[Cite as Slosar v. Homestead Creek Homeowners Assoc., Inc., 2011-Ohio-4420.]


          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 96320




                        PATRICIA SLOSAR, ET AL.
                                                          PLAINTIFFS-APPELLEES

                                                    vs.

                   HOMESTEAD CREEK
              HOMEOWNERS ASSOCIATION, INC.
                                                          DEFENDANT-APPELLANT




                                         JUDGMENT:
                                          AFFIRMED


                                      Civil Appeal from the
                                     Parma Municipal Court
                                     Case No. 10 CVI 02719

        BEFORE:           Keough, J., Blackmon, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                              September 1, 2011
ATTORNEY FOR APPELLANT

Joseph F. Salzgeber
Foth & Foth Co., L.P.A.
11221 Pearl Road
Strongsville, OH 44136


ATTORNEY FOR APPELLEES

Richard L. Stoper, Jr.
Rotatori Bender Co., L.P.A.
800 Leader Building
526 Superior Avenue, N.E.
Cleveland, OH 44114




KATHLEEN ANN KEOUGH, J.:
      {¶ 1} Defendant-appellant, Homestead Creek Homeowners Association,

Inc. (“Homestead” or “the Association”), appeals the trial court’s decision

awarding judgment in favor of plaintiffs-appellees, Patricia and John Slosar

(“the Slosars”). For the reasons that follow, we affirm.

      {¶ 2} In July 2010, the Slosars filed a complaint against Homestead and

M2 Management Group, LLC (“M2”) seeking reimbursement for expenses

incurred in having an easement located on their property landscaped with new

mulch. The matter was referred to a magistrate and the following facts were

elicited at trial.

      {¶ 3} The Slosars own a home and a large parcel of property at 8960 Avery

Road in Broadview Heights, Ohio. Adjacent to the property are single-family

homes that belong to and comprise the Association. Homestead is run by a

Board of Trustees, which retained M2, owned by Leonard Mauger (“Mauger”),

to operate the day-to-day affairs and operations of Homestead.

      {¶ 4} This case centers around a Landscaping Easement that was entered

into on July 2, 1991 between Homestead and SMS Development Co., Inc. for a

parcel of land adjoining the 8960 Avery Road property. This easement was

negotiated at the same time that the Slosars purchased the property from SMS

Development. The easement was created to give access to and enhance the

surroundings of the Homestead Creek development.           The easement parcel

contains a lengthy brick wall and detailed landscaping that extends in front of
the Slosars’ property and continues into the development entranceway. The

Slosars’ property faces the backside of the wall. John Slosar testified that the

Landscaping Easement was specifically established because of the Slosars’

concern about the maintenance of the easement property.

      {¶ 5} Pursuant to the terms of the Landscaping Easement, Homestead

had “the right to enter upon said premises to inspect, maintain, and if

necessary, replant the landscaping placed by [the Slosars] thereon and repair

the stone wall erected thereon.” Further, it obligated Homestead “to maintain

the stone wall and landscaping in at least their condition as of the date” the

Landscaping Easement was executed. In the event that Homestead failed “to

maintain the easement area as provided herein, then [the Slosars] * * * shall,

after thirty (30) days written notice to [Homestead] to remedy the situation,

have the right to either maintain or repair the landscaping and charge

[Homestead] therefor, or terminate the easement.”

      {¶ 6} The Slosars testified that every year from 1991 until approximately

2008, the easement property       was cleaned, weeded, edged, and freshly

mulched to their satisfaction. However, in 2008, after Homestead elected a

new Board of Trustees        and M2 was retained as the new property

management company, the yearly mulching did not occur on their easement

property.
     {¶ 7} Beginning in the fall of 2009, M2 received various communications

from the Slosars requesting that their easement property be mulched and

edged. On April 17, 2010, the Slosars sent a fax to Mauger indicating that

their easement property needed to be cleaned, edged, and mulched because it

was not done in 2009. In response to the fax, Homestead directed M2 to have

the landscapers remove mulch from an existing landscaped area on the

Homestead Creek property and apply it to the Slosars’ side of the easement

property. Additionally, Mauger and the landscaper conferred with the Slosars

and confirmed that their easement property would be cleaned and mulched.

     {¶ 8} Subsequently, on May 14, the Slosars called Mauger expressing

concern that while landscaping work was being performed on Homestead’s

property and portion of the easement, no work was being performed on their

side of the easement property.     Mauger reassured the Slosars that the

landscapers had not completed the landscaping in the area.

     {¶ 9} On May 17, the Slosars sent another fax to Mauger stating that

their personal landscaper would be at their home on “Wednesday [May 19] or

Thursday [May 20]” and if M2 could not provide a reasonable completion date

for the landscaping, they would have the work done by their personal

landscapers and    ask for reimbursement from Homestead.              Mauger

subsequently informed the Slosars that he would address their issues at the

Board of Trustees meeting that evening and get back to them the following day.
Later that day, Mauger received an email from his landscapers informing him

that existing mulch had been removed from the “center island” of the

Homestead Creek development and placed on the Slosars’ side of the easement.

Mauger conceded that he did not verify that this work was actually done and it

appears this information was not shared with the Slosars. Moreover, Mauger

admitted that the amount of mulch that would have been moved from the

“center island” was not enough to cover the area to be mulched on the Slosars’

side of the easement.

      {¶ 10} When the Slosars did not hear from Mauger the following day and

their phone calls were unanswered and unreturned on the days that followed,

they had their landscaper apply 12 yards of mulch on their easement parcel at

a cost of $733.77.

      {¶ 11} The     Slosars   submitted   the   invoice   to   Homestead   for

reimbursement; however, Homestead refused to pay the bill, claiming it was

not obligated to mulch the easement parcel under the Landscaping Easement

because mulch is not “maintenance” but serves as beautification and

enhancement.       The Slosars testified that beautification was one aspect of

mulch; however, John Slosar also testified that mulch controls weed growth.

      {¶ 12} The magistrate issued a written decision granting Homestead’s

oral motion to dismiss M2, but finding in favor of the Slosars and awarding

judgment in the amount of $733.77, plus interest. Homestead filed objections
to the magistrate’s decision, which the trial court overruled, adopting the

magistrate’s decision.

      {¶ 13} Homestead appeals, raising the following assignment of error for

this court to consider:

“The trial court erred by interpreting the recorded landscaping
easement, which required the defendant Homeowners Association to
maintain the brick wall and landscaping in the easement area located
on the plaintiff Homeowners’ property, as requiring that the
defendant association to reimburse the plaintiffs for the cost of
placing new mulch on their side of the easement area, where: (1)
plaintiffs did not provide the required 30-day notice; (2) defendant
had been informed by its expert landscapers that no new mulch was
needed and, therefore, instead caused existing mulch to be moved
from the entrance ‘island’ to the easement area on plaintiff’s property
in response to their requests; and (3) the new mulch was not
necessary for maintenance purposes, but only for mere beautification
purposes.”

      {¶ 14} The Slosars’ brief succinctly sets forth and dissects the relevant

issues in this appeal:    (1) whether the notice given by the Slosars was

sufficient and in accordance with the Landscaping Easement, (2) whether the

Landscaping Easement is enforceable as an independent contract and is not

subject to the business-judgment rule, and (3) whether maintenance of the

landscaping on the easement includes mulching.

      {¶ 15} Appellate review of a trial court’s interpretation of an easement

agreement is conducted under a de novo standard of review, but we defer to the

trial court’s factual findings if there is competent, credible evidence that
supports the trial court’s decision. Murray v. Lyon (1994), 95 Ohio App.3d

215, 219, 642 N.E.2d 41.

      {¶ 16} Homestead first contends that the trial court erred in finding that

the Slosars complied with the 30-day notice requirement under the

Landscaping Easement.

      {¶ 17} The pertinent language of the Landscaping Easement provides:

“Should [Homestead] fail to maintain the easement area as provided herein,

then [the Slosars] * * * shall, after thirty (30) days written notice to

[Homestead] to remedy the situation, have the right to either maintain or

repair the landscaping and charge [Homestead] therefor, or terminate the

easement.”

      {¶ 18} The plain and unambiguous language of the easement provided

that the Slosars were required to give Homestead 30 days written notice to

remedy their failure to maintain the easement. If the requisite notice was

given and Homestead did not remedy the issue, then the Slosars had the right

to either maintain or repair the landscaping and charge Homestead, or

terminate the easement.

      {¶ 19} Clearly, Homestead has failed to maintain the easement since 2008

because it is undisputed that no maintenance to the easement was performed

in 2009. It is also undisputed that the Slosars’ fax constitutes “written notice.”
Therefore, the issue is whether the April 17 faxed correspondence was

sufficient notice under the Landscaping Easement.

      {¶ 20} The April 17 fax, which the Slosars sent to Mauger stated: “Please

be advised that the easement on [our] property will need [to be] cleaned, edged

and mulched this year. You will recall no mulching or edging was done last

spring to save the development on costs. However, this year the work will

need to [be] part of your spring activities.”

      {¶ 21} Homestead argues that this faxed correspondence was insufficient

because it did not mention the 30-day clause of the recorded Landscaping

Easement and it did not affirmatively state that the Slosars would exercise

their rights to maintain or repair the landscaping and charge the Association if

the requested work was not performed in the easement area. Although the

faxed correspondence is devoid of any formal language found in the

Landscaping Easement, the subsequent actions taken by Homestead and its

agents evidence that it understood the nature and purpose of the

correspondence.

      {¶ 22} Mauger testified that after receiving the fax, he contacted the

landscaping contractor regarding moving mulch from the front entrance area of

the development to the Slosars’ easement property. Additionally, on April

30, Mauger and the landscaper informed the Slosars that they would be

cleaning and mulching the Slosars’ portion of the easement. On May 14 there
was more communication between Patricia Slosar and Mauger after Patricia

noticed that the landscapers only cleaned and mulched the area on

Homestead’s portion of the easement area, and not the Slosars’ side. On May

17, Patricia again faxed correspondence to Mauger regarding the lack of

attention to the easement. She indicated that her personal landscapers were

coming to do work on that Wednesday (May 19) or Thursday (May 20) on other

areas of their property.   She requested a reasonable completion date and

stated that if one could not be given, she would have her landscapers landscape

the easement and she would bill the Association. No further correspondences

were exchanged between the Slosars and Mauger or Homestead.

      {¶ 23} We find competent and credible evidence supporting the trial

court’s findings and conclusion that the Slosars complied with the thirty-day

notice requirement when they sent a fax to Mauger on April 17 requesting that

Homestead maintain the easement. According to the Landscaping Easement,

the Slosars could have terminated the easement and essentially removed the

wall and other landscaping erected on the easement property. We find that the

Slosars chose the more neighborly solution under the Landscaping Easement

by having $733 worth of mulch applied to their property.

      {¶ 24} Next, Homestead contends that the trial court erred in finding that

the business-judgment rule does not apply in this matter.           Homestead
maintains that the business-judgment rule allows it to exercise discretion

under the Landscaping Easement.

      {¶ 25} The business-judgment rule “is a rebuttable presumption that

directors are better equipped than the courts to make business judgments and

that the directors acted without self-dealing or personal interest and exercised

reasonable diligence and acted with good faith. A party challenging a board of

directors’ decision bears the burden of rebutting the presumption that the

decision was a proper exercise of the business judgment of the board.” Gries

Sports Ent., Inc. v. Cleveland Browns Football Co. (1986), 26 Ohio St.3d 15, 20,

496 N.E.2d 959.

      {¶ 26} The business-judgment rule is inapplicable to this case because the

Slosars’ cause of action arises from an independent easement contract between

them and Homestead, and not from any bylaws or regulations that might

create any fiduciary relationship between Homestead and the Slosars.         In

general, “[a]n easement is the interest in the land of another, created by

prescription or express or implied grant, that entitles the owners of the

easement, the dominant estate, to a limited use of the land in which the

interest exists, the servient estate.” (Citations omitted.) Crane Hollow, Inc.

v. Marathon Ashland Pipe Line, LLC (2000), 138 Ohio App.3d 57, 66, 740

N.E.2d 328. When interpreting the terms of a written easement document,

courts must follow the rules of contract construction “so as to carry out the
intent of the parties, as that intent is evidenced by the contractual language.”

Lakewood Homes v. BP Oil, Inc., Hancock App. No. 5-98-29, 1999-Ohio-851,

citing Skivolocki v. E. Ohio Gas Co. (1974), 38 Ohio St.2d 244, 313 N.E.2d 374,

paragraph one of the syllabus. The language of an easement, considered in

light of the surrounding circumstances, is the best indication of the extent and

limitations of the easement.        Apel v. Katz, 83 Ohio St.3d 11, 17,

1998-Ohio-420, 697 N.E.2d 600.

      {¶ 27} In this case, the Landscaping Easement expressly obligates

Homestead “to maintain the stone wall and landscaping in at least their

condition as of the date hereof.” Past actions by Homestead indicates that the

Slosars’ easement property was weeded, cleaned, edged, and mulched every

year from 1991 until 2008. Because the Slosars are not members of the

Association, but private homeowners who have a contractual easement with

Homestead, we find that the trial court did not err in finding that the

business-judgment rule does not apply.

      {¶ 28} Finally, Homestead contends that the trial court erred in finding

that mulch is considered “maintenance.”          The Landscaping Easement

expressly provides that Homestead is to “maintain the landscaping” as it

existed at the time the easement was established. The Slosars testified that

re-mulching of their easement was an ongoing activity performed by

Homestead since 1991.
      {¶ 29} We find that competent and credible evidence exists supporting the

trial court’s finding that mulch is not just for beautification, but is also a form

of landscaping maintenance. John Slosar testified that mulch is applied to

hinder weeds growing in the landscaped areas. Although there was testimony

that mulch may be used primarily for beautification purposes, we find that

mulch serves a dual purpose — preventing weeds and allowing proper water

drainage while preserving and maintaining the beauty of the area. Therefore,

we find that Homestead’s obligation to “maintain the landscaping” includes

mulching.

      {¶ 30} Accordingly, we find that the trial court did not err in adopting the

magistrate’s decision and entering judgment in favor of the Slosars in the

amount of $733.77, plus interest.        Homestead’s assignment of error is

overruled.

      Judgment affirmed.

      It is ordered that appellees 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.
KATHLEEN ANN KEOUGH, JUDGE

PATRICIA ANN BLACKMON, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
