[Cite as Lipchak v. Chevington Woods Civic Assn., Inc., 2015-Ohio-263.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                             JUDGES:
MELISSA R. LIPCHAK, ET AL                            :       Hon. William B. Hoffman, P.J.
                                                     :       Hon. W. Scott Gwin, J.
                     Plaintiffs-Appellants           :       Hon. Sheila G. Farmer, J.
                                                     :
-vs-                                                 :
                                                     :       Case No. 14-CA-40
CHEVINGTON WOODS CIVIC                               :
ASSOCIATION, INC., ET AL                             :
                                                     :       OPINION
                  Defendants-Appellees




CHARACTER OF PROCEEDING:                                 Civil Appeal from the Fairfield County Court
                                                         of Common Pleas, Case No. 2011 CV 881

JUDGMENT:                                                Affirmed




DATE OF JUDGMENT ENTRY:                                  January 20, 2015


APPEARANCES:



For Plaintiffs-Appellants                                For Defendants-Appellees

MELISSA R. LIPCHAK                                       R. GARY WINTERS
7658 Slate Ridge Blvd.                                   IAN R. SMITH
Reynoldsburg, OH 43068                                   632 Vine Street, Ste. 900
                                                         Cincinnati, OH 45202

GAIL M. ZALIMENI                                         TIMOTHY R. RANKIN
P.O. Box 223                                             266 North Fourth Street, Suite 100
Albany, OH 45710                                         Columbus, OH 43215
[Cite as Lipchak v. Chevington Woods Civic Assn., Inc., 2015-Ohio-263.]


Gwin, J.,

        {¶1}    On May 13, 1996, appellants Melissa Lipchak (“Lipchak”) and Oron

Schuss (“Schuss”) purchased a home in a subdivision known as Chevington Woods

North, Section 2 (“Section 2”). On September 2, 2011, appellants filed a declaratory

judgment action seeking a declaration that they were not required to be members of the

homeowner’s association, appellee Chevington Woods Civic Association, Inc.

(“Association”).       On November 1, 2011, the Association filed an answer and

counterclaim, seeking unpaid dues, interest, attorney fees, and costs. On September

14, 2012, appellants amended their complaint to add a claim against the Association for

defamation. On November 21, 2012, the trial court granted appellee’s motion to dismiss

appellants’ defamation claim.

        {¶2}    Both parties filed motions for summary judgment, which the trial court

initially denied on February 12, 2013.               On April 10, 2013, the trial court granted

appellants’ motion to file a second amended complaint over appellee’s objection.

Appellants filed their amended complaint on April 19, 2013, which added all of the other

homeowners residing in Section 2 as defendants. The Association filed an answer and

amended counterclaim on May 3, 2013. The parties again filed motions for summary

judgment in December of 2013 and January of 2014.

        {¶3}    On January 13, 2014, appellants filed a new action asserting a Marketable

Title Act theory of recovery and filed a motion to stay this case pending resolution of the

new action. On January 30, 2014, the trial court denied appellants’ motion to stay this

case pending resolution of the newly-filed case.                  On February 6, 2014, appellants

voluntarily dismissed the new action. On February 10, 2014, appellants filed a motion
Fairfield County, Case No. 14-CA-40                                               3


to amend the complaint in the instant case for a third time in order to include a

Marketable Title Act theory of recovery.

      {¶4}   In a judgment entry filed on March 5, 2014, the trial court denied

appellants’ motion for summary judgment and granted summary judgment to appellee

on its counterclaim and on appellants’ complaint. A damages hearing on counterclaim

damages was held on April 25, 2014.        On May 14, 2014, the trial court awarded

appellee $8,185.74 in damages for unpaid dues, filing fees, and attorney fees.

      {¶5}   Appellants appeal the judgment entries of the Fairfield County Court of

Common Pleas and assign the following as error:

      {¶6}   “I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE

CWCA’S MOTION FOR SUMMARY JUDGMENT AND DENYING APPELLANTS’

MOTION FOR SUMMARY JUDGMENT BY CONCLUDING, AS A MATTER OF LAW,

THAT APPELLANTS WERE REQUIRED TO BE MEMBERS OF CWCA.

      {¶7}   "II.   THE   TRIAL   COURT     ERRED     IN   GRANTING      DEFENDANT-

APPELLEE’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS-

APPELLANTS’ MOTION FOR SUMMARY JUDGMENT BY CONCLUDING, AS A

MATTER OF LAW, THAT THE DEED TO NORTH 2 SHOULD BE REFORMED WHEN

DEFENDANT-APPELLEE          DID    NOT     PROVE   THAT     IT WAS     ENTITLED TO

REFORMATION BY CLEAR AND CONVINCING EVIDENCE.

      {¶8}   "III. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-

APPELLEE’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF-

APPELLANTS’ MOTION FOR SUMMARY JUDGMENT BY CONCLUDING, AS A

MATTER OF LAW, THAT DEFENDANT-APPELLEE HAS VALID BYLAWS.
Fairfield County, Case No. 14-CA-40                                      4


      {¶9}   "IV. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-

APPELLEE’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF-

APPELLANTS’ MOTION FOR SUMMARY JUDGMENT BY CONCLUDING, AS A

MATTER OF LAW, THAT PLAINTIFFS-APPELLANTS ARE REQUIRED TO PAY ANY

DUES OR SPECIAL ASSESSMENTS TO DEFENDANT UNDER THE BYLAWS.

      {¶10} "V. THE     TRIAL   COURT   ERRED   IN   GRANTING   DEFENDANT-

APPELLEE’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF-

APPELLANTS’ MOTION FOR SUMMARY JUDGMENT BY CONCLUDING, AS A

MATTER OF LAW, THAT PLAINTIFFS-APPELLANTS ARE REQUIRED TO PAY THE

$30.00. PLAINTIFFS-APPELLANTS ARE NOT REQUIRED TO PAY ANY SPECIAL

ASSESSMENTS AS THE BYLAWS WERE NOT PROPERLY AMENDED IN

OCTOBER OF 2007.

      {¶11} "VI. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-

APPELLEE’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF-

APPELLANTS’ MOTION FOR SUMMARY JUDGMENT BY CONCLUDING, AS A

MATTER OF LAW, THAT PLAINTIFFS-APPELLANTS ARE REQUIRED TO PAY THE

$30.00 SPECIAL ASSESSMENT AFTER 2010.

      {¶12} "VII. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

PLAINTIFFS-APPELLANTS’ MOTION FOR LEAVE, IN THE ALTERNATIVE, TO FILE

A SUPPLEMENTAL COMPLAINT, LEAVE TO FILE A THIRD AMENDED COMPLAINT,

TO AMEND PLAINTIFFS’ REPLY TO COUNTERCLAIM, OR TO HAVE A

DETERMINATION MADE THAT THE PLEADINGS IN THIS MATTER ARE FAIR

NOTICE OF A CLAIM UNDER THE MARKETABLE TITLE ACT.
Fairfield County, Case No. 14-CA-40                                                 5


      {¶13} "VIII.   THE    TRIAL      COURT   ERRED    IN   AWARDING      DAMAGES,

ATTORNEY FEES, COSTS, AND INTEREST TO DEFENDANT-APPELLEE.

      {¶14} "IX. THE TRIAL COURT ERRED IN DISMISSING ALL DEFENDANTS ON

THE BASIS THAT THE ISSUES AGAINST THEM WERE MOOT.

      {¶15} "X. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING

THAT ALL HOMEOWNERS IN NORTH 2 SHOULD BE JOINED AS PARTIES.”

      {¶16} This matter is before this Court for review on a summary judgment

decision. The trial court found in favor of the Association on its counterclaim and on

appellants’ second amended complaint. The second amended complaint filed April 19,

2013, prayed for declaratory judgment as follows:

             WHEREFORE, Plaintiffs, Melissa R. Lipchak and Oron E. Schuss,

      respectfully request that a Declaratory Judgment be entered that the lot

      owners of the subdivision, Chevington Woods North, Section No. 2, are

      not required to be members of the Chevington Woods Civic Association,

      Inc., a nonprofit corporation.

             In the alternative, Plaintiffs, for their Second Claim, respectfully

      request that a Declaratory Judgment be entered declaring that a property

      owner agrees to and shall be a member of and be subject to the

      obligations and duly enacted by-laws and rules of the Chevington Civic

      Association, a nonprofit corporation and/or Chevington Woods Civic

      Association, Inc., a nonprofit corporation, be found to have been waived

      and/or abandoned and unenforceable and Plaintiffs are not required to be

      members;
Fairfield County, Case No. 14-CA-40                                                    6


              Further, Plaintiffs, Oron E. Schuss and Melissa R. Lipchak, also

       respectfully request that this Court enter judgment for them against

       Defendant, Chevington Woods Civic Association, Inc., for their costs,

       expenses, and attorney fees incurred herein.

       {¶17} The Association’s amended counterclaim filed May 3, 2013, was a claim

for unjust enrichment and monetary damages for past and present membership dues,

pre- and post-judgment interest, costs, expenses, and attorney fees pursuant to R.C.

5312.13.

       {¶18} Although appellants list ten assignments of error, we find they can be

resolved in five collective discussions of the facts and law sub judice.

       {¶19} This matter was heard under a summary judgment standard with the

parties arguing no genuine issues of material fact existed and they were entitled to

judgment as a matter of law. Only Assignment of Error VIII involves issues of fact, i.e.,

damages claimed, but, at the damages hearing, appellants did not object to the

damages testimony nor object to the matter being tried to the court.

       {¶20} Summary judgment motions are to be resolved in light of the dictates of

Civil Rule 56. Civil Rule 56 was reaffirmed by the Supreme Court of Ohio in State ex

rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211, 663 N.E.2d 639:

       Civ.R. 56(C) provides that before summary judgment may be granted, it

       must be determined that (1) no genuine issue as to any material fact

       remains to be litigated, (2) the moving party is entitled to judgment as a

       matter of law, and (3) it appears from the evidence that reasonable minds

       can come to but one conclusion, and viewing such evidence most strongly
Fairfield County, Case No. 14-CA-40                                                    7


      in favor of the nonmoving party, that conclusion is adverse to the party

      against whom the motion for summary judgment is made.

Id., citing State ex rel. Parsons v. Fleming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377

(1994).

      {¶21} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

St.3d 35, 506 N.E.2d 212 (1987).

                                      I., II., III., IV., V., VI.

      {¶22} Appellants claim the trial court erred in granting summary judgment to the

Association and erred in denying their request for declaratory relief. Appellants contend

the trial court erred in finding they were required to be members of the Association, and

finding they were subject to the dues and special assessment provisions of the bylaws

and regulations of the Association.

      {¶23} The parties agree to the material facts and the documents (deeds)

presented.   There are three separately plated developments bearing the titles of

Chevington Woods, Chevington Woods North, and Chevington Woods North, Section 2.

      {¶24} Lots 1 through 159 located in Chevington Woods were deeded via quit-

claim deed from George Ankney, Jr. to C&G Development, Inc. on June 25, 1968,

recorded on June 26, 1968. The deed contained covenants which the grantee could

modify, but did not contain any mention of a homeowner’s association. On December

11, 1971, C&G Development, Inc. modified the covenants to provide for a homeowner’s

association listed as “Chevington Woods Civic Association.”
Fairfield County, Case No. 14-CA-40                                                   8


      {¶25} Lots 1 thorough 98 located in Chevington Woods North were deeded via

quit-claim deed from Mildred Fishbaugh, Trustee to C&G Development, Inc. on March 1,

1972, recorded on March 2, 1972. The deed contained covenants which the grantee

could modify, and included a homeowner’s association listed as “Chevington Woods

North Civic Association.”

      {¶26} Appellants own Lot Number 128 in Section 2 and took title in 1996. This

lot was part of a group of lots (numbers 99 through 226) deeded via warranty deed from

Mildred Fishbaugh, Trustee to C&G Development, Inc. on December 7, 1972, recorded

on December 8, 1972. The deed contained covenants which the grantee could modify,

and included a homeowner’s association listed as “Chevington Civic Association.”

      {¶27} On March 8, 1973, C&G Development, Inc. modified the homeowner’s

association name in Chevington Woods North to “Chevington Woods Civic Association,

Inc.” and included all the lot owners in the Chevington Woods subdivision. Also on

March 8, 1973, C&G Development, Inc. modified the homeowner’s association name in

Chevington Woods to “Chevington Woods Civic Association, Inc.,” and included all the

lot owners in the Chevington Woods North subdivision.

      {¶28} The Articles of Incorporation for “Chevington Woods Civic Association,

Inc.” were filed on March 1, 1973. At the time, there were no lot owners in Section 2.

Although the Articles of Incorporation were cancelled by the Secretary of State on June

24, 1991, they were reinstated on November 13, 2002.

      {¶29} In the transfer of appellants’ lot, Lot 128 in Section 2, their survivorship

deed from Gary and Peggy Garrett identifies the property “as the same numbered and

delineated upon the recorded plat thereof, of record in Plat Book 10, page 61,
Fairfield County, Case No. 14-CA-40                                                     9


Recorder’s Office, Fairfield County, Ohio.” The survivorship deed was recorded on

June 6, 1996, and there are no references to deed covenants/restrictions.

      {¶30} The current bylaws of the Association provide in part: “Membership in this

Association is assumed by the land owner(s) of each improved lot in Chevington Woods

Subdivision. Improved lot defines a lot on which has been construed a single family

residence.” We note the bylaws are in compliance with R.C. Chapter 5312, et seq.

      {¶31} It is the Association’s position that the omission of the word “Woods” in the

December 1972 covenants for Section 2 was a scrivener’s error and should be

corrected because of the passage of forty years, the uniformity among the deeds for the

subdivisions, the understanding of all the residents in each of the three subdivisions,

and the origin form a single grantor, C&G Development, Inc.          We agree with the

Association.

      {¶32} “Ordinary rules of contract construction are used to construe a restrictive

covenant * * * [t]hus, covenants should be construed with the parties’ intent.” Dillingham

v. Do, 12th Dist. Butler Nos. CA2002-01-004, CA 2002-01-017, 2002-Ohio-3349. The

language in the covenant “should be given its common, ordinary meaning in light of the

circumstances surrounding the creation of the covenant.” Id. “Restrictive covenants

should be construed to effect the purpose for which they were intended.” Id.

      {¶33} There are five requirements for the creation of an enforceable restriction

on the use of land by covenant. Id. These requirements are as follows:

      First, the restrictions must be a part of the general subdivision plan,

      applicable to all lots in the subdivision. Second, lot purchasers must be

      given adequate notice of the restriction. Third, the restrictions must be in
Fairfield County, Case No. 14-CA-40                                                   10


      accord with public policy, and they are unenforceable to the extent that

      they are not.    Fourth, the restriction cannot be implied, but must be

      express. Fifth, the restrictions must run with the land, and therefore must

      be inserted in the form of covenants in the owner’s chain of title.

      Otherwise, subsequent purchasers are not bound.

Id., quoting Maasen v. Zopff, 12th Dist. Warren Nos. 98-10-135, 98-10-138, 98-12-153,

1999 WL 552747 (July 26, 1999).

      {¶34} In this case, the deed restrictions apply to all of appellants’ neighbors and

are part of the general subdivision plan, the deed restrictions are in accord with public

policy, and the deed language is express as it states it runs with the land. With regards

to adequate notice of the restriction, Schuss testified that the realtor they utilized in

purchasing the lot who was a long-term resident of the neighborhood, told them about

the deed restrictions, though the realtor said restrictions such as those regarding tool

sheds and RV’s in driveways were frequently ignored or were not enforceable after the

passage of a long period of time. Schuss stated they first saw the deeds with the deed

restrictions “before we purchased the home, before we made an offer, sometime in

1996 or 1997.” Schuss testified he did attend association meetings from time to time

and paid dues for 2005 and 2006. Lipchak confirmed that when she purchased the

property, she was notified by the realtor that there were deed restrictions.        Thus,

appellants had adequate notice of the restrictions.

      {¶35} Apart from the lack of the word “Woods” in the homeowner’s association’s

title for Section 2, all of the five requirements are satisfied by the evidence.     The

Association contends this was a scrivener’s error and thus the 1972 deed should be
Fairfield County, Case No. 14-CA-40                                                     11


corrected. Black’s Law Dictionary defines “scrivener’s error” as a synonym for “clerical

error.” A “clerical error” is one “resulting from a minor mistake or inadvertence, esp. in

writing or copying something on the record, and not from judicial reasoning or

determination.” Black’s Law Dictionary 18(c) (9th ed. 2009). Examples of clerical or

“scrivener’s” errors include: “omitting an appendix from a document, typing an incorrect

number, mistranscribing a word, and failing to log a call.” Id.

       {¶36} Edward Laramee (“Laramee”), involved with the Association as a trustee

and an officer since moving into Section 2 in 1979, testified as follows:

       Q. There is no Chevington Civic Association; is that correct?

       A. If I want to say Chevington Woods Civic Association, Chevington Civic

       Association, or the lack of including that - - the Woods, to me, you could

       call it scrivener’s – what is the term, scrivener’s error? I’m not sure if I’m

       quoting that exactly properly at this point in time, again, looking back.

       Laramee Deposition page 49-50.

       {¶37} Laramee stated the issue about the difference in the names of the

Association was discussed in 1999, but he did not recall the outcome. As a resident of

Section 2 since 1979, Laramee considered himself a member of the Association, and

was both a trustee and an officer.

       {¶38} Appellants’ own testimony and actions reflect that their understanding was

the Association is the “association” listed in their deed. Lipchak testified that she does

not believe the entity of “Chevington Civic Association” exists. Schuss confirmed that

appellants paid dues to the Association in April of 2005 and October of 2006 and,

though Lipchak characterized the payments as “charitable contributions,” she confirmed
Fairfield County, Case No. 14-CA-40                                                    12


the checks were “payment – they went with a payment of invoices” from the

Association. Appellants disregarded any assessments after 2006, but attended some

meetings, the last one in January of 2007.

      {¶39} In addition to the testimony of Laramee, Lipchak, Schuss, and the actions

of appellants themselves, based upon the evidence of the uniformity of the deeds for

the subdivisions except for the “Woods” omission, the fact that the Association has been

the one and only civic association in the Chevington Woods subdivisions for forty years,

and the stated purpose in the Articles of Incorporation to “promote the general welfare

of the people who reside in the Chevington Woods Subdivisions,” we find the

Association has met their burden to demonstrate the unintentional omission of the word

“Woods” was a scrivener’s error. Accordingly, we find that the scrivener’s or clerical

error omitting the term “Woods” from the deed restriction does not excuse appellants

from membership in the Association. The trial court did not err in finding appellants

were bound by the Association’s rules and regulations and were members of the

Association.

      {¶40} Appellants also argue the trial court erred in finding the bylaws of the

Association are valid.     The Planned Community Law required existing owners

associations and nonprofit corporations such as the Association to file and record its

bylaws within 180 days of the effective date of the law and stated what the declaration

and bylaws should contain, such as the election of the board. R.C. 5312.02. In this

case, the bylaws were timely filed and recorded as required by R.C. 5312. We further

find the bylaws are in compliance with Chapter 5312, et seq. Article III, Section 1 of the

bylaws states that, “[d]ues as determined by a vote of a majority of Trustees and
Fairfield County, Case No. 14-CA-40                                                     13


Officers in attendance at the first meeting of the new administration in June shall be

assessed each on each membership as classified in Article II, Section 1” (land owners

of each improved lot). Accordingly, the Association has valid bylaws stating appellants,

as land owners of an improved lot, owe dues.

       {¶41} Appellants argue the trial court erred in granting summary judgment as to

the special assessments because the bylaws were not properly amended in October of

2007. We disagree. Article III, Section 7 of the bylaws provides that, “[t]he Board of

Trustees shall have the power to appeal to the association membership for special dues

assessments in the event of emergency conditions requiring expenditures of funds not

available in the association treasury.” Pursuant to the minutes of the October 2007

association meeting, the secretary introduced a resolution from the trustees, pursuant to

Article III, Section 7 of the bylaws, requesting a special dues assessment for legal fees

and other financial obligations of the Association. The resolution passed. Accordingly,

the bylaws were not improperly amended.

       {¶42} Appellants further argue that, based upon the total funds the Association

had at the end of 2010, the legal fees should have been paid off by the special

assessment. However, the resolution passed at the October 2007 meeting was for

“legal fees currently due and owing” and “other financial obligation of the Association.”

Appellants failed to set forth evidence that the legal fees and other financial obligations

of the Association as set forth in the resolution were actually paid off in 2010.

       {¶43} Upon review, we find the trial court did not err in granting summary

judgment to the Association on its counterclaim and on appellants’ complaint.

Assignments of Error I, II, III, IV, V, and VI are overruled.
Fairfield County, Case No. 14-CA-40                                                        14


                                                VII.

       {¶44} Appellants argue the trial court abused its discretion when it denied their

motion for leave to file a third amended complaint or file a supplemental complaint to

add a Marketable Title Act theory of recovery. We disagree.

       {¶45} Civil Rule 15(A) provides that a party may amend its pleading “only by

leave of court or by written consent of the adverse party” when the opposing party has

already filed its responsive pleading in the case. An appellate court reviews a trial

court’s decision on a motion for leave to file an amended pleading under an abuse of

discretion standard. Wilmington Steel Products, Inc. v. Cleveland Electric Illuminating

Co., 60 Ohio St.3d 120, 573 N.E.2d 622 (1991). An abuse of discretion connotes more

than a mere error in judgment; it signifies an attitude on the part of the trial court that is

unreasonable, arbitrary, or unconscionable. State v. Myers, 97 Ohio St.3d 335, 2002-

Ohio-6658, 780 N.E.2d 186. While Civil Rule 15(A) allows for liberal amendment, the

trial court does not abuse its discretion if it denies a motion to amend pleadings if there

is a showing of bad faith, undue delay, or undue prejudice to the opposing party.

Hoover v. Sumlin, 12 Ohio St.3d 1, 465 N.E.2d 377 (1984).

       {¶46} In this case, the trial court had already permitted appellants to file two

amended complaints. By the time appellants filed the motion for leave to amend in

February of 2014, this case had been pending for over two years, discovery was

completed, both parties had filed their motions for summary judgment, a non-oral

hearing on the motions for summary judgment was set for ten days after the motion to

amend was filed, and the second deadline to amend the pleadings had expired on

September 14, 2012. Further, appellants filed their motion to amend only after their
Fairfield County, Case No. 14-CA-40                                                    15


motion to stay this case based on a new complaint filed for violations of the Marketable

Title Act was denied and their new case was voluntarily dismissed. Accordingly, due to

the potential undue prejudice to the opposing party and the undue delay in filing the

motion, the trial court did not abuse its discretion in denying appellants’ motion to

amend complaint.

      {¶47} Appellants also argue the trial court abused its discretion in denying its

motion to file a supplemental complaint adding the Marketable Title Act cause of action.

      {¶48} Civil Rule 15(E) vests broad discretion in the trial court in allowing parties

to amend their pleadings and provides that a trial court may “upon reasonable notice

and upon such terms as are just, permit [a party] to serve a supplemental pleading

setting forth transactions or occurrences or events which have happened since the date

of the pleading sought to be supplemented.” A trial court’s decision whether to grant

leave to file a supplemental pleading will not be disturbed on appeal absent an abuse of

discretion. Civil Rule 15(E); Mork v. Waltco Truck Equipment Co., 70 Ohio App.3d 458,

591 N.E.2d 379 (9th Dist. 1990). Under Civil Rule 15(E), a supplemental pleading is a

mere addition to or a continuation of the original complaint and cannot be used to raise

new and different causes of action. Gilson v. Windows and Doors Showcase, LLC, 6th

Dist. Fulton Nos. F-05-017, F-05-024, 2006-Ohio-292.

      {¶49} As noted above, appellants’ motion for leave to file supplemental

complaint was filed after discovery had been completed, after the parties had filed their

motions for summary judgment, and only after appellants’ motion to stay this case

pursuant to a newly-filed case asserting the Marketable Title Act theory of recovery was

denied. Further, appellants’ supplemental pleading is more than a mere addition to, or
Fairfield County, Case No. 14-CA-40                                                     16


continuation of, the original complaint and sets forth a new and different cause of action.

Thus, under these circumstances, the trial court did not abuse its discretion in denying

appellants’ motion to file a supplemental complaint.

      {¶50} Appellants’ Assignment of Error VII is overruled.

                                              VIII.

      {¶51} Appellants incorporate their previous arguments and contend since they

are not required to be members of the Association, they are not required to pay dues

and Chapter 5312 regarding attorney fees is not applicable to them. Based upon our

resolution of Assignments of Error I – VI that appellants are required to be members of

the Association pursuant to the bylaws, appellants are required to pay dues and

Chapter 5312, authorizing an award of attorney fees and costs, is applicable to them.

Appellants did not contest the amount for unpaid dues. Further, at an April 25, 2014

damages hearing, while appellants objected to the fact that attorney fees were due

since they were not required to be members of the Association, they stipulated to the

reasonableness of attorney fees in the amount of $7,625.74. Accordingly, appellants’

Assignment of Error VIII is overruled.

                                               IX.

      {¶52} Appellants incorporate their foregoing arguments and contend that since

the trial court erred in finding that appellants were required to be members of the

Association and required to pay dues, the trial court also erred in dismissing the

defendants other than the Association on the basis that the issues against them were

moot. Based upon our disposition of Assignments of Error I – VI, we overrule this

assignment of error.
Fairfield County, Case No. 14-CA-40                                                      17


                                                 X.

       {¶53} Appellants claim the trial court erred in finding all the homeowners in

Section 2 had to be joined as parties. We disagree.

       {¶54} Civil Rule 19 governs joinder of persons needed for just adjudication. Civil

Rule 19(A) provides, in pertinent part:

       A person who is subject to service of process shall be joined as a party in

       the action if * * * (2) he claims an interest relating to the subject of the

       action and is so situated that the disposition of the action in his absence

       may * * * (b) leave any of the persons already parties subject to a

       substantial risk of incurring double, multiple, or otherwise inconsistent

       obligations by reason of his claimed interest.

       {¶55} On April 13, 2013, the trial court granted appellants’ March 25, 2013

request for leave to file an amended complaint to add the other homeowners in Section

2. Appellants sought to amend their complaint after the Association filed a March 15,

2013 motion challenging the trial court’s jurisdiction without the additional parties.

       {¶56} In their amended complaint filed on April 19, 2013, appellants sought

declaratory relief, seeking to absolve themselves from participation in the Association.

In doing so, they challenged the Association’s right to force them to obey deed

covenants or restrictions and pay dues and assessments. Their premise was that all

the homeowners in Section 2 were not required to be members in the Association. As

such, they challenged the right or privilege of membership in the Association for all

homeowners in Section 2, thereby affecting the rights of those homeowners and the
Fairfield County, Case No. 14-CA-40                                                      18


Association’s right to collect dues and assessments from them. Accordingly, we find no

error in the joining of the additional homeowners. Assignment of Error X is overruled.

      {¶57} Based upon the foregoing, appellants’ assignments of error are overruled

and the judgment entries of the Fairfield County Court of Common Pleas are affirmed.

By Gwin, J., and

Hoffman, P.J., concur

Farmer, J., dissents
Fairfield County, Case No. 14-CA-40                                                      19

Farmer, J., dissents

         {¶58} I respectfully dissent from the majority's resolution of Assignments of Error

I through VI and Assignment of Error VIII.

         {¶59} From my review of the record, I conclude there is insufficient evidence to

support the finding of a "scrivener's error."

         {¶60} It is axiomatic that the party who asserts a proposition i.e., scrivener's

error, bears the burden of proof to establish the issue. As explained by this court in

Dornbirer v. Conrad, 5th Dist. Perry No. 99-CA-26, 2000 WL 1751264, *2 (Nov. 20,

2000):



               Reformation of an instrument based on mutual mistake is permitted

         only where there is clear proof that the parties to the instrument made the

         same mistake and that both parties understood the instrument as the party

         seeking reformation alleges it ought to have been.       See Snedegar v.

         Midwestern Indemn. Co. (1988), 44 Ohio App.3d 64, 69.            The party

         alleging mutual mistake has the burden of proving its existence by clear

         and convincing evidence. Castle v. Daniels (1984), 16 Ohio App.3d 209.



         {¶61} The sole testimony to a scrivener's error was provided by Mr. Laramee

who was not a property owner at the time of the claimed error in 1972 as he had

purchased his property in 1979.        Therefore, he lacks personal knowledge of any

claimed scrivener's error. The Association did not present any evidence on the claimed
Fairfield County, Case No. 14-CA-40                                                  20


error from an original grantor of the three original deeds, plats, and subsequent

amendments.

       {¶62} Further, when the Chevington Woods and Chevington Woods North

homeowner's associations were modified in 1973, Section 2 was specifically omitted.

As cited by the majority in ¶ 30, the current bylaws of the Association provide in part:

"Membership in this Association is assumed by the land owner(s) of each improved lot

in Chevington Woods Subdivision."       Appellants argue the Association declared as

"Chevington Woods Subdivision" does not support the Association's claim of a

scrivener's error because the Association used the singular word "Subdivision" as

opposed to the plural "Subdivisions."

       {¶63} Although the Association seeks to bootstrap its claim that it represents

Section 2, the evidence is less than minimal to support this argument. Mr. Laramee's

affirmation and belief as to "that was how it was done," is insufficient to support the

Association's position.

       {¶1}   I would grant Assignments of Error I through VI. The inescapable fact is

that although Section 2 has deed covenants/restrictions within the chain of title, the

covenants are not to the Association, "Chevington Woods Civic Association, Inc.," but to

a nonexistent entity, "Chevington Civic Association."

       {¶64} In Assignment of Error VIII, the majority affirms the award of grossly

exaggerated fees involved in the collection of the outstanding dues. The trial court

awarded the Association $8,185.74, $430.00 of which amounted to the unpaid dues. A

review of the record demonstrates that appellants never contested the amount of the

unpaid dues or that they were sent a statement of the amount owed. They challenged
Fairfield County, Case No. 14-CA-40                                                     21


the Association's right to collect dues from Section 2 residents. As a result, a great deal

of the depositional testimony centered upon the loss of the original Articles of

Incorporation and bylaws, the loss of the Secretary of State's compliance certificate, and

the justification of the Association's very existence.   It appears at times during the

Association's various annual meetings, there was insufficient representation to satisfy a

quorum.

      {¶65} By a "scrivener's error" as the majority accepts, the Association bootstraps

a collection fee of $7,755.74 on a $430.00 debt. In fact, most of the Association's legal

maneuvers were an effort to justify its own existence.

      {¶66} I would grant Assignment of Error VIII and deny the award for

counterclaim filing fees and attorney fees.




                                                ________________________________
                                                HON. SHEILA G. FARMER
