[Cite as Koslowski v. Co-Moor Townhouse Idlewood S. Condominium #5 Assn. Inc., 2012-Ohio-3254.]


                Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                      No. 97508



                                 RUTH KOSLOWSKI
                                                        PLAINTIFF-APPELLEE

                                                  vs.

        CO-MOOR TOWNHOUSE IDLEWOOD SOUTH
          CONDOMINIUM #5 ASSOCIATION, INC.
                                                        DEFENDANT-APPELLANT




                                         JUDGMENT:
                                          AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CV-699983

        BEFORE:         Celebrezze, J., Stewart, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                        July 19, 2012
ATTORNEYS FOR APPELLANT

Joseph F. Salzgeber
Arthur E. Foth, Jr.
Foth & Foth Co., L.P.A.
11221 Pearl Road
Strongsville, Ohio 44136


ATTORNEY FOR APPELLEE

Leonard A. Spremulli
29325 Chagrin Boulevard
Suite 305
Pepper Pike, Ohio 44122
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Appellant, Co-Moor Townhouse Idlewood South Condominium #5

Association, Inc. (the “Association”), brings the instant appeal to the trial court’s order

declaring the Association responsible to stabilize the concrete slab floor under the

condominium unit of appellee, Ruth Koslowski. After a thorough review of the record

and pertinent law, we affirm the trial court’s decision.

                             I. Factual and Procedural History

       {¶2} Koslowski purchased a condominium unit from a private seller in Co-Moor

Townhouse Idlewood South Condominium #5 in Strongsville, Ohio, in 2005.                The

property is part of a condominium association according to the deed record and the

Declaration of Condominium Ownership (“Condo Declaration”) contained within.

Koslowski’s unit is a single-story structure situated at the end of a common structure and

is the only unit situated on the problematic concrete slab. The property disclosure form

provided by the seller stated that the concrete slab the unit rests on had previously been

repaired in 1994 after settling had occurred in the kitchen area. Koslowski’s home

inspection also noted this repair.

       {¶3} After about a year, Koslowski noticed several cracks developing in the walls

in the living room of her unit.      She notified the Association of the issues and an

inspection was done, but no other action was taken at that time. By 2008, the settling
problems had worsened, and several large cracks developed in various interior walls of

the unit. Also, some doors would not close because the openings had shifted out of

plumb. Koslowski notified the Association of these additional issues, but they denied

responsibility for repairs.

         {¶4} Koslowski and the Association had several more inspections performed, and

the cause of the settling was discovered. Apparently, when the unit was constructed, the

soil used as fill under the concrete slab contained a high percentage of organic material

that was decomposing and causing settling of portions of the slab. The foundation of the

unit was dug deeper than the problem soil, so the unit was not in any danger of collapse,

but the sinking slab caused interior walls to shift and crack.

         {¶5} Koslowski filed suit on July 29, 2009, against the Association for negligence

and sought declaratory judgment. The Association denied responsibility for the repairs,

citing the disclosure of the foundation issues in the residential property disclosure form

and a provision in the Condo Declaration dealing with maintenance of limited common

areas.

         {¶6} On November 19, 2010, Koslowski dismissed her negligence claim, and with

it her jury demand, and a bench trial began on the declaratory judgment action. On

December 1, 2010, the trial court issued a lengthy and well-reasoned opinion finding that

the Association was responsible for the repairs necessary to stabilize the slab. After

some procedural irregularities, the trial court issued a corrected opinion on October 11,
2011, and the Association then filed the instant appeal raising two errors, which will be

addressed out of order:

       I. The trial court erred by determining that the defendant condominium
       association was required to maintain, repair, and replace the slab floor of
       plaintiff’s condominium unit property, where plaintiff was made aware of
       the deficiencies or defects in the slab floor before purchasing the
       condominium unit property and, thus, the doctrine of caveat emptor
       precluded the plaintiff-purchaser from requiring the condominium
       association to repair or replace the slab floor.

       II. The trial court erred by interpreting the terms of the recorded
       declaration of condominium ownership to require that the defendant
       condominium association maintain, repair or replace the slab floor of
       plaintiff’s condominium unit.

                                   II. Law and Analysis

                                 A. Standard of Review

       {¶7} The Association argues that as a matter of contract interpretation, this court

should review the lower court’s decision de novo. Norris, L.L.C. v. Daney, 8th Dist. No.

94437, 2010-Ohio-5140, ¶ 14.       It has long been recognized that “[t]he granting or

denying of declaratory relief is a matter for judicial discretion * * *.” Bilyeu v. Motorists

Mut. Ins. Co., 36 Ohio St.2d 35, 303 N.E.2d 871 (1973), syllabus. This was reaffirmed

in Mid-Am. Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, 863

N.E.2d 142, ¶ 14. More recently, this court applied that standard in a case involving the

interpretation of a contract that included matters of formation and validity. Dawson Ins.,

Inc. v. Freund, 8th Dist. No. 94660, 2011-Ohio-1552, ¶ 19. However, the present issue

before this court is solely resolved as a matter of contract interpretation, generally

reviewed de novo as a question of law. Blue Heron Nurseries, L.L.C. v. Funk, 186
Ohio App.3d 769, 771, 2010-Ohio-876, 930 N.E.2d 824, 825, ¶ 5 (9th Dist.). “When

reviewing a matter de novo, this court does not give deference to the trial court’s

decision.” Id. at ¶ 5, citing Eagle v. Fred Martin Motor Co., 157 Ohio App.3d 150,

2004-Ohio-829, 809 N.E.2d 1161, ¶ 11 (9th Dist.).

                         B. Duty to Repair Supporting Structure

       {¶8} Common areas are defined in Article VII of the Condo Declaration to include

all parts of the condominium property except the units and further specifically include:

       (a) All structural parts of the building including, without limitation,
       foundations, columns, joists, beams, supports, supporting walls, floors,
       ceiling and roofs;

       ***

       (e) All other parts of the condominium property necessary or convenient to
       its existence, maintenance and safety, or normally in common use, or which
       have been designated as common areas and facilities in the Drawings;

        ***

       (g) The limited common areas and facilities hereinafter described * * *.

       {¶9} Article VIII of the Condo Declaration defines limited common areas as:

       (a) the yard or yards, entry and courtyard, patio, patio courtyard, and
       driveway, to which such unit has immediate access from within the
       boundaries of such unit, and

       (b) all other of the common areas and facilities as may be located within the
       boundaries of such unit which are intended for the exclusive service of the
       unit, the use and occupancy of which shall in each case be limited to such
       unit.

       {¶10} Under Article VIII(2), a unit owner has a duty to maintain certain limited

common areas, but that duty is limited to “the entry courtyard and patio courtyard which
are reserved for the use of [that] unit * * *,” but leaves it to the Association to maintain

the remainder of the limited common areas.

       {¶11} Finally, Article XI of the Condo Declaration delineates responsibilities for

care, maintenance, and repair of common areas. Section (3) states, “except as otherwise

provided herein or in the rules, the management, maintenance, repair and replacement of

the common areas and facilities shall be the responsibility of the association.” Section

(4) goes on to limit the Association’s responsibility:

       (a) the association, at its expense, shall be responsible for the maintenance,
       repair and replacement of those portions of the common areas and facilities
       located within the boundaries of the unit, excluding, however:

       (i) the interior surfaces of any walls, floors and ceilings; and

       (ii) other portions of the common areas and facilities within its boundaries
       the maintenance, repair or replacement of which may be the responsibility
       of a unit under any other provision of this Declaration.

       {¶12} Section (4)(b) then sets forth a number of things a unit owner is responsible

for, including: “(ii) to maintain, repair and replace at his expense such portions of any

limited common areas and facilities licensed, granted or otherwise assigned to such

owner, as the association shall from time to time determine * * *.”

       {¶13} The Association argues that the slab floor is not a part of the foundation,

which it acknowledges it is responsible for. But, it is a supporting structure, something it

is also responsible for under Article VII(a). The soil, the problem in this case, is not a

limited common area or the responsibility of Koslowski to maintain or repair. Regarding

the concrete slab, Section (b) of this article is arguably applicable, but it limits its scope to
those common areas within a unit. Koslowski’s unit ends at the interior surface of the

floor. Article VI defines a unit as “the space enclosed within the undecorated interior

surfaces of its perimeter walls, floors and ceilings * * *.” Therefore, all but the interior

surface of the concrete slab is the responsibility of the Association.

       {¶14} Koslowski’s expert report indicates that “[r]eplacement of the slab alone

will not resolve the problem since the problem lies within the supporting soil underneath.

Replacement of the apparent soft, highly compressible soil under the slab is also

necessary to provide adequate slab subgrade support.”

       {¶15} As the trial court correctly noted:

       It is clear from the evidence that the soil under the slab must be replaced
       and the slab either repaired, re-supported, or replaced in order to prevent
       further damage to Mrs. Koslowski’s unit. That is the responsibility of the
       Association. If the settling problem can be corrected and the slab repaired
       without replacing it, [Koslowski] may then be obliged to repair the interior
       surface of the floor.

       {¶16} The trial court properly analyzed the Condo Declaration and arrived at the

same conclusion as this court — that the Association is responsible to repair or replace

the soil, and if they can do so without replacing the concrete slab, Koslowski may be

required to patch the interior surface of the slab as a limited common area under the

Condo Declaration.      Koslowski’s responsibility ends at the interior surface of the

concrete slab.

       {¶17} The Association’s second assignment of error is overruled.

                          C. Duty to Repair and Caveat Emptor
       {¶18} The Association claims that prior notice of foundation issues precludes

Koslowski from obtaining declaratory judgment in this matter. This argument is wholly

without merit.

       {¶19} “A condominium owners’ association has the statutory duty to repair and

maintain the common areas on the condominium property.”                Wolf v. S.W. Place

Condominium Assn., 7th Dist. No. 01CA93, 2002-Ohio-5195, ¶ 13, citing R.C.

5311.04(F); R.C. 5311.14(A); Behm v. Victory Lane Unit Owners’ Assn., Inc., 133 Ohio

App.3d 484, 487, 728 N.E.2d 1093 (1st. Dist.1999). The Condo Declaration that sets

forth the rights and responsibilities of the Association and individual unit owners is a

contract between the two. Acacia on the Green Condominium Assn., Inc. v. Gottlieb, 8th

Dist. No. 92145, 2009-Ohio-4878, ¶ 20. Therefore, actions against a condominium

association such as this could be both statutory and contractual in nature.

       {¶20} Caveat emptor precludes recovery in an action concerning a defect in real

estate where “(1) the condition complained of is open to observation or discoverable upon

reasonable inspection, (2) the purchaser had unimpeded opportunity to examine the

premises, and (3) there is no fraud on the part of the vendor.” Layman v. Binns, 35 Ohio

St.3d 176, 519 N.E.2d 642 (1988), syllabus. Prior notice of a past repair to the slab

does not change the rights and responsibilities of the parties flowing from the Condo

Declaration. These are covenants that run with the land and are binding on successive

owners.
       {¶21} The Association relies on an unreported Texas case, Buttross V., Inc. v.

Victoria   Square    Condominium       Homeowners’       Assn.,   Inc.,   Tex.Civ.App.   No.

03-09-00526-CV, 2010 WL 3271957 (Aug. 18, 2010), for the proposition that caveat

emptor applies to the present situation, but that case is readily distinguishable.

       {¶22} The buyer in Buttross purchased several condominium units with full

knowledge of a defective roof and water damage to the units.              The condominium

association involved was actively attempting repairs to the roof. The buyer sued the

association for breach of contract for damages allegedly sustained to the units after

purchase as a result of the leaking roof. If the condominium association had argued that

it had no duty to fix the roofs in question, then the cases would be similar. However, it

did not. The condominium association was trying to repair the roof leaks that had

resulted from hail damage and were exacerbated by a new defective roof installed by a

contractor hired by the condominium association. The condominium association still had

a duty to repair the common roof, and no one argued otherwise. The knowledge the

buyer had in Buttross regarding the defective roof prevented recovery from the

association and the contractor for damages suffered to the units themselves because the

damage sustained prior to purchase could not be parsed out separately from that sustained

after purchase, and the condominium units were already discounted to account for water

damage.

       {¶23} Here, Koslowski is not asking for compensation for damages sustained to

her unit. She is asking the Association to abide by its Condo Declaration and fix the
common area it is required to fix under Article XI. The doctrine of caveat emptor does

not change the duties of the Association under its contract with condominium owners.1

It is the responsibility of the Association to care for, maintain, and repair structural

elements of the units, and that duty is not shifted by disclosure of a repair of the slab

under the kitchen that occurred in 1994.

       {¶24} Caveat emptor has no bearing on the responsibilities of the parties in this

case. The Association’s first assignment of error is overruled.

                                          III. Conclusion

       {¶25} The Condo Declaration places the burden on the Association to care for,

maintain, and repair the common areas, including the soil and slab supporting

Koslowski’s condominium unit.            The Association has no basis to avoid the repairs

Koslowski has requested.

       {¶26} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.




          This is assuming the doubtful proposition that the doctrine even applies to a third party such
       1


as the Association where the contract for sale was between Koslowski and the prior owner of the unit.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
