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Country Club Condominium Owners' Association, Inc. v. Sammon

Court of Appeals of Ohio, Eighth District

August 15, 2013

COUNTRY CLUB CONDOMINIUM OWNERS' ASSOCIATION, INC. PLAINTIFF-APPELLANT
v.
THOMAS E. SAMMON, JR., TRUSTEE DEFENDANT-APPELLEE

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

Kevin M. Fields Robert E. Kmiecik Kaman & Cusimano, L.L.C. ATTORNEYS FOR APPELLANT

John J. Duffy John J. Duffy & Associates Brendan Place ATTORNEY FOR APPELLEE

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

MARY EILEEN KILBANE, J.

(¶l} 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.

(ΒΆ10} 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 ...


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