[Cite as Mitiwanga Park Co. v. Sablack, 2015-Ohio-3945.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


The Mitiwanga Park Company                                 Court of Appeals Nos. E-15-001
                                                                                 E-15-002
        Appellant                                                                E-15-003
                                                                                 E-15-004
v.                                                                               E-15-005

Dezso Sablack, et al.                                      Trial Court Nos. CVF 1300353
                                                                            CVF 1300354
        Appellees                                                           CVF 1300355
                                                                            CVF 1300356
                                                                            CVF 1300357

                                                           DECISION AND JUDGMENT

                                                           Decided: September 25, 2015

                                                *****

        Joseph E. DiBaggio and Robert E. Kmiecik, for appellant.

        Raymond V. Vasvari, Jr., for appellee Dezso Sablack.

        George C. Wilber, for appellees Connie Holland and Sandy
        Beach Apartments, Ltd.

                                                *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Mitiwanga Park Company appeals the November 25, 2014

judgment of the Vermilion Municipal Court which granted summary judgment in favor of
property owners Dezso Sablack, Connie Holland, and Sandy Beach Apartments, Ltd. on

its claims for funds it alleged were due for reasonable use and maintenance of common

areas of the development. Because we agree that no genuine issue of fact remains, we

affirm.

          {¶ 2} Mitiwanga Subdivision is located in Erie County, Ohio, on the shores of

Lake Erie. It was incorporated in 1915. Mitiwanga Park Company (“Mitiwanga”) is a

property owner’s association and its bylaws were incorporated on October 7, 1987.

Mitiwanga claims title to the common areas, i.e. property not owned by individual

owners, in the subdivision including the roads, park area, lakefront and beach.

          {¶ 3} In a prior action before this court, Mitiwanga claimed the right to enforce the

bylaws as to all lot owners based upon the contractual restrictions that it claimed the

property owners had constructive knowledge of when they purchased their property

(excluding those whose lot ownership predated the 1987 incorporation date.) Sandy

Beach Apt. Ltd. v. Mitiwanga Park Co., 6th Dist. Erie Nos. E-06-041, E-06-040, E-06-

042, 2008-Ohio-606. Reviewing the trial court’s award of summary judgment to

Mitiwanga, we found that the bylaws, by way of their inception, could not be considered

restrictive covenants that ran with the land. Id. at ¶ 36. We further held that Mitiwanga

was not entitled to reimbursement of the maintenance costs under a theory of unjust

enrichment. Specifically, we noted that “Mitiwanga proceeded, without an agreement, to

maintain the common areas and then attempted to force appellants to pay what

Mitiwanga determined to be their share of the cost * * * [a] finding of unjust enrichment




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under such circumstances would not be equitable and is contrary to law.” Id. at ¶ 43.

This court then reversed the summary judgment award and remanded the matter to the

trial court to declare the rights of the parties under the deeds. Id. at ¶ 46.

       {¶ 4} On remand, appellee Sablack and Mitiwanga entered a joint stipulation of

dismissal, with prejudice. As to appellees Holland and Sandy Beach, on June 28, 2010,

the trial court found that appellees, pursuant to an implied easement, had unrestricted use

of the streets, avenues, and parks. The court further noted that Holland and Sandy Beach,

as the owners of the dominant estate, had the responsibility to make the necessary repairs;

because Mitiwanga voluntarily made the repairs, it was not entitled to restitution under an

unjust enrichment theory. The court then concluded:

              [E]ven though the common law principle establishes the fact that

       Plaintiff is responsible for making repairs, Ohio case law recognizes that

       courts have properly determined the relative use of each party and

       apportioned the expenses incurred in maintaining and repairing the

       easement accordingly. There is nothing before this Court which denotes

       that a repair to any easement is necessary at this time. Moreover, it is true

       that Plaintiffs are not required to maintain the easement area to a level to be

       determined by the Defendant. However, since both parties jointly use the

       easements it would be only fair that Plaintiffs contribute their proportionate

       share, if repairs are necessary, to prevent the enjoyment of the easement

       from becoming an annoyance. With that stated, however, this does not




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       mean that the Defendant has the responsibility to determine when and how

       such expense should be established. Thus the Court determines that if and

       when repairs are necessary, Plaintiffs and the Defendant shall determine the

       relative use of each party and proportion the cost accordingly. Sandy

       Beach Apt. Ltd. v. Mitiwanga Park Co., Erie C.P. No. 2000-CV-454

       (June 28, 2010.)

No appeal was taken from the judgment.

       {¶ 5} On November 13, 2013, Mitiwanga commenced five small claims actions in

the Vermilion Municipal Court. Two actions named appellee Sablack and involved two

parcels of property and a claim to recover funds for the use and benefit of roadways and

services maintained by Mitiwanga during 2011. Three similar claims were filed against

appellee Holland and Sandy Beach Apartments (with Holland as the sole member of the

limited liability company.)

       {¶ 6} By motions of appellees, the court transferred the cases to the regular docket

of the Vermilion Municipal Court. On July 17, 2014, Sablack filed his motion for

summary judgment. Sablack argued that appellant was estopped from asserting its claims

based on this court’s 2008 decision. Specifically, Sablack argued that Mitiwanga’s

monetary claims for “reasonable use” of the roadways and common areas for 2011 was

barred by res judicata. Sablack further contended that Mitiwanga’s claims were preluded

whether or not they were based upon the same legal theories. Sablack asserted that he

was not legally required to pay the charges asserted in the case.




4.
       {¶ 7} On the same date, Holland and Sandy Beach filed motions for summary

judgment also arguing that the claims were barred by res judicata. The parties explained

that the cases involved the same parties and involved “a common nucleus of operative

facts,” thereby precluding relitigation.

       {¶ 8} In opposition, Mitiwanga argued that its claims were not based in contract or

under the theory of unjust enrichment which had previously been rejected by this court;

rather, it was seeking to enforce its rights under an implied easement. Mitiwanga claimed

that based upon the easement, appellees, by law, were required to pay their proportionate

share of the expenses. Relying on the language in the trial court’s 2010 decision,

Mitiwanga stated that appellees, as owners of the dominant estate, were required to make

certain repairs. Because they failed to do so Mitiwanga, as the owner of the servient

estate, was obligated to perform them and was entitled to reimbursement for the repairs it

undertook.

       {¶ 9} In response, the parties argued that no new legal theory was raised in

Mitiwanga’s case and that even considering it as a new claim because it could have been

raised in the previous action, Mitiwanga was estopped from raising it. Further as to

Sablack, he argued that he and Mitiwanga settled their dispute; thus, Sablack was not

bound to the lower court’s 2010 decision following remand. Appellees further argued

that unlike the dictates of the trial court’s prior decision, there had been no agreement

between the parties as to what repairs were necessary and how payment would be




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apportioned. Appellees asserted that Mitiwanga was not authorized to “unilaterally”

determine the repairs necessary and the costs and then bill appellees.

       {¶ 10} On November 25, 2014, the court granted appellees’ motions for summary

judgment. The court found:

              It is evident from the briefs and documents submitted to this court

       that the complaint filed herein is, in fact, the same claim previously

       litigated between the same parties in the Erie County Common Pleas Court.

       The only difference is the time frame for which Plaintiff asserts its claim.

       {¶ 11} The court then noted that appellees had not agreed to pay Mitiwanga’s

assessments and that:

              The Plaintiff has not established that the repairs were “necessary” or

       that the cost of the necessary repairs were then proportionally shared

       according to the “relative use of each party” as mandated by the Erie

       County Common Pleas Court. In fact the complaint is requesting judgment

       for “reasonable use” it does not even allege that 1. There were repairs,

       2. The repairs were necessary, or 3. Defendant’s share was proportionately

       shared according to use.

       {¶ 12} The court then concluded that “Plaintiff’s failure to satisfy the explicit

conditions precedent as required by the Erie County Common Pleas Court decision

precludes it from establishing its claim. The trial Court’s decision clearly does not allow

Plaintiff to simply charge a user fee.”




6.
       {¶ 13} This consolidated appeal followed with Mitiwanga raising four

assignments of error for our review:

              A. The trial court erred in granting defendants/appellees’ motion for

       summary judgment on grounds not asserted by appellees.

              B. The trial court erred in granting defendants/appellees’ motion for

       summary judgment on the basis that Plaintiff/Appellant’s complaint was

       defective as Plaintiff is not required to plead with specificity.

              C. The trial court erred in granting defendants/appellees’ motions

       for summary judgment where it considered issues not raised by the parties

       and failed to provide appellant with an opportunity to respond.

              D. The trial court erred in granting summary judgment where there

       remained genuine issues of material fact.

       {¶ 14} Appellant’s assignments of error are related and will be jointly addressed.

Initially, we note that review of the trial court’s grant of summary judgment is de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). A motion

for summary judgment should only be granted when there remains no genuine issue of

material fact and, when construing the evidence most strongly in favor of the nonmoving

party, reasonable minds can only conclude that the moving party is entitled to judgment

as a matter of law. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375

N.E.2d 46 (1978); Civ.R. 56(C).




7.
       {¶ 15} Mitiwanga initially argues that the trial court granted summary judgment

on grounds not asserted by appellees. Specifically, it contends that the court determined

that Mitiwanga failed to plead with specificity and that its claims for relief were

defective. Mitiwanga further contends that the court erred in granting summary judgment

on this basis, which was not raised by appellees, and erred by failing to provide

Mitiwanga an opportunity to respond.

       {¶ 16} Reviewing the prior proceedings and the record in the present matter, we

disagree with Mitiwanga’s interpretation of the trial court’s judgment. In its decision, the

court in making its determination that res judicata barred Mitiwanga’s claim for relief,

stated that Mitiwanga failed to comply with the express directive of the Erie County

Court of Common Pleas and that the claims were simply a repackaged attempt to force

appellees to pay for repairs it unilaterally undertook.

       {¶ 17} Mitiwanga further argues, generally, that the trial court erred in granting

summary judgment to appellees. Mitiwanga claims that genuine issues of fact remain

regarding appellees’ proportionate share of the costs of the repairs it made to the

“common law implied easement.” Mitiwanga contended that at trial it would have

provided evidence of the relative use and proportionate share of the repair costs

attributable to each party. Conversely, appellees argue that the implied easement theory

espoused by Mitiwanga fails to countermand this court’s explicit finding that appellees

have no obligation in law or equity to reimburse Mitiwanga for expenses related to repair

or upkeep of the common areas.




8.
       {¶ 18} We note that “[t]he doctrine of res judicata bars successive actions when a

valid, final judgment has been rendered upon the merits and an identity of parties or their

privies exists.” State v. Haney, 10th Dist. Franklin No. 99AP-159, 1999 WL 1054840

(Nov. 23, 1999), citing Ameigh v. Baycliffs Corp., 81 Ohio St.3d 247, 249, 690 N.E.2d

872 (1998). Moreover, “‘res judicata is applicable where an issue has been actually and

necessarily litigated and determined in a prior action.’” Id., quoting Ameigh. Further,

res judicata can act to bar an action that should have been brought in an earlier

proceeding. Grava v. Parkman Twp., 73 Ohio St.3d 379, 383, 653 N.E.2d 226 (1995).

       {¶ 19} As set forth above, in our February 15, 2008 decision and judgment we

specifically found that the bylaws enacted by Mitiwanga neither created a binding

contractual agreement nor created a right to equitable relief for their monetary claims.

Sandy Beach Apt. Ltd., 6th Dist. Erie Nos. E-06-041, E-06-040, E-06-042, 2008-Ohio-

606, at ¶ 35-43. Accord Cianciola v. Johnson’s Island Property Owners’ Assn., 6th Dist.

Ottawa No. OT-11-031, 2012-Ohio-5261.

       {¶ 20} Regarding the implied easement claim, an implied easement, as in this

case, may be created by reference to the subdivision plat. Gonzalez v. Graves, 2015-

Ohio-1791, 32 N.E.2d 1021, ¶ 28 (6th Dist.), citing Clagg v. Baycliffs Corp., 82 Ohio

St.3d 277, 281, 695 N.E.2d 728 (1998). Such easement entitles the owner of the

easement, the dominant estate, to a limited use of the land in which the interest exists, the

servient estate. Crane Hollow, Inc. v. Marathon Ashland Pipe Line, LLC, 138 Ohio

App.3d 57, 67, 740 N.E.2d 328 (4th Dist.2000). Generally, the dominant estate is




9.
responsible for repairs to the easement. Colace v. Wander, 5th Dist. Richland No. 2006

CA 0005, 2006-Ohio-7094, ¶ 62, citing National Exchange Bank v. Cunningham, 46

Ohio St. 575, 589, 22 N.E. 924 (1889). However, where repairs voluntarily undertaken

by the servient estate are “necessary” for, e.g., safety reasons, the expenses may be

apportioned by the relative use of each party. Market Ent., Inc. v. Summerville, 5th Dist.

Stark No. 2001CA00315, 2002-Ohio-3692, *2. This is in accord with the Erie County

Court of Common Pleas’ 2010 decision in this matter.

       {¶ 21} In its November 25, 2014 decision, the lower court found that the claims

were barred by res judicata because Mitiwanga failed to raise an issue of fact regarding

what repairs, if any, were undertaken and whether such repairs were necessary. Absent

such claims, there was no basis under which appellees could owe any sums related to the

easement. Further, Civ.R. 56(E) requires that a defending party “must set forth specific

facts showing that there is a genuine issue for trial. If the party does not so respond,

summary judgment, if appropriate, shall be entered against the party.” In Mitiwanga’s

opposition to summary judgment it claims that it is entitled to reimbursement for “efforts

to maintain” the easement area due to appellees’ failure to do so. We conclude that

vague assertions of maintenance and repair are not “specific facts” as contemplated under

the rule.

       {¶ 22} Accordingly, we find that the trial court’s basis and award of summary

judgment to appellees was not in error. Mitiwanga’s first, second, third, and fourth

assignments of error are not well-taken and are denied.




10.
       {¶ 23} On consideration whereof, we find that substantial justice was done the

party complaining and the judgment of the Vermilion Municipal Court is affirmed.

Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.


                                                                        Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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