Court of Appeals of Ohio, Fourth District, Highland
Koogler, Hillsboro, Ohio, for appellant
Schott Ferguson, Cincinnati, Ohio, for appellee
DECISION AND JUDGMENT ENTRY
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:
TRIAL COURT ERRED BY GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT, AS A GENUINE ISSUES OF MATERIAL FACT EXIST
REGARDING THE VALIDITY OF THE ENCHANTED HILLS COMMUNITY
ASSOCIATION'S SELF-PURPORTED BYLAWS."
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'
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 ...