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Clark v. Enchanted Hills Community Association

Court of Appeals of Ohio, Fourth District, Highland

May 5, 2017

BETTY CLARK, Plaintiff-Appellant,

          Lee D. Koogler, Hillsboro, Ohio, for appellant

          Amy Schott Ferguson, Cincinnati, Ohio, for appellee


          Peter B. Abele, Judge

         {¶ 1} This is an appeal from a Highland County Common Pleas Court summary judgment in favor of Enchanted Hills Community Association, defendant below and appellee herein. Betty Clark, plaintiff below and appellant herein, assigns the following error for review:


         {¶ 2} Appellee is a homeowners' association that has been in existence since 1970. Appellant owns land located within the boundaries of the homeowners' association. Throughout the years, appellant apparently has had some disputes with appellee. Appellant's complaint giving rise to the present appeal sought a declaration regarding the parties' rights and obligations under the documents she attached to her complaint, including deeds, articles of incorporation, amended articles of incorporation, a 2010 settlement agreement, a 2012 trial court judgment from an action between appellee and other association members, and our 2014 decision that affirmed the trial court's 2012 judgment. Appellant alleged that "[a] difference has arisen between [appellant] and [appellee] concerning the construction and/or validity of [appellant]'s ownership rights under her deeds, the rights of [appellee], subject to [appellant], to legally and properly govern and manage the Enchanted Hills Community Association." Appellant requested "a Declaratory Judgment from the Court declaring the rights, status and other legal relations of the parties hereto including, but not limited to the rights of [appellant] under her deeds, the rights of the parties hereto under all of the documents attached to [appellant]'s Complaint and marked as Exhibits A through Q inclusive, the rights of [appellant] as a property owner to vote for each lot owned, whether or not it is being sold to a third party on land contract, as she is the legal owner, and the current legal status and continued operation of the [EHCA]."

         {¶ 3} Appellant additionally requested an order under R.C. 5312.02(D) to require appellee to "file and record their Bylaws with the Office of the Recorder in Highland County." She further asserted that if bylaws do not exist, then the court should order appellee "to call and hold a meeting to draft and adopt Bylaws in accordance with [R.C.] 1702.22 and [R.C.] 5312.02, so that the [appellee] will have proper regulations for its governance."

         {¶ 4} Appellee answered and filed a counterclaim that alleged that appellant owes $700 in past due homeowners' association fees.

         {¶ 5} On September 11, 2015, appellant filed a summary judgment motion. In her motion, she requested "an order denying the [appellee] the right to continue to operate as the homeowners association * * * until such time as they are able to properly enact Bylaws to govern the operation of the [EHCA] and have filed the same with the Highland County Recorder as required by [R.C.] 5312.02(D)."

         {¶ 6} On October 15, 2015, appellee filed a summary judgment motion and filed a separate response to appellant's summary judgment motion. Appellee alleged that no genuine issues of material fact remain regarding appellant's right to vote at annual or special meetings of the homeowners' association. Appellee asserted that it did not dispute whether appellant "has the right to vote at annual and special meetings of the homeowner's association to the same extent as all other lot owners." Appellee further asserted that no genuine issue of material fact remained as to whether appellant "must pay a maintenance charge of $50.00 per lot for the first lot owned and $10.00 for each additional lot owned * * *." Appellee also claimed that appellant "acknowledges" that bylaws exist.

         {¶ 7} On April 4, 2016, the trial court granted appellee summary judgment. The court determined that appellant's complaint asserted that appellee does not have bylaws and that without bylaws appellee cannot operate as a lawful entity. The court found, however, that appellant's "position fails to consider the legal distinction between 'restrictive covenants' that run with the land and 'bylaws.'" The court further noted that this court (the Fourth District Court of Appeals) previously "recognized the existence of current and enforceable bylaws for the [EHCA]. These bylaws were implicitly recognized by the trial court in that proceeding as well as in the previous litigation involving this Plaintiff * * *, and may be amended as provided by the declaration and/or applicable statute." The court thus "enter[ed] summary judgment in favor of [appellee] as to each claim of [appellant] and overrules [appellant]'s motion for summary judgment." The court additionally found "no just cause for delay." This appeal followed.

         {¶ 8} Before we can review the merits of appellant's assignment of error, we first must determine whether we have jurisdiction to do so. Courts of appeals have jurisdiction to "affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district." Section 3(B)(2), Article IV, Ohio Constitution. "As a result, '[i]t is well-established that an order [or judgment] must be final before it can be reviewed by an appellate court. If an order [or judgment] is not final, then an appellate court has no jurisdiction.'" Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d 519, ¶14, quoting Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). "An order is a final, appealable order only if it meets the requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B)." Lycan v. Cleveland, 146 Ohio St.3d 29, 2016-Ohio-422, 51 N.E.3d 593, ¶21, citing Gehm at ¶15. In the event that the parties involved in the appeal do not raise this jurisdictional issue, then the appellate court must sua sponte raise it. Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus; Whitaker-Merrell v. Geupel Co., 29 Ohio St.2d 184, 186, 280 N.E.2d 922 (1972).

         {¶ 9} R.C. 2505.02(B) defines the characteristics of a final order and states in relevant part:

An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it ...

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