[Cite as Country Club Condominium Owners' Assn., Inc. v. Sammon, 2013-Ohio-3528.]


                Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 99220



         COUNTRY CLUB CONDOMINIUM OWNERS’
                  ASSOCIATION, INC.
                                                PLAINTIFF-APPELLANT

                                                  vs.


                THOMAS E. SAMMON, JR., TRUSTEE
                                                DEFENDANT-APPELLEE




                                         JUDGMENT:
                                          AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CV-669180

        BEFORE: Kilbane, J., Celebrezze, P.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                       August 15, 2013
ATTORNEYS FOR APPELLANT

Kevin M. Fields
Robert E. Kmiecik
Kaman & Cusimano, L.L.C.
50 Public Square
Suite 2000
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

John J. Duffy
John J. Duffy & Associates
Brendan Place
23823 Lorain Road, Suite 270
North Olmsted, Ohio 44070
MARY EILEEN KILBANE, J.:

      {¶1} Plaintiff, Country Club Condominium Owners’ Association Inc. (“the

Association”), appeals from the order of the trial court that awarded summary judgment

to defendant-appellee, Thomas E. Sammon Jr., trustee of a condominium (“Trustee” or

“Sammon”) in the Association’s action for foreclosure upon a lien for an assessment

levied against Sammon for repairs of his balcony. The trial court properly held that

Sammon was denied a hearing on the matter as required under R.C. 5311.081(C), so we

affirm the judgment of the trial court in favor of Sammon on the Association’s claims for

foreclosure and money damages.

      {¶2} This matter arises from a dispute over payment of repairs to the floor of the

balcony at Sammon’s unit at the Country Club Condominiums in North Olmsted, Ohio.

Under the terms of the Declaration of Condominium Ownership (“the Declaration”), the

porches, patios, and other areas that adjoin each unit are deemed “Limited Common

Areas and Facilities” and are to be maintained by the owners of the individual units. The

Declaration further provides that the Association may make assessments for the payment

of common expenses and shall have a lien for such assessments.

      {¶3} On January 5, 2005, Sammon received a letter from the Association

advising him that a leak from his balcony floor had caused water damage to the unit

owned by his downstairs neighbor, Paula Weiss. The Association instructed Sammon to

have the balcony repaired and to forward a copy of the work report and follow-up
inspection to the Association by January 31, 2005.           The Association also notified

Sammon that failure to correct the leak by that date would result in an enforcement

assessment of up to $25 per day.           The Association informed Sammon that the

Declaration authorizes it to retain a contractor to fix the balcony floor

       if it is not fixed by January 31st, at your sole risk and expense and without
       further notice to you. * * * Please also note that all enforcement
       assessments and costs, including legal fees, will also be assessed back to
       you.

       {¶4} In response to this letter, Sammon obtained various repair estimates,

including an estimate from Brad Smith Roofing Co., in the amount of $2,000. On March

29, 2005, Sammon advised the Association that the balcony had been repaired.

       {¶5} On May 10, 2005, the Association requested additional information

detailing all of the work that was completed, and advising him that a $25 per day

enforcement assessment would be imposed if Sammon did not provide the requested

documentation by May 20, 2005. This letter also advised Sammon that he had the right

to request a hearing by that date and provided a form for him to do so.

       {¶6} Sammon did not request a hearing. Instead, he submitted an invoice from

H.C. Miller Remodeling outlining the repairs performed on the deck and some of the

surrounding roofing and wall framing.

       {¶7} By December 2005, Weiss again complained about leaks into her unit. On

April 1, 2006, Sammon hired Cundiff to complete the repairs for $3,200. By November

2006, Weiss again complained that water had leaked into her condominium.               On

November 28, 2006, the Association informed Sammon that it had retained Brad Smith
Roofing to complete the repairs at a cost of $10,690, and that Sammon was responsible

for paying for this repair. The Association’s letter also advised Sammon that if he did

not sign the enclosed agreement with Brad Smith Roofing, the Association would retain

Smith at Sammon’s “risk and expense without further notice to you and/or filing a lawsuit

against you without further notice to you.” The letter did not provide Sammon with an

opportunity for a hearing.

       {¶8} On January 27, 2007, Sammon, Cundiff, and the president and vice

president of the Association met at Weiss’s unit. At this time, the Association informed

Sammon that if he disagreed with any of the items on the work order from Brad Smith

Roofing, he had to explain them in writing to the Association. Cundiff opined that

several of the items on the Brad Smith Roofing proposal were not necessary and that the

leak may be due to defective gutters and downspouts. Sammon also obtained a quote

from a third contractor for $1,600.

       {¶9} On April 23, 2007, the Association advised Sammon that it was proceeding

under the proposal from Brad Smith Roofing, and that this repair would be assessed to

Sammon. The Association did not provide Sammon with an opportunity for a hearing.



       {¶10} On February 5, 2008, the Association advised Sammon that he owed

$16,244.87 for the balcony repairs. On June 21, 2008, the Association filed a lien on

Sammon’s property in the amount of $16,514.87, which included the roof repair and other

unpaid fees and assessments. On August 9, 2008, the Association filed a complaint for
foreclosure on the certificate of lien and the other unpaid fees and assessments. In his

answer, Sammon claimed that the lien was void because the Association failed to provide

him with a hearing on the matter as required under R.C. 5311.081(C). Sammon also

filed a counterclaim for slander of title.

          {¶11} Both parties moved for summary judgment. Sammon asserted that the

requirements of R.C. 5311.081(C) are mandatory, and that the Association’s failure to

comply with this statute rendered the assessment lien void. The Association insisted that

R.C. 5311.081(C) applies only where the assessment pertains to damage to a common

area and is inapplicable to matters involving an owner’s repair of his own property or

limited common areas.        The Association also claimed that this matter was not an

“enforcement assessment” within the meaning of the statute since it involves payment of

a contractor’s fee and not the $25 daily penalty for noncompliance.            Finally, the

Association argued that the lengthy pretrial process of working with Sammon to reach a

solution in the matter amply satisfied all due process requirements.

          {¶12} The magistrate determined that the matter involved an assessment within the

meaning of R.C. 5311.081, that notice of the right to a pre-assessment hearing is

mandatory under R.C. 5311.081(C), and that these statutory requirements were not met

herein.     The Association filed objections, again insisting that R.C. 5311.081(C) is

inapplicable and that, in addition to the costs associated with the roof, Sammon had

incurred other fees and assessments after the Association filed the instant complaint.
      {¶13} On September 29, 2012, the trial court overruled the objections, adopted the

magistrate’s decision, entered summary judgment in favor of Sammon, and found no just

reason for delay. The Association now appeals and raises four assignments of error for

our review.

                                Assignment of Error One

      The trial court erred in granting Defendant/Appellee’s Motion for Summary

      Judgment as Revised Code 5311.081(C)(1) only requires a hearing if the

      Association is assessing charges for damages to the common elements or

      other property, not when it is assessing costs associated with the

      maintenance or repair of an owner’s unit or limited common element.

      {¶14} With regard to procedure, we note that a reviewing court reviews an award

of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,

1996-Ohio-336, 671 N.E.2d 241; Mitnaul v. Fairmount Presbyterian Church, 149 Ohio

App.3d 769, 2002-Ohio-5833, 778 N.E.2d 1093 (8th Dist.). Therefore, this court applies

the same standard as the trial court, viewing the facts in the case in the light most

favorable to the nonmoving party and resolving any doubt in favor of the nonmoving

party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12, 467 N.E.2d 1378 (6th

Dist.1983).

      {¶15} Pursuant to Civ.R. 56(C), summary judgment is proper if: (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 in favor of the

party against whom the motion for summary judgment is made, that conclusion is adverse

to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267

(1977).

      {¶16} Once a moving party satisfies its burden of supporting its motion for

summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), the

nonmoving party must set forth specific facts, demonstrating that a genuine triable issue

exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447,

449, 1996-Ohio-211, 663 N.E.2d 639.

      {¶17} With regard to the substantive law, we note that R.C. 5311.081(B) provides

as follows:

      Unless otherwise provided in the declaration, the unit owners association,
      through the board of directors, may exercise all powers of the association,
      including the power to do the following:

      ***
      (12) Impose interest and late charges for the late payment of assessments;

      impose returned check charges; and, pursuant to division (C) of this section,

      impose reasonable enforcement assessments for violations of the

      declaration, the bylaws, and the rules of the unit owners association, and

      reasonable charges for damage to the common elements or other property[.]

      {¶18} Thus, pursuant to R.C. 5311.081(C), prior to imposing a charge for damages

or an enforcement assessment for violations of the declarations, bylaws, or rules of a

condominium association, a board of directors must provide the condominium owner with
notice and an opportunity for a hearing. Olentangy Condominium Assn. v. Lusk, 10th

Dist. Franklin No. 09AP-568, 2010-Ohio-1023, ¶ 33. Nothing in the language of R.C.

5311.081 limits the requirement of notice and an opportunity for hearing to “reasonable

charges for damage to the common elements or other property.”

       {¶19} In this matter, the record clearly demonstrates that the Association levied a

special assessment against Sammon for the October 19, 2007 balcony repairs performed

by Brad Smith Roofing Company. The undisputed evidence of record indicates that

under the Declaration, the Association designated the porches and patios “Limited

Common Areas and Facilities” that are to be maintained by the owners of the individual

units. The Association was authorized under the Declaration to make assessments for

the payment of common expenses and shall have a lien for such assessments. The record

clearly establishes that the assessment for repairs is a “charge for damages” to the limited

common area and is an assessment for the enforcement of the unit owner’s duty to make

repairs. In accordance with R.C. 5311.081(C), prior to imposing a charge for damages or

an enforcement assessment, the Association was required to provide the condominium

owner with notice and an opportunity for a hearing. Absent such notice of the right to a

hearing, the assessment was improper.

       {¶20} The first assignment of error is without merit.

       {¶21} The Association’s second and fourth assignments of error are interrelated

and state:

                           Assignments of Error Two and Four
The trial court erred in granting Defendant/Appellee’s Motion for Summary
Judgment since, even assuming arguendo that Association was required to
provide Defendant/Appellee with an opportunity for a hearing,
Defendant/Appellee [has] received substantial and sufficient due process
prior to the repairs and is currently being afforded additional due process
protection in the instant litigation.

The trial court erred in dismissing Association’s claims with prejudice as

the adjudication was not on the merits.

{¶22} R.C. 5311.081(C)(1) provides in relevant part as follows:

(1) Prior to imposing a charge for damages or an enforcement assessment
pursuant to R.C. 5311.081(B)(12) of this section, the board of directors
shall give the unit owner a written notice that includes all of the following:

(a) A description of the property damage or violation;

(b) The amount of the proposed charge or assessment;

(c) A statement that the owner has a right to a hearing before the board of
directors to contest the proposed charge or assessment;

(d) A statement setting forth the procedures to request a hearing pursuant to
division (C)(2) of this section;

(e) A reasonable date by which the unit owner must cure the violation to
avoid the proposed charge or assessment.

***

(3) The board of directors shall not levy a charge or assessment before
holding any hearing requested pursuant to division (C)(2) of this section.

***

(5) Within thirty days following a hearing at which the board of directors
imposes a charge or assessment, the unit owners association shall deliver a
written notice of the charge or assessment to the unit owner.
       (6) Any written notice that division (C) of this section requires shall be
       delivered to the unit owner or any occupant of the unit by personal delivery,
       by certified mail, return receipt requested, or by regular mail.

       {¶23} From the foregoing, R.C. 5311.081(C)(1) mandates that in order for a

condominium association to impose a charge for damages or an enforcement assessment

pursuant to R.C. 5311.081(B)(12), “the board of directors shall give the unit owner a

written notice” of the right to a hearing, and procedures for requesting a hearing. Under

the mandatory language of R.C. 5311.081(C), no charge or assessment shall be levied

before the required hearing is held. The required notice must be sent in writing to the

unit owner. There is no provision under which these requirements may be satisfied by

substantial compliance or through a course of action involving negotiation with the unit

owner. The second assignment of error is therefore without merit.

       {¶24} Further, as to the Association’s contention in the fourth assignment of error

that the trial court could have “concluded that the Association’s failure to offer a hearing

is simply a condition precedent to the levying of the assessment and dismissed the case

without prejudicing the Association’s ability to hold a hearing and refile,” we note that

under R.C. 5311.081(C)(3), the board of directors shall not levy a charge or assessment

before holding any hearing requested pursuant to R.C. 5311.081(C).            The hearing

required under R.C. 5311.081(C) is not simply a technical requirement, but is designed to

meet the requirements of procedural due process.              Grand Bay of Brecksville

Condominium v. Markos, 8th Dist. Cuyahoga No. 73964, 1999 Ohio App. LEXIS 1162

(Mar. 25, 1999). Therefore, an opportunity for a meaningful hearing must precede any
assessment. Since that did not occur herein, the trial court properly determined that the

lien was null and void.

       {¶25} The fourth assignment of error is without merit.




                                Assignment of Error Three

       The trial court erred in granting Defendant/Appellee’s Motion for Summary
       Judgment as genuine issues of material fact exist as to
       Defendant/Appellee’s failure to pay additional maintenance fees and
       assessments, other than the special assessment for balcony repairs incurred
       subsequent to the filing of this lawsuit.

       {¶26} The Association next maintains that Sammon has subsequently incurred

other costs and fees in addition to the assessment for the balcony repair. This matter

arises from enforcement of the lien for the balcony repairs. Once Sammon challenged

that lien as deficient under R.C. 5311.081, the Association presented no further evidence

concerning these claimed additional charges. As such, there is no genuine issue of

material fact and Sammon was properly awarded summary judgment.

       {¶27} The third assignment of error is without merit.

       {¶28} 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.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
