[Cite as Miller Lakes Community Servs. Assn., Inc. v. Schmitt, 2014-Ohio-4748.]


STATE OF OHIO                     )                        IN THE COURT OF APPEALS
                                  )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

MILLER LAKES COMMUNITY                                     C.A. No.         13CA0045
SERVICES ASSOCIATION, INC.

        Appellant
                                                           APPEAL FROM JUDGMENT
        v.                                                 ENTERED IN THE
                                                           COURT OF COMMON PLEAS
WOLFGANG R. SCHMITT, et al.                                COUNTY OF WAYNE, OHIO
                                                           CASE No.   08-CV-0521
        Appellees

                                 DECISION AND JOURNAL ENTRY

Dated: October 27, 2014



HENSAL, Judge.

        {¶1}     Plaintiff-Appellant, Miller Lakes Community Services Association, Inc. (“Miller

Lakes”), appeals from the judgment of the Wayne County Court of Common Pleas. This Court

dismisses for lack of a final, appealable order.

                                                      I.

        {¶2}     Miller Lakes is a homeowners’ association consisting of residential lots, lakes,

and, in particular, a road named Miller Lake Road. Defendant-Appellees, Wolfgang and Toni

Schmitt (“the Schmitts”), David and Becky Wigham (“the Wighams”), and Richard and Norma

Cooper, both individually and as trustees of the Cooper Family Trust (“the Coopers”)

(collectively, “the Defendants”), are homeowners who live in the vicinity of, but are not

members of, Miller Lakes. The Defendants all have easements, allowing them to travel on

Miller Lake Road. Because they are not members of Miller Lakes, however, the Defendants are

not obligated to pay Miller Lakes the dues it charges its members. Miller Lakes’ Amended
                                                 2


Declaration of Covenants, Conditions, and Restrictions for Miller Lakes Development provides

that Miller Lakes is obligated to maintain and repair the common areas of Miller Lakes,

including its roads and utility lines.

         {¶3}    In 2007 and 2008, Miller Lakes invoiced the Defendants and demanded that they

share in the cost of certain expenses. When the Defendants refused to pay, Miller Lakes brought

suit against them. The first count of its complaint sought declaratory relief. It alleged that the

Defendants: (1) had acquired an access easement across Miller Lake Road; (2) had not paid “for

snow removal, road maintenance, water line or sewer maintenance1 or any other benefits

provided by the common properties at Miller Lakes”; and (3) had “received on a regular basis,

other shared benefits consisting of access to and use of water lines, sewer lines (except [the]

Schmitt[s]), water hydrants, utilities, and other benefits such as benefits in the form of fire and

emergency response access and law enforcement access and protection.” Miller Lakes asked the

court to declare that it was “required to continue to maintain, repair, and replace the common

properties described [in its complaint]” and that the Defendants were “required to share

proportionately in accordance with their ownership interest, all costs and expenses necessary to

maintain, repair and/or replace the shared benefits described in the complaint.” Miller Lakes

also asked the court “for such further declaratory relief as may be deemed necessary to clarify as

a matter of record title the nature and extent of said benefits and services.” Additionally, its

complaint contained one count of unjust enrichment, one count of quantum meruit, and three

specific damage counts, seeking payment on the invoices billed to each of the Defendants. The

unjust enrichment and quantum meruit claims sought payment from the Defendants for the

benefits and services they had accepted from Miller Lakes without payment.


1
    Miller Lakes conceded that the Schmitts rely upon a separate sewer system.
                                                3


       {¶4}    The Coopers answered Miller Lakes’ complaint, and the Schmitts and the

Wighams both answered and filed counterclaims against Miller Lakes. The Schmitts set forth

claims for breach of contract, quasi-contract/unjust enrichment/quantum meruit, adverse

possession, deed reformation, and declaratory relief. In seeking a declaration, they asked the

court to declare:

       (i) that [Miller Lakes] may not charge any maintenance fee or related expenses or
       costs to the Schmitts, (ii) that the Schmitts are entitled to be reimbursed for their
       expenses in maintaining and repairing Miller Lake Road and related areas, and
       (iii) that [Miller Lakes] has a duty to maintain portions of Miller Lake Road and
       related areas including but not limited to the drainage ditch and pipe.

Similarly, the Wighams asked the court to declare that they were not obligated to maintain the

common areas of Miller Lakes or to pay Miller Lakes for “any maintenance fees, costs or related

expenses incurred by Miller Lakes for the maintenance and upkeep of any common areas or

related services located in or around Miller Lake[] [R]oad.” They also set forth a claim for

unjust enrichment/quantum meruit, seeking damages because they had, with Miller Lakes’

knowledge, “performed benefits and services on real property owned by Miller Lakes in the form

of mowing, fertilizing, landscaping, tree trimming, leaf removal and other benefits which

improved real property owned by Miller Lakes.”

       {¶5}    Following discovery, Miller Lakes sought summary judgment: (1) against all the

Defendants on its own claims for declaratory relief, unjust enrichment, and quantum meruit; (2)

against the Schmitts on all of their counterclaims; and (3) against the Wighams on their claim for

declaratory relief. Miller Lakes did not seek summary judgment on its specific damage counts or

on the Wighams’ counterclaim for unjust enrichment/quantum meruit.              The Schmitts, the

Wighams, and the Coopers all separately sought summary judgment against Miller Lakes on all

of Miller Lakes’ claims against them. Additionally, the Wighams sought summary judgment
                                                   4


against Miller Lakes on their counterclaim for declaratory relief. The Wighams did not seek

summary judgment on their counterclaim for unjust enrichment/quantum meruit.

          {¶6}   The trial court sought to resolve the parties’ claims by way of journal entry on

November 19, 2009, and on September 23, 2011. Both of the court’s entries prompted appeals

that this Court ultimately dismissed for lack of a final, appealable order. See Miller Lakes

Community Servs. Assn., Inc. v. Schmitt (“Miller Lakes I”), 9th Dist. Wayne No. 09CA0076,

2011-Ohio-1295; Miller Lakes Community Servs. Assn., Inc. v. Schmitt (“Miller Lakes II”), 9th

Dist. Wayne No. 11CA0053, 2012-Ohio-5116. After this Court’s second remand, the trial court

issued a third journal entry. It is from this third journal entry that Miller Lakes now appeals.

Miller Lakes raises seven assignments of error for our review, which we decline to restate here.

                                                  II.

          {¶7}   As we stated in our prior decisions dismissing the attempted appeals in this

matter,

          [t]his Court is obligated to raise sua sponte questions related to our jurisdiction.
          Whitaker-Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184, 186 (1972).
          This Court has jurisdiction to hear appeals only from final judgments. Article IV,
          Section 3(B)(2), Ohio Constitution; R.C. 2501.02. In the absence of a final,
          appealable order, this Court must dismiss the appeal for lack of subject matter
          jurisdiction. Lava Landscaping, Inc. v. Rayco Mfg., Inc., 9th Dist. No. 2930-M,
          2000 WL 109108 (Jan. 26, 2000).

Miller Lakes II at ¶ 7, quoting Miller Lakes I at ¶ 12. “[A]n order that fails to rule ‘on all of the

issues surrounding the award, leaving nothing outstanding for future determination,’ is not a

final, appealable order.” (Internal quotations omitted.) Miller Lakes II at ¶ 7, quoting Carnegie

Cos., Inc. v. Summit Properties, Inc., 183 Ohio App.3d 770, 2009-Ohio-4655, ¶ 18 (9th Dist.).

Having reviewed the record, we must once again unfortunately conclude that the trial court’s

judgment entry is not final and appealable. That is because “(1) it failed to sufficiently declare
                                                  5


the parties’ rights and obligations with respect to the claims for declaratory judgment, and (2) it

failed to properly dispose of claims which were intertwined with the claims for declaratory

judgment.” Miller Lakes II at ¶ 7.

Declaratory Judgment

       {¶8}    Miller Lakes, the Schmitts, and the Wighams all sought declaratory relief. Where

a party requests a declaratory judgment, “courts of record may declare rights, status, and other

legal relations whether or not further relief is or could be claimed. * * * The declaration may be

either affirmative or negative in form and effect. The declaration has the effect of a final

judgment or decree.” R.C. 2721.02(A). “[I]n order to properly enter judgment in a declaratory

judgment action, the trial court must set forth its construction of the disputed document or law,

and must expressly declare the parties’ respective rights and obligations. If the trial court fails to

fulfill these requirements, its judgment is not final and appealable.” Miller Lakes I at ¶ 15,

quoting Revis v. Ohio Chamber Ballet, 9th Dist. Summit No. 24696, 2010-Ohio-2201, ¶ 38

(Dickinson, J., concurring in judgment only). For clarification purposes, we will separately

outline the declaratory relief sought by each of the parties who pursued that claim for relief.

       Miller Lakes

       {¶9}    In its complaint, Miller Lakes outlined multiple key benefits and services that the

Defendants had allegedly enjoyed at its expense. Those benefits and services were described as:

          Access to an easement across Miller Lake Road

          Snow removal

          Road maintenance

          Water line maintenance

          Sewer line maintenance
                                                  6


          Access to and use of the water lines

          Access to and use of the sewer lines (except the Schmitts)

          Access to and use of the water hydrants

          Access to and use of the utilities

          Fire, emergency response, and law enforcement access and protection

          “[A]ny other benefits provided by the common properties at Miller Lake”

With regard to those benefits and services, Miller Lakes asked the court to make the following

declarations:

      Miller Lakes was required to maintain, repair, and/or replace the aforementioned

       common properties

      The Defendants were “required to share proportionately in accordance with their

       ownership interest, all costs and expenses necessary to maintain, repair and/or replace the

       shared benefits described in the complaint”

       “[F]urther declaratory relief as may be deemed necessary to clarify as a matter of record

       title the nature and extent of said benefits and services.”

   The Schmitts

       {¶10} In their counterclaim, the Schmitts described the following areas of property as

being relevant to their claims against Miller Lakes:

          Miller Lake Road;

          A “private roadway loop known as The Trees”

          The “common areas” of Miller Lakes

          A drainage ditch and pipe

          “[O]ther areas that run along Miller Lake Road.”
                                               7


The Schmitts described how they had maintained Miller Lake Road, the drainage ditch and pipe,

and “related areas” over the years because Miller Lakes had not done so. They further alleged

that, over the years, Miller Lakes had never charged them for any maintenance, repair, or

replacement fees. The Schmitts asked the court to declare that:

          Miller Lakes had no right to charge them any maintenance fees, related expenses, or

           costs

          Miller Lakes had a duty to maintain portions of Miller Lake Road

          Miller Lakes had a duty to maintain “related areas including but not limited to the

           drainage ditch and pipe”

          They were entitled to reimbursement from Miller Lakes for the expenses they

           incurred “in maintaining and repairing Miller Lake Road and related areas.”

       The Wighams

       {¶11} In their counterclaim, the Wighams briefly described how, since acquiring title to

their property, they had maintained and improved certain “real property owned by Miller Lakes.”

David Wigham later described that real property in his affidavit as “the unpaved portions of

Miller Lake Road owned by [Miller Lakes] that is adjacent to our property.” The Wighams

alleged that, over the years, Miller Lakes had never charged them or their predecessors in title

any maintenance, repair, or replacement fees. They asked the court to declare that they were not

obligated to pay Miller Lakes “any maintenance fees, costs or related expenses incurred by

Miller Lakes for the maintenance and upkeep of any common areas and related services located

in or around Miller Lake[] [R]oad.”
                                                 8


       Analysis

       {¶12} In Miller Lakes II, this Court concluded that the trial court’s 2011 judgment entry

“was ineffective in resolving the claim and counterclaims for declaratory judgment” because it

(1) “did not fully set forth the construction of the deeds or the law on which [the court] based its

decision,” and (2) “did [not] fully or expressly declare the rights and obligations of the parties.”

Miller Lakes II, 2012-Ohio-5116, at ¶ 12. We specified that the court had not fully set forth its

construction of the deeds or law at issue because it had based its decision strictly upon the

conclusion that Miller Lakes, through its course of conduct, had waived its right to collect any

payments from the Defendants. Id. at ¶ 9. We noted that the foregoing determination did not

resolve the questions of whether (1) Miller Lakes had an obligation to perform the services at

issue in the case, and (2) the Defendants had a right to enjoy the benefits arising from those

services. Id.

       {¶13} With respect to fully or expressly declaring the rights and obligations of the

parties, this Court held in Miller II that the trial court’s declaration was ineffective because it

only pertained to Miller Lake Road. Id. at ¶ 10. We noted that the court had failed to address

obligations beyond the road, such as who bore the obligation to maintain, repair and/or replace

the drainage ditch and pipe at issue in the Schmitts’ counterclaim. Further, we held that the court

had not “expressly determine[d] the scope of the [Defendants’] rights to the ‘shared benefits,’ as

was requested in Miller Lakes’ complaint.” Id. at ¶ 11. We later specified that one of those

shared benefits was “access to the utilities maintained by Miller Lakes.” Id. at ¶ 15.

       {¶14} Upon review of the judgment entry at issue in this appeal, it is evident that the

trial court attempted to address the deficiencies noted by this Court in Miller II. The trial court

found that, per its Amended Declaration of Covenants, Conditions, and Restrictions for Miller
                                                 9


Lakes Development, Miller Lakes was obligated “to maintain the common property of [Miller

Lakes], including Miller Lake Road * * *, and the contiguous property, including the drainage

ditch and underground property on the north side of Miller Lake Road.” It further found that all

of the Defendants had access easements across Miller Lake Road in their deeds, but that, with

respect to any maintenance obligation, the Wighams’ and the Coopers’ deeds were silent and the

Schmitts’ deed contained unclear terms. Having found that the deeds were either silent or

unclear as to their terms, the court then looked to the conduct of the parties to determine their

respective obligations.

       {¶15} With regard to the Wighams and the Coopers, the court found that Miller Lakes

had never charged them for any repair or maintenance to Miller Lake Road, drainage ditches, or

utility lines. Meanwhile, Miller Lakes had enjoyed their “general upkeep [of] the surrounding

land on Miller Lake Road at no cost to Miller Lakes.” With regard to the Schmitts, the court also

found that Miller Lakes had never charged them for any repair or maintenance of Miller Lake

Road or “general maintenance to the surrounding area.” Meanwhile, Miller Lakes had enjoyed

their “general maintenance [of] the surrounding area” at no charge. The court noted that it was

not addressing utilities with respect to the Schmitts because their “utility service is separate from

the apparatus serving Miller Lakes, and Miller Lakes is not seeking any judgment regarding the

underlying utility lines from the Schmitts.” The court concluded that

       the [Defendants] maintain their rights of ingress and egress including fire and
       emergency response access and law enforcement access and protection. In
       addition, [the] Defendants are obligated to maintain the land surrounding Miller
       Lake Road consistent with the upkeep and maintenance performed on the land
       prior to this lawsuit. This is to include lawn maintenance, snow removal, leaf
       removal, and other such care and maintenance to the land to keep it in good
       condition at no cost to Miller Lakes. Miller Lakes is required to maintain and
       repair the portions of Miller Lake Road described in the Defendants[’] easements
       including the cost of widening the road * * *. Additionally, Miller Lakes will be
       responsible for the maintenance and repair of the drainage ditches next to the
                                                 10


       road, the underlying water and utility lines (for the Coopers and Wighams), and
       the repair of the road itself.

Additionally, the court concluded that, “[b]ased on the conduct of the parties, none of the parties

were unjustly enriched and none of the parties are obligated to pay for services already

performed.”

       {¶16} Although the trial court declared many of the obligations and rights of the parties,

we cannot conclude that the court expressly declared the full scope of Miller Lakes’ obligations

or “of the [Defendants’] rights to the ‘shared benefits,’ as was requested in Miller Lakes’

complaint.” Miller Lakes II, 2012-Ohio-5116, at ¶ 11. One of the areas that the Schmitts

claimed Miller Lakes had a duty to maintain was a “private roadway loop known as The Trees.”

Although the record contains some evidence that The Trees became the property of the Schmitts

at some point, the Schmitts’ counterclaim specifically alleges a duty on the part of Miller Lakes

to maintain The Trees. Indeed, the Schmitts brought a breach of contract counterclaim against

Miller Lakes on the basis that it had failed to maintain both Miller Lake Road and The Trees. In

seeking a declaratory judgment, the Schmitts asked the court to declare that Miller Lakes had a

duty to maintain Miller Lake Road “and related areas including but not limited to the drainage

ditch and pipe.” While the court expressly determined that Miller Lakes had a duty to maintain

Miller Lake Road and the drainage ditch, its entry failed to make any mention of The Trees. It

also failed to expressly declare that Miller Lakes was obligated to maintain the pipe referenced in

the Schmitts’ counterclaim.

       {¶17} With regard to the scope of the Defendants’ rights to the benefits and services

outlined in Miller Lakes’ complaint, the trial court’s entry largely focused on expressing the

obligations of the parties. The court did not specify whether the parties had the reciprocal right

to enjoy the benefit or service at issue. For instance, the trial court found that Miller Lakes had a
                                                  11


duty to maintain and repair the underlying water and utility lines with respect to the Coopers and

the Wighams,2 but never expressly declared that the Defendants had the right to “access [] the

utilities maintained by Miller Lakes.”       Miller Lakes II at ¶ 15.    In seeking a declaratory

judgment, Miller Lakes specifically described the Defendants as receiving benefits or services in

the form of access to and use of the water lines, access to and use of the sewer lines (except the

Schmitts), access to and use of the water hydrants, access to and use of the utilities, and “any

other benefits provided by the common properties at Miller Lakes.” The court’s 2013 judgment

entry does not expressly declare “the scope of the [Defendants’] rights to the ‘shared benefits,’ as

was requested in Miller Lakes’ complaint.” Id. at ¶ 11.

       {¶18} In sum, the trial court’s 2013 judgment entry “was ineffective in resolving the

claim and counterclaims for declaratory judgment, as it did not * * * fully or expressly declare

the rights and obligations of the parties.” Id. at ¶ 12.

Inextricably Intertwined Claims

       {¶19} At the conclusion of its 2013 judgment entry, the trial court acknowledged that

the parties also maintained claims of unjust enrichment, quantum meruit, and damages. It further

acknowledged that those additional claims were intertwined with the claims for declaratory

relief. See id. at ¶ 15-16. The court held that, based on its declaratory judgment decision, “the

rights and obligations of each of the parties effectively terminate the intertwined claims. These

claims are now moot.” The court then dismissed those claims and concluded that “there is no

just reason for delay.”


2
  The trial court did not determine whether Miller Lakes had any obligation to maintain or repair
any of the Schmitts’ utilities because it found that the Schmitts had a separate utility service and
that Miller Lakes was not “seeking any judgment regarding the underlying utility lines from the
Schmitts.” We note that Miller Lakes only ever conceded in its complaint that the Schmitts used
a separate sewer system.
                                                 12


       {¶20} In regard to a judgment upon multiple claims or in cases involving multiple

parties, Civ.R. 54(B), provides, in relevant part:

       When more than one claim for relief is presented in an action whether as a claim,
       counterclaim, cross-claim, or third-party claim, and whether arising out of the
       same or separate transactions, or when multiple parties are involved, the court
       may enter final judgment as to one or more but fewer than all of the claims or
       parties only upon an express determination that there is no just reason for delay.

“Notwithstanding the trial court’s employment of the language that ‘there is no just cause for

delay,’ this Court will not review judgments that fail to determine claims that are ‘inextricably

intertwined’ with the claim(s) upon which the trial court has purported to issue final judgment.”

Miller Lakes II at ¶ 14, quoting Miller Lakes I, 2011-Ohio-1295, at ¶ 19.

       {¶21} As discussed above, the 2013 judgment entry

       did not expressly determine the [full] scope of Miller Lakes’ obligations or the
       rights of the homeowners to enjoy the benefits arising from such obligations. As
       Miller Lakes’ claims for unjust enrichment and quantum meruit were dependent
       upon the Appellees’ rights to utilize the “shared benefits” as set forth in its
       complaint, including access to the utilities maintained by Miller Lakes, the claims
       for unjust enrichment and quantum meruit were intertwined with the
       determination of the scope of the benefits to which Appellees had a right to enjoy.

(Emphasis sic.) Miller Lakes II at ¶ 15. Accordingly, the trial court’s use of Civ.R. 54(B)

language in its entry was ineffectual to create an immediately appealable order with regard to the

unjust enrichment and quantum meruit claims. See id. at ¶ 15-17.

       {¶22} The breadth of the trial court’s 2013 judgment entry is also unclear to this Court.

The trial court described the parties’ intertwined claims as “claims of unjust enrichment,

quantum meruit and damages” and concluded those claims were moot. (Emphasis added.) The

Schmitts, in particular, alleged more than one claim for damages. Specifically, they sought

damages    on    their   counterclaims    for   breach   of   contract   and   quasi-contract/unjust

enrichment/quantum meruit. While the trial court discussed the latter counterclaim, it did not
                                                13


discuss the Schmitts’ counterclaim for breach of contract; a counterclaim upon which Miller

Lakes moved for summary judgment. On the one hand, the trial court held that the parties’

claims for damages were moot. On the other hand, it failed to state whether it was either

granting or denying Miller Lakes’ motion for summary judgment on any of the Schmitts’

counterclaims.

       {¶23} As set forth above, the Schmitts’ breach of contract counterclaim sought damages

based on Miller Lakes’ failure to maintain both Miller Lakes Road and “the private roadway

loop known as The Trees.” The trial court did not address The Trees in its judgment entry. To

ascertain the Schmitts’ entitlement to damages on their breach of contract counterclaim, it would

have been necessary for the court to expressly declare the scope of Miller Lakes’ obligation to

maintain, repair, and/or replace both Miller Lake Road and The Trees. Thus, the viability of the

Schmitts’ counterclaim for breach of contract was dependent upon an express determination of

Miller Lakes’ obligations with respect to both Miller Lake Road and The Trees.

       {¶24} “[B]ased upon the dependency of the above claims and counterclaims on the

express declaration of the parties[’] rights and obligations, the Civ.R. 54(B) language was

ineffectual to create an immediately appealable order when the claims and counterclaim

remained pending.” Miller Lakes II, 2012-Ohio-5116, at ¶ 17.

                                                III.

       {¶25} Miller Lakes has not appealed from a final, appealable order. Accordingly, the

appeal is dismissed for lack of jurisdiction.

                                                                              Appeal dismissed.
                                                14


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



BELFANCE, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

JAMES M. RICHARD, Attorney at Law, for Appellant.

TIMOTHY B. PETTORINI, Attorney at Law, for Appellees.

ROBERT J. REYNOLDS, Attorney at Law, for Appellees.

ROBERT D. KEHOE, Attorney at Law, for Appellees.
