed unit owners for the Rumpke trash removal. Robinson
argues that Bridgecreek’s action in assessing unit owners violated the Declarations
and bylaws.
{¶9} Condominium declarations are essentially contracts between the unit
owners and the association. DiPenti v. Park Towers Condominium Assn., 10th Dist.
Franklin No. 19AP-384, 2020-Ohio-4277, ¶ 21; see R.C. 5311.19(A) (“All unit owners
* * * and the unit owners association of a condominium property shall comply with
all covenants, conditions, and restrictions set forth in a deed to which they are
subject or in the declaration, the bylaws, or the rules of the unit owners association,
as lawfully amended.”).
{¶10} Bridgecreek relied exclusively on the Declarations in arguing that
Robinson wrongfully withheld part of her assessment. The Declarations provide for
“[a]nnual assessments for the maintenance and repair of the Common Elements and
for the insurance, real estate taxes and assessment of the Common Elements
together with the payment of Common Expenses * * *.” Article XI, Section 11.01.
“Common Elements” are defined in the Declarations as “common areas and
facilities” that “are not part of a Unit[.]” Article I, Section 1.05; see R.C. 5311.01(F)
(defining “common elements” as “[a]ll other areas, facilities, places, and structures
that are not part of a unit[.]”).
4
OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Article I, Section 1.05(b) provides a nonexhaustive list of the following
“Common Elements”:
Foundations, columns, girders, beams, supports, supporting walls,
roofing, wiring, pipe lines, halls, corridors, paved stoops, lobbys (sic),
common stairways, porches, antenna systems, sprinkler systems, fire
escapes and common entrances and exits of all buildings;
Yards, gardens, fences, parking areas, pipelines and storage spaces;
Installations of central services serving more than one Unit including
but not limited to power, light, gas, hot and cold water, heating,
refrigeration and air conditioning equipment;
Tanks, pumps, motors, fans, compressors, ducts and in general, all
apparatus and installation existing for common use;
All portions of any structures and of any equipment and facilitates
situated on Common Elements;
Any items such as appliances, equipment, fixtures, or other forms of
personal property situated on the Common Elements and which are
owned in common by the Owners;
All other parts of the Condominium Property necessary or convenient
to its existence, maintenance, and safety, or normally in common use,
or which have been designated as Common Elements in the
Declaration or Exhibits attached thereto.
{¶12} The Declarations define “Common Expenses” as “[a]ll sums assessed
against the Unit Owners by the Declarant, and/or the Association, as the case may
be, for the administration, maintenance, repair, operation and replacement of the
Common Elements.” Article I, Section 1.06.
5
OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} As noted by Bridgecreek, the Declarations provide that the association
has “control over all aspects of the method and manner by which trash, rubbish,
garbage and other materials are to be removed from the premises and shall have
control of the selection of the organization, agent or independent contractor to be
responsible for collection and removal.” Article XIII, Section 13.10. However, the
issue in this case is not whether Bridgecreek can select Rumpke for trash removal,
but whether Bridgecreek can assess its unit owners for the removal.
{¶14} The Declarations permit assessment for “common elements,” and
nothing in the Declarations indicates that trash removal is a “common element.”
Each unit owner has his or her own trash, which would be “part of the Unit,” and not
shared with other unit owners. Reinforcing this notion, both parties cite to the
Bridgecreek bylaws, Article VI, Section 1, which states that “Common Expenses shall
include * * * trash services for the Common Elements, but not the units * * *.”
{¶15} Bridgecreek has not pointed to any record evidence that would allow it
to assess its unit owners for trash removal. Because Bridgecreek failed to show that
Robinson violated the Declarations in withholding a portion of her assessment
related to trash removal, the trial court erred in granting summary judgment in
Bridgecreek’s favor. Therefore, we sustain Robinson’s first assignment of error, and
we decline to address her second assignment of error as moot. See App.R.
12(A)(1)(c).
Conclusion
{¶16} In conclusion, because Bridgecreek failed to prove that Robinson
violated the Declarations in withholding a portion of her assessment, we hold that
the trial court erred in granting summary judgment in favor of Bridgecreek on its
6
OHIO FIRST DISTRICT COURT OF APPEALS
foreclosure complaint. We remand the matter for further proceedings consistent
with this opinion and the law.
Judgment reversed and cause remanded.
MYERS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry this date.
7