[Cite as Elam v. Woodhawk Club Condominium, 2019-Ohio-457.]


               Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 107092



                                         DEBRA ELAM

                                                      PLAINTIFF-APPELLANT

                                                vs.

                           WOODHAWK CLUB CONDOMINIUM

                                                      DEFENDANT-APPELLEE




                                          JUDGMENT:
                                           AFFIRMED



                                    Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CV-17-880085

       BEFORE:         Boyle, P.J., Celebrezze, J., and Jones, J.

       RELEASED AND JOURNALIZED:                   February 7, 2019
ATTORNEY FOR APPELLANT

Bradley Hull
3681 South Green Road, Suite 208
Beachwood, Ohio 44122


ATTORNEYS FOR APPELLEE

Amanda A. Barreto
Wickens, Herzer, Panza, Cook & Batista
35765 Chester Road
Avon, Ohio 44011

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




MARY J. BOYLE, P.J.:

       {¶1}   Plaintiff-appellant, Debra Elam, appeals the trial court’s judgment granting

summary judgment in favor of defendant-appellee, Woodhawk Club Condominium II Owners’

Association, Inc. (“Association”). Elam raises one assignment of error for our review:

       The trial court erroneously determined that no genuine issue of material fact
       exists as to whether appellee Woodhawk’s refusal to maintain the ductwork and
       HVAC in question is not in violation of the plain language of the declaration
       between the parties, and thus that appellee Woodhawk is entitled to judgment as
       a matter of law as to the appellant’s, Debra Elam’s, claims for breach of fiduciary
       duty, negligence and wanton misconduct and declaratory judgment.

       {¶2}   Finding no merit to her appeal, we affirm.

I. Procedural History and Factual Background
         {¶3}   In January 2016, Elam purchased a condominium unit at Woodhawk Club

Condominium in Mayfield Heights, Ohio.        Elam, as the title owner of a unit, is a member of

the Association.

         {¶4}   In May 2017, Elam filed a complaint against the Association for breach of

contract, breach of fiduciary duty, negligence, and wanton misconduct, and for a declaratory

judgment that the Association’s rules and bylaws were unreasonable. She alleged that when

she took possession of her unit, she “discovered water seepage into the HVAC [heating,

ventilation, and air conditioning] units, which are exterior to her unit.” She asserted that

because the HVAC units are “exterior to, or outside the walls, of her unit,” they are common

elements. She demanded that the Association fix the water seepage issue, but it refused to do

so. She further alleged that because her HVAC unit was faulty, it posed a risk to health and

human safety.      The Association answered Elam’s complaint, denying the allegations.

         {¶5}   In January 2018, the Association moved for summary judgment. According to

the Association, its declaration and bylaws state that the HVAC system serving individual units

is part of the “limited common areas,” which means that unit owners are responsible for

“maintenance and repair of the ductwork and HVAC system servicing his or her individual

unit.”    The Association further argued that it did not breach any fiduciary duty or act

negligently or in a wanton manner and that Elam was not entitled to declaratory judgment.

Elam opposed the Association’s motion, supporting her arguments with her affidavit.

         {¶6}   The trial court subsequently granted the Association’s summary judgment

motion.    It is from this judgment that Elam now appeals.

II. Summary Judgment Standard
       {¶7}     We review a trial court’s decision on summary judgment under a de novo

standard of review. Baiko v. Mays, 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000).

Accordingly, we afford no deference to the trial court’s decision and independently review the

record to determine whether summary judgment is appropriate.           N.E. Ohio Apt. Assn. v.

Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th Dist.1997).

       {¶8}     Civ.R. 56(C) provides that before summary judgment may be granted, a court

must determine 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 the evidence most strongly in

favor of the nonmoving party, that conclusion is adverse to the nonmoving party.     State ex rel.

Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191, 672 N.E.2d 654 (1996).

       {¶9}     The moving party carries an initial burden of setting forth specific facts which

demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280,

292-293, 662 N.E.2d 264 (1996). If the movant fails to meet this burden, summary judgment

is not appropriate, but if the movant does meet this burden, summary judgment will be

appropriate only if the nonmovant fails to establish the existence of a genuine issue of material

fact. Id. at 293.

III. Analysis

       {¶10} Elam raises several issues within her sole assignment of error that all relate to her

four causes of action. Elam, however, does not argue these issues separately or in any logical

manner. Thus, we will attempt to decipher her arguments regarding each cause of action and

address them in an orderly fashion.

       A. Breach of Contract
       {¶11} Elam argues that the Association breached the terms of the rules and regulations

of its declaration and bylaws when it refused to maintain and fix the “defective and unsafe

HVAC system exterior” to her unit.

       {¶12} The Association contends that the declaration and bylaws are clear and

unambiguous and plainly state that maintaining the HVAC system is Elam’s responsibility, not

the Association’s.

       {¶13} Condominium declarations and bylaws are contracts between the association

and the purchaser and are subject to the traditional rules of contract interpretation. Nottingdale

Homeowners’ Assn., Inc. v. Darby, 33 Ohio St.3d 32, 35-36, 514 N.E.2d 702 (1987). A

contract that is clear and unambiguous requires no real interpretation or construction and will be

given the effect called for by the plain language of the contract. Aultman Hosp. Assn. v.

Community Mut. Ins. Co., 46 Ohio St.3d 51, 55, 544 N.E.2d 920 (1989).

       {¶14} Where a contract’s terms are clear and unambiguous, its interpretation is as a

matter of law, not fact, and may be adjudicated by summary judgment. Dutch Maid Logistics,

Inc. v. Acuity, 8th Dist. Cuyahoga Nos. 91932 and 92002, 2009-Ohio-1783, ¶ 19.               We,

therefore, interpret the terms of the Association’s declaration and bylaws de novo. Continental

W. Condo. Unit Owners Assn. v. Howard E. Ferguson, Inc., 74 Ohio St.3d 501, 502, 660 N.E.2d

431 (1996).

       {¶15} Elam does not point to any part of the declaration or bylaws that support her

position. Indeed, Elam does not cite to the declaration or bylaws anywhere in her brief. The

Association, however, points to the following sections of the declaration in support of its

argument.     Article II, Section (B) of the declaration describes “Common Areas and Facilities”

and “Limited Common Areas and Facilities.” It provides:
       (B) Common Areas and Facilities

       (1) Description of Common Areas and Facilities. The entire balance of the land
       and improvements thereon, including but not limited to, all buildings,
       foundations, roofs, main and supporting walls, exterior parking spaces,
       sidewalks, roadways, drives, storage spaces, if any, community facilities, if any,
       pumps, trees, lawns, gardens, pavement, balconies, porches, stoops, wires,
       conduits, utility lines and ducts now or hereafter situated on the Condominium
       Property, all as here in before more specifically described as “Common Areas
       and Facilities” in Article (F) hereof, are hereby declared and established as the
       Common Areas and Facilities. Specifically, all electric fixtures, utility pipes
       and lines, faucets, shower heads, plugs, connections, or fixtures as defined by the
       laws of the State of Ohio and all replacements thereof shall be part of the
       Common Areas and Facilities. Unless otherwise provided by the Unit Owners’
       Association, however, the care, maintenance, repair and replacement of all or any
       portion of such elements or fixtures located within Unit shall be the
       responsibility of the owner of such Unit.

       (2) Limited Common Areas and Facilities. Each Unit Owner is hereby granted
       an exclusive and irrevocable license to use and occupy to the exclusion of all
       others the Limited Common Areas and Facilities which area located within the
       bounds of his Unit or which serve only his Unit. The Limited Common Areas
       and Facilities with respect to each Unit (or group of Units) shall consist of such
       of the following as may be constructed to be Common Areas:

       ***

       (c) All ducts and plumbing, electrical and other fixtures, equipment and
       appurtenances, including the individual air-conditioning compressor for each
       Unit which is located outside of the bounds of the Unit, but which serves only the
       particular Unit, all other heating, air conditioning and ventilating equipment and
       systems located in Unit, thermostats and control devices, if any, and sanitary and
       storm sewer cleanouts located within the bounds of such Unit or located outside
       the bounds of Unit but serving particular Unit, and the structure for any of the
       foregoing (and space thereof), if any, located outside such Unit containing
       equipment serving only such Unit[.]

       {¶16} Article II, Section (C), provides that the Association shall maintain and manage

the common areas and facilities, but each unit owner shall

       (a) maintain, repair and replace at his expense all portions of his Unit, and all
       internal installations of such Unit such as appliances, plumbing, electrical and air
       conditioning fixtures or installations, and any portion of any other utility service
       facilities located within the Unit boundaries, other than such utility facilities
       serving other Units, and to assume the same responsibility with respect to the
       other Limited Common Areas and Facilities belonging to his Unit, including
       watering the yard areas adjacent to his Unit or making such water available to the
       Association, Management Company or their respective contractors, agents and
       employees. Each Unit Owner is responsible for maintenance and repair of the
       walks serving his Unit, including snow removal from his walks.

       {¶17} After review, we agree with the Association that the relevant portions of the

declaration in this case are unambiguous and plainly state that Elam, as a unit owner, is

responsible for the maintenance and repair of her heating and cooling system — whether they

are outside or inside of her apartment.

       {¶18} While Elam cites to several sections of the Ohio Condominium Act, she does not

explain how these statutes support her position. Indeed, these provisions simply define certain

elements of condominium law or set forth general law governing condominium associations and

do not lend support to any of Elam’s arguments.

       {¶19} Notably, Elam even acknowledges that these statutes only apply if the declarations

do not provide otherwise. There is no dispute in this case that the declarations here “provide

otherwise.” Elam concedes as much. She states that the “language contained in the 1993

Declarations and 1998 Handbook of Rules and Information, all related to the rights and

responsibilities to condominium units in Woodhawk, would seem to make a unit owner

responsible for any and all systems that serve only and solely their units.”

       {¶20} Accordingly, regarding Elam’s breach of contract claim, there are no genuine

issues of material fact remaining, and summary judgment was proper on this issue.

       B. Fiduciary Duty

       {¶21} Elam argues that genuine issues of material fact remain regarding whether the

Association breached its fiduciary duty to her.        She claims the Association breached its
fiduciary duty to her because it failed to maintain and repair her “faulty HVAC ductwork” and

unlawfully shifted “basic and fundamental HVAC maintenance obligations” to her. Elam

relies on Behm v. Victory Lane Unit Owners’ Assn., 133 Ohio App.3d 484, 728 N.E.2d 1093

(1st Dist.1999), which stated that “both the declaration and [R.C. 5311.14(A)] impose a

fiduciary duty on the part of the homeowners’ association and the board in particular to act in

the best interests of the property owners.”   Id. at 487.

       {¶22} R.C. 5311.14(A) provides,

       Unless provided otherwise in the declaration, damage to or destruction of all or
       any part of the common elements of a condominium property shall be promptly
       repaired and restored by the board of directors of the unit owners association.
       The cost of the repairs and restoration shall be paid from the proceeds of
       insurance, if any, payable because of the damage or destruction, and the balance
       of that cost is a common expense.

       {¶23} The Behm court noted,

         Though there is apparently no Ohio case law stating that a homeowners’
         association or its board stands in a fiduciary relationship to the unit owners, the
         Supreme Court of Ohio has held that “‘[a] “fiduciary relationship” is one in
         which special confidence is reposed in the integrity and fidelity of another and
         there is a resulting position of superiority or influence, acquired by virtue of this
         special trust.’” Belvedere Condominium Unit Owners’ Association v. R.E.
         Roark Cos., Inc. (1993), 67 Ohio St.3d 274, 282, 617 N.E.2d 1075, 1082,
         quoting In Re Termination of Employment of Pratt, 40 Ohio St.2d 107, 115, 321
         N.E.2d 603, 609 (1974). Clearly, the authority granted the board to maintain
         the common areas of the property carries with it the duty to exercise that
         authority in the best interests of the homeowners.
Id. at fn. 5.

       {¶24} After review, we disagree with Elam that Behm stands for the proposition that

condominium associations have a fiduciary duty to homeowners. Although the Behm court

stated that condominium associations and their board of directors owe a fiduciary duty to act in

the best interests of condominium owners, the court ultimately explained that it was the board of

directors of the associations that have the duty.   Id.
       {¶25} Indeed, under R.C. 1702.30(B), board of directors of nonprofit corporations,

which the Association is, owe a fiduciary duty to the corporation to act in good faith in a manner

the directors believe “to be in or not opposed to the best interests of the corporation.” Kleeman

v. Carriage Trace, Inc., 2d Dist. Montgomery No. 21873, 2007-Ohio-4209, ¶ 45, citing R.C.

1702.30(B). Here, however, Elam sued the Association, not its board.

       {¶26} Nonetheless, the Association agreed in its summary judgment motion that it must

act in the best interest of the members as a whole.

       {¶27} Article II, Section (C)(1), of the declaration in this case states in relevant part,

       The Association shall manage the Common Areas and Facilities and shall

       maintain and keep the same in a state of good working order, condition, and

       repair, in a clean, neat, safe, and sanitary condition, and in conformity with all

       laws, ordinances, and regulations applicable to the Common Areas and Facilities,

       by promptly, properly and in a good and workmanlike manner, making all

       repairs, replacements, alterations and other improvements necessary to comply

       with the foregoing.

       {¶28} The Association argues, however, that it acted in compliance with its declaration

and bylaws, which provide that unit owners must maintain the ductwork and HVAC system

servicing his or her individual unit.     The Association contends that if it were to expend

Association funds for an individual’s HVAC maintenance responsibility, it would not be acting

in the best interest of the Association as a whole. The Association asserts that without a duty

under the declaration to maintain Elam’s ductwork and HVAC system servicing her unit, it did

not breach any fiduciary duty to Elam.
          {¶29} After considering the record before us in this case, we conclude that Elam has

failed to point to any evidence that creates genuine issues of material fact as to whether the

Association breached its statutory duty, duty under the declaration, or any fiduciary duty.     As

we stated in the previous section, the Association does not have a duty to repair an individual

owner’s HVAC system under the Declaration.           Accordingly, without a duty to do so, the

Association could not have breached any duty, let alone a fiduciary duty.

          C. Negligent and Wanton Misconduct

          {¶30} Elam argues that genuine issues of material fact remain regarding whether the

Association acted negligently or in a wanton manner (1) when it maintained “an HVAC system

that is of such poor quality and poor design that it literally crumbles,” (2) for allowing this

“condition to fester and get worse, while shirking its own responsibilities of maintenance and

repair,” and (3) for knowingly “taking no remedial action whatsoever” to repair Elam’s HVAC

system.

          {¶31} It is black letter law that actionable negligence requires a duty, a breach of the

duty and resultant proximate damages. Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d

75, 77, 472 N.E.2d 707 (1984). “Like a finding of negligence, a finding of wanton or reckless

conduct requires a showing of duty.” Estate of Graves v. Circleville, 179 Ohio App.3d 479,

2008-Ohio-6052, 902 N.E.2d 535, ¶ 25 (4th Dist.). Without any duty to maintain or repair

Elam’s HVAC system, there are no genuine issues of material fact as to whether the Association

acted negligently or with wanton misconduct.

          D. Declaratory Judgment

          {¶32} Elam further argues that genuine issues of material fact exist as to whether she is

entitled to a declaratory judgment because issues of fact remain regarding the reasonableness of
the declaration. She claims that she is entitled to a declaratory judgment that the Association’s

declaration is unreasonable. We disagree.

       {¶33} A declaratory judgment action is a creature of statute. See R.C. 2721.01 through

2721.15. “The Declaratory Judgments Act was fashioned to provide remedies where none

exists, in the situation where a particular controversy has not advanced to the point where a

conventional remedy is reasonably available.” D.H. Overmyer Telecasting Co. v. Am. Home

Assur. Co., 29 Ohio App.3d 31, 32, 502 N.E.2d 694 (8th Dist.1986). “The entertainment of a

declaratory judgment action rests within the sound discretion of the trial court.”   Id.

       {¶34} A declaratory judgment may be commenced as set forth in R.C. 2721.03:

       [A]ny person whose rights, status, or other legal relations are affected by a
       constitutional provision, statute, rule as defined in section 119.01 of the Revised
       Code, municipal ordinance, township resolution, contract, or franchise may have
       determined any question of construction or validity arising under the instrument,
       constitutional provision, statute, rule, ordinance, resolution, contract, or franchise
       and obtain a declaration of rights, status, or other legal relations under it.

       {¶35} In this case, Elam argues that the declaration is unreasonable because it requires

her to maintain and repair her HVAC system when parts of the system are underground and

outside of her condominium. Because the ductwork for her HVAC system is underground and

outside of the walls of her condominium, she asserts that she would suffer great hardship if she

had to repair her HVAC system. She further argues that there was no meeting of the minds

regarding the declaration.

       {¶36} Essentially, Elam is arguing that the declaration is both procedurally and

substantively unconscionable. A party bears the burden of proving that an agreement is both

substantively and procedurally unconscionable. Taylor Bldg. Corp. of Am. v. Benfield, 117

Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 33. In this case, Elam does not provide any
evidence of her claims whatsoever besides her self-serving affidavit. Indeed, there is nothing

in the record — besides Elam’s affidavit — to support her argument that the declaration’s

provision requiring unit owners be responsible for their own HVAC system is unreasonable.

See Davis v. Cleveland, 8th Dist. Cuyahoga No. 83665, 2004-Ohio-6621, ¶ 23 (“Generally, a

party’s unsupported and self-serving assertions, * * * standing alone and without corroborating

materials under Civ.R. 56, will not be sufficient to demonstrate material issues of fact.

Otherwise, a party could avoid summary judgment under all circumstances solely by simply

submitting such a self-serving affidavit containing nothing more than bare contradictions of the

evidence offered by the moving party.”).

       {¶37} There is also no evidence of procedural unconscionability.               Procedural

unconscionability involves factors bearing on the relative bargaining position of the contracting

parties, including “age, education, intelligence, business acumen and experience, relative

bargaining power, who drafted the contract, whether the terms were explained to the weaker

party, whether alterations in the printed terms were possible[.]”   Collins v. Click Camera &

Video, 86 Ohio App.3d 826, 834, 621 N.E.2d 1294 (2d Dist.1993), citing Johnson v. Mobil Oil

Corp., 415 F.Supp. 264 (E.D.Mich.1976). The crucial question is whether a party, considering

his or her education or lack of it, had a reasonable opportunity to understand the terms of the

contract, or were the important terms hidden in a maze of fine print.    Lake Ridge Academy v.

Carney, 66 Ohio St.3d 376, 383, 613 N.E.2d 183 (1993). There is no evidence in this case that

Elam was not able to read and understand the declaration before she purchased her

condominium.

       {¶38} Finally, regarding Elam’s claim that there was not a meeting of the minds because

the Association never explained the terms of the declaration to her, we disagree. “A party
entering a contract has a responsibility to learn the terms of the contract prior to agreeing to its

terms.” Cheap Escape Co. Inc. v. Crystal Windows & Doors Corp., 8th Dist. Cuyahoga No.

93739, 2010-Ohio-5002, ¶ 17. It is well established that one party to a contract is not required

to explain each contract provision to the other party before signing the document. Id., citing

ABM Farms, Inc. v. Woods, 81 Ohio St.3d 498, 503, 692 N.E.2d 574 (1998). Moreover, a

party to a contract is presumed to have read and understood the terms and is bound by a contract

that he willingly signed.   Id., citing Preferred Capital, Inc. v. Power Eng. Group Inc., 112

Ohio St.3d 429, 2007-Ohio-257, 860 N.E.2d 741.

       {¶39} Accordingly, we agree with the trial court that no genuine issues of material fact

exist on Elam’s declaratory judgment claim.

IV. Conclusion

       {¶40} After reviewing the parties’ arguments, the pertinent law, and the record before us,

we find no error on the part of the trial court in granting summary judgment to the Association.

Elam did not meet her reciprocal burden of pointing to evidence in the record that established

that genuine issues of material fact remain regarding on each of her claims. Accordingly, we

find that the trial court’s judgment in favor of the Association on its summary judgment motion

was proper. Elam’s sole assignment of error is overruled.

       {¶41} 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 J. BOYLE, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR
