[Cite as Assured Admin., L.L.C. v. Young, 2019-Ohio-3953.]




                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




 ASSURED ADMINISTRATION, LLC,                          :
 et al.,
                                                       :     CASE NO. CA2019-04-039
        Appellants,
                                                       :          OPINION
                                                                   9/30/2019
     - vs -                                            :

                                                       :
 THOMAS YOUNG, et al.,
                                                       :
        Appellees.




         CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                            Case No. 17CV089876


George M. Parker, 11935 Mason Montgomery Road, Cincinnati, Ohio 45249, for appellant,
Assured Administration, LLC

Joseph Pflum, 205 West Fourth Street, Textile Building, Suite 1280, Cincinnati, Ohio 45202,
for appellee, Thomas Young

Cooper & Elliott LLC, Jeffrey T. Kenney, 2175 Riverside Drive, Columbus, Ohio 43221, for
appellee, Greens of Kings Meadows Homeowners Association

Bruns, Connell, Vollmar & Armstrong, LLC, Thomas B. Bruns, 4750 Ashwood Drive, Suite
200, Cincinnati, Ohio 45241, for appellee, Bethany Sarchet

Garvey Shearer Nordstrom, PSC, John J. Garvey III, 2400 Chamber Center Drive, Suite
210, Ft. Mitchell, Kentucky 41017, for appellee, Marc Davis

Helmer, Martins, Rice & Popham, Co., LPA, Paul B. Martins, 600 Vine Street, Suite 2704,
Cincinnati, Ohio 45202, for appellee, Steve Yeoman
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        S. POWELL, J.

        {¶ 1} Appellant, Assured Administration, LLC ("Assured"), appeals the decision of

the Warren County Court of Common Pleas granting summary judgment to appellees, The

Greens of Kings Meadows Homeowners Association, and its individual officers, Marc Davis,

Bethany Sarchet, Steve Yeoman, and Thomas Young (collectively, the "HOA"). Assured

also appeals the trial court's decision ordering it to pay the HOA's attorney fees. For the

reasons outlined below, we affirm the trial court's decision.1

                                              The Parties

        {¶ 2} Assured is the developer of the property making up The Greens of Kings

Meadows subdivision. The subdivision is located in Kings Meadows, Warren County, Ohio.

In December 2006, Assured drafted, executed, and thereafter recorded the subdivision's

declaration of covenants, conditions, restrictions, liens, and reservation of easements

("DOC") with the Warren County Recorder's Office. Pursuant to DOC Section 2.2(B)(ii),

Assured served as both the subdivision's developer and the subdivision's homeowners

association (controlling 95% of the association's total voting power) for the next ten years.

Then, in December 2016, control of the subdivision's homeowners association transitioned

to the subdivision's property owners: Young as the president, Sarchet as the secretary,

Yeoman as the treasurer, and Davis as the chairman of the association's design review

committee ("DRC").

                                   Facts and Procedural History

        {¶ 3} On March 7, 2017, Assured submitted building plans to the HOA (specifically,

the DRC) requesting the HOA approve the construction of a single-family home on the

subdivision's lone remaining unsold lot, Lot 13. There is no dispute that Lot 13 was owned



1. Pursuant to Loc.R. (6)(A), we sua sponte remove this appeal from the accelerated calendar for the purpose
of issuing this opinion.
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by Assured. There is also no dispute that the home Assured wanted to build on Lot 13 was

below the minimum size requirements set forth in the subdivision's design review guidelines

("DRG") and contained a nonconforming front facing garage. Due to these irregularities,

the HOA denied Assured's request to build a home on Lot 13 according to the building plans

Assured had submitted to the HOA. The HOA issued this decision in accordance with the

authority granted to it by the DOC and the DRG as set forth below.

        {¶ 4} On April 19, 2018, Assured filed a complaint against the HOA alleging claims

of negligence and tortious interference with a contract.2 In support of these claims, Assured

argued that the HOA had acted negligently and interfered with the contract between itself

and a home buyer who had agreed to purchase a home on Lot 13 matching the building

plans outlined above. According to Assured, the HOA accomplished this by "representing

[to the buyer] that [Assured] had not complied with the requirements" of the subdivision's

DOC. Assured alternatively requested the trial court issue a declaratory judgment finding

the terms of the subdivision's DOC provided Assured, as the developer, sole discretion in

how it wished to build a home on Lot 13. This includes building a home below the minimum

size requirements set forth in the subdivision's DRG and with a nonconforming front facing

garage.

        {¶ 5} As noted by the trial court, Assured's claims call into question the proper

interpretation of Sections 2.3, 8.1, 8.2, 8,4, and 12.6 of the DOC, and Sections II and III of

the DRG.3 These sections state, in pertinent part, the following:

                                            DOC Section 2.3

                Administration by Association. Subject to the rights retained by
                Developer pursuant to this Declaration, the ownership,

2. We note that the complaint Assured filed on April 19, 2018 was its fourth amended complaint having already
filed an original complaint on June 5, 2017, followed by a first amended complaint on July 11, 2017, a second
amended complaint on February 6, 2018, and a third amended complaint on February 21, 2018.

3. The DRG is an attached exhibit to the DOC that is incorporated by reference therein.
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operation and maintenance of the Common Property and of the
administration and enforcement of this Declaration shall be by
the Association in accordance with the terms and provisions of
this Declaration.
                       DOC Section 8.1

Architectural Control. No building, fence, wall or other structure
shall be commenced, erected or maintained upon the Property,
nor shall any exterior addition or change (including any change
in color) or alteration thereof be made, until a detailed set of
plans and specifications is submitted to and approved by the
Board. Notwithstanding the foregoing (1) initial construction of
Dwelling Units and improvements by a Builder shall be under
the exclusive control of the Developer as provided in Section
8.4, below and (2) until all Dwelling units are built (i) the right of
architectural control shall be vested in the Developer, and (ii) all
references in this Section 8.1. to the Board shall be deemed to
mean the Developer.

                         DOC Section 8.2

Enforcement. In the event of a violation of the provisions of this
Article 8, the Association shall have the right to enforce this
Article by any proceedings authorized in this Declaration, the
By-Laws, or by law. In the event that the Association fails to
enforce the provisions of this Article 8, the Developer shall have
the right to enforce this Article upon prior written notice to the
Association.

                         DOC Section 8.4

Approval of Plans by Developer. Each Builder, prior to initial
construction of a Dwelling Unit and/or accessory structures on
a Lot shall deliver its plans and specifications to the Developer
of such plans and specifications (as defined by Section 8.1,
above) for approval under the Design Review Guidelines
attached as Exhibit C.          Such approval of plans and
specifications by Developer shall be conducted in the same
manner and in the same time frame as set forth in Section 8.1,
above. Developer shall have all legal and equitable remedies
available under this Declaration to enforce their decision against
Builders, Owners, or their successors.

                        DOC Section 12.6

Enforcement. The Association shall have the right to enforce
these covenants and restrictions. In the event that the
Association fails to enforce these covenants and restrictions,
the Developer shall have the right to enforce these covenants

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                                                                     Warren CA2019-04-039

              and restrictions upon prior written notice to the Association. * *
              * In the event of a violation of the provisions of the Articles or
              By-Laws, the Association shall have the right to enforce any
              covenant or restrictions by proceedings authorized in this
              Declaration, the Articles, By-Laws or by law.

                                       DRG Section II

              Design Review Committee

              The Declarant shall be the design review committee
              (hereinafter, the "DRC") and will review plans and specifications
              for homes to assure that the best decisions are made regarding
              sitting, materials, colors, building heights, driveway layout and
              location, landscaping and other matters which are proper to
              allow for the harmony among Dwelling Units and other
              Structures, landscaping and drainage on the Property, in order
              to protect property values of the Property.

                                      DRG Section III

              Site Consideration

              The DRC has complete authority to deny approval of a Structure
              on a Lot if it reasonably determines that the size, scale or
              character of the Structure is incompatible with the Lot or with
              neighboring Structures.

       {¶ 6} Upon receiving Assured's complaint, the HOA filed an answer and

counterclaims against Assured. As part of its counterclaims, the HOA requested the trial

court issue a declaratory judgment contrary to the declaratory judgment requested by

Assured; i.e., a declaratory judgment finding the terms of the DOC did not provide Assured

with the sole discretion in how it wished to build a home on the subdivision's Lot 13. After

filing competing motions for summary judgment, the trial court granted summary judgment

to the HOA. The trial court also ordered Assured to pay the HOA's attorney fees. The trial

court's decision, however, left remaining the HOA's counterclaims against Assured. The

trial court issued this decision on February 1, 2019.

       {¶ 7} In granting the HOA's motion for summary judgment, the trial court rejected

Assured's claim that the terms of the DOC plainly and unambiguously granted it, as the

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                                                                    Warren CA2019-04-039

developer, sole discretion on how it wished to build a home on the subdivision's Lot 13.

Specifically, the trial court found the terms set forth in the DOC were ambiguous because

Assured, as the developer, "cannot have sole discretion [in how it wished to build a home

on Lot 13] yet also give the enforcement authority to the HOA." The trial court found this to

be the case upon finding "[i]t makes no sense" that Assured would have submitted its design

plans to the HOA for approval "if the DOC and the [DRG] are clear that [Assured] has sole

discretion to approve the design plans."

       {¶ 8} On February 28, 2019, Assured moved the trial court to reconsider its

decision, or in the alternative, to include Civ.R. 54(B) language in its decision to allow for

an immediate appeal. Pursuant to Civ.R. 54(B):

              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.

       {¶ 9} On April 5, 2019, the trial court issued an agreed entry that entered a final

judgment to the HOA in regard to the parties' competing requests for a declaratory

judgment. As part of that agreed entry, the trial court included language expressly finding

that "there is no just reason for delay" of an appeal from its decision granting the HOA's

motion for summary judgment and order requiring Assured to pay the HOA's attorney fees.

                                           Appeal

       {¶ 10} Assured now appeals the trial court's decision, raising the following single

assignment of error for review.

       {¶ 11} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN

GRANTING       APPELLEES          SUMMARY     JUDGMENT        ON     THEIR    CLAIM      FOR

DECLARATORY JUDGMENT AND IN DENYING APPELLANT SUMMARY JUDGMENT

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                                                                   Warren CA2019-04-039

ON ITS CLAIM FOR DECLARATORY JUDGMENT.

       {¶ 12} In its single assignment of error, Assured argues the trial court erred by

granting summary judgment to the HOA. Assured also argues the trial court erred by

ordering it to pay the HOA's attorney fees. Finding no merit to either of Assured's claims,

the trial court's decision is affirmed.

                                      Summary Judgment

       {¶ 13} Assured initially argues that the trial court erred by granting summary

judgment to the HOA on its declaratory judgment claim. We disagree.

       {¶ 14} "Summary judgment is a procedural device used to terminate litigation when

there are no issues in a case requiring a formal trial." Franchas Holdings, LLC v. Dameron,

12th Dist. Clermont No. CA2015-09-073, 2016-Ohio-878, ¶ 16, citing Roberts v. RMB Ents.,

Inc., 197 Ohio App.3d 435, 2011-Ohio-6223, ¶ 6 (12th Dist.). Pursuant to Civ.R. 56, a trial

court may grant summary judgment only when (1) there is no genuine issue of any material

fact, (2) the moving party is entitled to judgment as a matter of law, and (3) the evidence

submitted can only lead reasonable minds to a conclusion that is adverse to the nonmoving

party. BAC Home Loans Servicing, L.P. v. Kolenich, 194 Ohio App.3d 777, 2011-Ohio-

3345, ¶ 17 (12th Dist.). In determining whether a genuine issue of material fact exists, the

evidence must be construed in favor of the nonmoving party. Vanderbilt v. Pier 27, L.L.C.,

12th Dist. Butler No. CA2013-02-029, 2013-Ohio-5205, ¶ 8.

       {¶ 15} A trial court's decision granting summary judgment is reviewed de novo.

Moody v. Pilot Travel Ctrs., LLC, 12th Dist. Butler No. CA2011-07-141, 2012-Ohio-1478, ¶

7, citing Burgess v. Tackas, 125 Ohio App.3d 294, 296 (8th Dist.1998). "De novo review

means that this court uses the same standard that the trial court should have used, and we

examine the evidence to determine whether as a matter of law no genuine issues exist for

trial." Morris v. Dobbins Nursing Home, 12th Dist. Clermont No. CA2010-12-102, 2011-

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                                                                     Warren CA2019-04-039

Ohio-3014, ¶ 14. Summary judgment is therefore proper "if there are no genuine issues of

material fact to be litigated, the moving party is entitled to judgment as a matter of law, and

reasonable minds can come to only one conclusion, and that conclusion is adverse to the

nonmoving party." Lloyd v. Ernst, 12th Dist. Warren No. CA2018-05-058, 2019-Ohio-756,

¶ 15, citing Civ.R. 56(C); and Williams v. McFarland Properties, LLC, 177 Ohio App.3d 490,

2008-Ohio-3594, ¶ 7 (12th Dist.).

       {¶ 16} Assured claims the trial court erred by granting summary judgment to the HOA

because it misinterpreted the otherwise plain and unambiguous language found in the

subdivision's DOC and corresponding DRG. Specifically, Assured argues the trial court

erred by finding the language contained within the DOC and DRG did not clearly and

unambiguously provide it with the sole authority to approve initial building plans and designs

regardless of the HOA's objections. Assured's claim is based on the interpretation of the

DOC and the DRG incorporated by reference therein.

       {¶ 17} A declaration, such as the DOC in this case, is a contract. Lisy v. Mayfair

Estates Homeowners Assn., 12th Dist. Summit No. 25392, 2012-Ohio-68, 2012-Ohio-68, ¶

29. "In construing the terms of a written contract, the primary objective is to give effect to

the intent of the parties, which we presume rests in the language that they have chosen to

employ." In re All Kelley & Ferraro Asbestos Cases, 104 Ohio St.3d 605, 2004-Ohio-7104,

¶ 29. "Where the terms of the contract are clear and unambiguous, a court need not go

beyond the plain language of the agreement to determine the rights and obligations of the

parties." State ex rel. Lee v. Plain City, 12th Dist. Madison No. CA2017-01-002, 2017-Ohio-

8931, ¶ 21 citing Aultman Hosp. Assn. v. Community Mut. Ins. Co., 46 Ohio St. 3d 51, 55

(1989). That is to say "[a] contract that is, by its terms, clear and unambiguous requires no

interpretation or construction and will be given the effect called for by the plain language of

the contract." Cooper v. Chateau Estate Homes, L.L.C., 12th Dist. Warren No. CA2012-

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07-061, 2010-Ohio-5186, ¶ 12. This court reviews issues of contract interpretation de novo.

Pierce Point Cinema 10, LLC v. Perin-Tyler Family Found., LLC, 12th Dist. Clermont No.

CA2012-02-014, 2012-Ohio-5008, ¶ 10.

        {¶ 18} After a full and thorough review of the record, we agree with the trial court's

decision finding the DOC ambiguous as to whether it is Assured or the HOA who has the

authority to approve building plans for the construction of homes located within the

subdivision. This is because, as noted by the trial court, Assured, as the developer, "cannot

have sole discretion [in how it wished to build a home on Lot 13] yet also give the

enforcement authority to the HOA." "The construction of a contract should attempt to

harmonize all the provisions of the document rather than to produce conflict in them." R.L.R.

Invs., LLC v. Wilmington Horsemens Group, LLC, 12th Dist. Clinton No. CA2013-09-017,

2014-Ohio-4757, ¶ 20 Therefore, when construing the relevant sections found in the DOC,

we agree with the trial court's decision finding it was HOA who has the authority to approve

building plans for the construction of homes located within the subdivision. This, as the trial

court found, makes sense when considering there would have been no reason for Assured

to submit its building plans to the HOA if it had the sole discretion to approve those plans

on its own.4

        {¶ 19} Despite this, Assured argues this court's decision in O'Bannon Meadows

Homeowners Assn. v. O'Bannon Props., LLC, 12th Dist. Clermont No. CA2012-10-073,

2013-Ohio-2395, mandates this case be reversed and remanded to the trial court.

However, unlike in this case, the declaration of covenants at issue in O'Bannon did not give



4. We note that Assured claims for the first time on appeal that it did not submit its building plans to the HOA
for approval but rather to give the HOA notice "of the approval and the existence of a contract with third party
buyers." However, while this court reviews a trial court's decision granting summary judgment de novo,
Assured cannot raise new arguments for the first time on appeal. See Estes v. Robbins Lumber, LLC, 12th
Dist. Clermont No. CA2016-02-011, 2016-Ohio-8231, ¶ 24 ("parties are not given a second chance to raise
arguments that they should have raised below").
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the homeowners' association the authority to enforce its design review guidelines after

control of the association was transitioned from the developer to the subdivision's home

owners. Id. at ¶ 23 (passage of control from the developer to the homeowners' association

did not grant the homeowners' association "the authority to amend or enforce" the

subdivision's design review guidelines but only "the right to regulate and control itself").

Therefore, because the facts in O'Bannon are distinguishable from the case at bar, this

court's holding in O'Bannon that "[w]here the [declaration of covenants] does not provide

the [homeowners' association] with specific power or authority to act or regulate, the

[homeowners' association] may not act or seek to regulate on its own accord" is

inapplicable. Id. at ¶ 24. Accordingly, contrary to Assured's claim, this court's decision in

O'Bannon does not mandate this case be reversed and remanded to the trial court.

                                       Attorney Fees

       {¶ 20} Assured also argues the trial court erred by ordering it to pay the HOA's

attorney fees. However, as the trial court found, Section 2.4 of the DOC and Section VII of

the DRG entitles the HOA to recover its attorney fees in defending against Assured's claims.

This remedy is specifically provided for in DRG Section VII, which, as relevant here, states

that the HOA "shall be entitled to recover damages, including attorney fees and litigation

expenses incurred" under these circumstances. Therefore, because the subdivision's DOC

and DRG allow the HOA to recover its attorney fees in this case, Assured's claim that the

trial court erred by ordering it to pay the HOA's attorney fees lacks merit.

                                        Conclusion

       {¶ 21} In light of the foregoing, having found no merit to any of the arguments raised

by Assured herein, Assured's single assignment of error challenging the trial court's

decision granting summary judgment to the HOA lacks merit and is overruled.



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                                               Warren CA2019-04-039

{¶ 22} Judgment affirmed.


HENDRICKSON, P.J., and RINGLAND, J., concur.




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