[Cite as Heba El Attar v. Marine Towers E. Condominium owner's Assn., 2018-Ohio-3274.]


                Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 106140




                                    HEBA EL ATTAR, ET AL.

                                                         PLAINTIFFS-APPELLANTS

                                                   vs.

                          MARINE TOWERS EAST CONDOMINIUM
                            OWNERS’ ASSOCIATION, ET AL.

                                                         DEFENDANTS-APPELLEES




                                        JUDGMENT:
                                  REVERSED AND REMANDED



                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-16-873728

        BEFORE: Stewart, J., Kilbane, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: August 16, 2018
ATTORNEYS FOR APPELLANTS

Steven M. Ott
Lindsey A. Wrubel
Jacqueline Ann O’Brien
Ott & Associates, Co., L.P.A.
1300 East Ninth Street, Suite 1520
Cleveland, OH 44114

Jonathan J. Hartman
Midland Credit Management
P.O. Box 30968
Middleburg Heights, OH 44130


ATTORNEYS FOR APPELLEES

Katie Lynn Zorc
Andrew J. Dorman
Reminger Co., L.P.A.
101 Prospect Avenue, West, Suite 1400
Cleveland, OH 44115
MELODY J. STEWART, J.:

       {¶1} In the winter of 2015, there was unexpected damage to the heating, ventilation, and

cooling (“HVAC”) system at Marine Towers East Condominiums that rendered the system

unable to heat and cool some units. Marine Towers temporarily restored heat to the affected

units by providing space heaters that required installation of a dedicated electrical line. This

project cost approximately $200,000 and was paid for entirely by a special assessment imposed

on all unit owners.       Defendants-appellees Marine Towers East Condominium Owners’

Association, Inc. and its board of managers (the “Association”) subsequently learned that it

would cost more than $4 million to replace the HVAC system for the building housing its

condominium units. The Association did not have a reserve fund to pay for extraordinary

expenses, so it gave notice to its 137 unit owners that they would have to pay a special

assessment to cover the cost of repair.

       {¶2} Plaintiffs-appellants Heba El Attar, Dennis Grabowski, Dolores Mlachak, Kevin

McDowell, Claudia Gruchalla, and Robert Monahan, owners and titleholders of units at Marine

Towers, brought this action against the Association seeking a declaration of their duty to pay the

assessment, claiming that the Association was liable for breach of contract and claiming also that

the Association breached its fiduciary duty by failing to establish and maintain a reserve fund as

required by the terms of the association’s governing documents and R.C. Chapter 5311.         The

owners also sought injunctive relief to prevent the Association from collecting special

assessments and a declaratory judgment relating to reserve funds. The Association answered the

complaint and filed a motion for judgment on the pleadings arguing that the declaration did not

require it to establish a reserve fund and that the statutory duty to establish a reserve fund had

been waived by a majority of the owners who voted on an annual basis to pay for extraordinary
expenses by way of special assessment.       The trial court granted the motion without opinion,

stating only that the owners “can prove no set of facts in support of their claims that would entitle

them to relief.” The court dismissed the complaint in its entirety. The owners’ two assignments

of error collectively challenge the judgment. The owners claim that the trial court erred 1) by

granting the Association judgment on the pleadings and 2) in its interpretation of the

Association’s governing documents and R.C. 5311.081.

        {¶3} This case centers on the issue of whether the Association had the duty to establish a

reserve fund as alleged by the plaintiff-owners.

        {¶4} R.C. 5311.081(A) provides:

        Unless otherwise provided in the declaration or bylaws, the unit owners
        association, through the board of directors shall do both of the following:

        (1) Adopt and amend budgets for revenues, expenditures, and reserves in an
        amount adequate to repair and replace major capital items in the normal course of
        operations without the necessity of special assessments, provided that the amount
        set aside annually for reserves shall not be less than ten percent of the budget for
        that year unless the reserve requirement is waived annually by the unit owners
        exercising not less than a majority of the voting power of the unit owners
        association;

        (2) Collect assessments for common expenses from unit owners.

        {¶5} The statute requires a condominium association to include in its annual budget an

“adequate” amount for reserves — at least ten percent of the total budget — to ensure that major

capital items can be repaired and replaced without the need of special assessments. The statute,

however, provides a mechanism to vote around this requirement: so long as a majority of unit

owners annually vote to do so, they may waive the reserve fund requirement for that particular

year.
         {¶6} By its own terms, R.C. 5311.081(A) applies only to instances where a

condominium’s declaration or bylaws do not “otherwise provide[ ]” for reserves. In such cases,

the statute operates as a gap-filling provision to address reserve requirements when an

association’s bylaws or other governing documents do not. The statute would also serve to

establish a statutory baseline for what would constitute a reasonable reserve under the

circumstances. But where an association’s declaration or bylaws specifically contemplate the

establishment of a reserve fund, the statute does not apply.

         {¶7} The “Declaration of Condominium Ownership for Marine Towers East

Condominium” and the “By-Laws of Marine Towers East Condominium Owners’ Association,

Inc.” are the condominium’s governing documents.1                  Article V, Section 3 of the bylaws, titled

“Reserve for Contingencies and Replacement,” provides:

         The Association shall build up and maintain a reasonable reserve for
         contingencies and replacement. Extraordinary expenditures not originally
         included in the annual estimate which may be necessary for the year, shall be
         charged first against such reserve.

         {¶8} Further, Article V, Section 2 of the bylaws requires that the Association include

reserve funding as part of the “estimated cash requirement” to be assessed against each unit

owner as part of the annual budget:

         [E]ach year * * * the Association shall estimate the total amount necessary to pay
         the cost of wages, materials, insurance, services and supplies which will be
         required during the ensuing calendar year for the rendering of all services,
         together with a reasonable amount considered by the Association to be necessary
         for a reserve for contingencies and replacements * * *.




         1
            In their arguments, the parties refer to the “declaration” as the governing document that appears to be a
collective reference to both the declaration and the bylaws. The content to which they refer, however, is located
entirely in the bylaws. This clarification does not impact our analysis.
       {¶9} “Condominium declarations and bylaws are contracts between the association and

the purchaser and are subject to the traditional rules of contract interpretation.” Grand Arcade,

Ltd. v. Grand Arcade Condominium Owners’ Assn., 8th Dist. Cuyahoga No. 104890,

2017-Ohio-2760, ¶ 16, citing Nottingdale Homeowners’ Assn., Inc. v. Darby, 33 Ohio St.3d 32,

35-36, 514 N.E.2d 702 (1987). The plain language of the bylaws required the Association to

establish a reserve to be used for contingencies and replacement.

       {¶10} The Association concedes that it did not establish the reserve, but maintains that it

was not required to do so. It argues that the term “reserves” as used in the bylaws, does not refer

to a separate fund, but instead, “simply means money” or “another part of the budget, not a

mandate for a separate reserve fund or a reserve requirement * * *.” We reject this argument.

       {¶11} The bylaws’ language that the Association “shall build up and maintain a

reasonable reserve for contingencies and replacement” is clear and unambiguous, requiring no

interpretation or construction. Aultman Hosp. Assn. v. Community Mut. Ins. Co., 46 Ohio St.3d

51, 55, 544 N.E.2d 920 (1989). Although the bylaws do not use the word “fund,” the language

requiring the Association to “build up and maintain” permits no other conclusion than that the

Association create an ongoing reserve fund or account separate from its yearly line-item budget.

The ordinary meaning of the words “build up” means to establish something; the word

“maintain” means to cause or enable something to continue. Taken together, these words

require the establishment and maintenance of what could only be described as a reserve fund or a

reserve account. Our conclusion is reinforced by language in the bylaws providing that if there

is a shortfall in collecting “actual expenditures plus reserves” at the end of the budget year, the

owners are required to make up the shortfall in the next calendar year. See Article V, Section 2.

By differentiating reserves from “actual expenditures,” the bylaws make it clear that the reserve
is more than just an item of the budget and is a collection of money separate and apart from

money allocated to pay for routine services and expenditures.

       {¶12} The Association’s bylaws specifically state that the reserve fund is to be used for

“extraordinary expenditures”; that is, expenses not included in the annual budget estimate. It is

for this reason that the Association’s argument that it could maintain reserves as “another part of

the budget” fails. By definition, extraordinary expenditures — and no one disputes that the

HVAC replacement is an extraordinary expenditure — are items for which there is no budget.

And even if we were to accept the Association’s argument that it was not required to establish a

reserve fund, but instead merely maintain reserves as “just * * * another part of the budget,” the

fact remains that the Association offered no evidence to show that the budget contained any

amount of money in reserve to pay for extraordinary expenditures.

       {¶13} The Association also argues that the bylaws permit it to impose special assessments

as a means of addressing extraordinary expenditures without having to resort to the use of cash

reserves. While it is true that Article V, Section 3 of the bylaws provides “[i]f said ‘estimated

cash requirement’ proves inadequate for any reason * * * the same shall be assessed to the

owners according to each owner’s percentage of ownership,” that provision does not supersede

the reserve requirement.      In fact, the bylaws strictly prohibit special assessments as an

alternative to using reserve funds.        Article V, Section 3 of the bylaws states that

“[e]xtraordinary expenditures * * * shall be charged first against such reserve.” This language is

consistent with the requirement that a reserve fund be established for use in paying for

extraordinary expenditures.

       {¶14} The Association’s alternate or additional claim that it waived the reserve

requirement by holding an annual vote to do so pursuant to R.C. 5311.081(A) is also unavailing.
As previously discussed, R.C. 5311.081(A) does not apply to this case because the bylaws

otherwise provide for establishing a reserve fund.         And even if we were to find R.C.

5311.081(A) applicable, there is an inconsistency between the bylaws and the statute, and the

bylaws specifically state that “all inconsistencies between or among permissive provisions of any

statute and any provision of the Declaration and these By-Laws, shall be resolved in favor of the

Declaration and those By-Laws[.]” By-Laws, Article IV, Section 8. The Association has not

directed us to any language in either the declaration or the bylaws that would allow it to waive

the mandatory reserve requirement. In order to waive the reserve requirement, the Association

would have to formally amend its bylaws. See Declaration of Condominium Ownership for

Marine Towers East Condominium, Section 9. There is no indication that the Association

sought to amend its bylaws accordingly.

          {¶15} When reviewing a Civ.R. 12(C) judgment on the pleadings issued in a declaratory

judgment action, we look to see whether a “justiciable issue” exists on a legal interest or a right,

and whether there is a genuine “controversy” between parties who have adverse legal interests.

Woodson v. Ohio Adult Parole Auth., 10th Dist. Franklin No. 02AP-393, 2002-Ohio-6630, ¶ 7.

These are questions of law. Peterson v. Teodosio, 34 Ohio St.2d 161, 166, 297 N.E.2d 113

(1973).

          {¶16} We find as a matter of law that the Association’s governing documents required it

to “ build up and maintain a reasonable reserve” to pay for extraordinary expenditures that are

not included in the Association’s annual budget. We also find that because the Association’s

governing documents provided for a reserve fund, R.C. 5311.081(A), which applies only in the

event an association’s declarations or bylaws are silent on the issue, is inapplicable. The court

therefore erred by granting judgment on the pleadings and dismissing the owners’ complaint.
       {¶17} Judgment reversed and case remanded to the trial court for further proceedings

consistent with this opinion.

       It is ordered that appellants recover of appellees costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, JUDGE

MARY EILEEN KILBANE, P.J., CONCURS;
LARRY A. JONES, SR., J., CONCURS IN JUDGMENT ONLY
