WILDBERRY HOMEOWNERS ASSOCIATION, INC. Appellee
WILLIAM SCHUFFERT, et al. Appellants
FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
LORAIN, OHIO CASE No. 14CV184344
APPEARANCES: KENNETH R. RESAR, Attorney at Law, for
MICHAEL R. STAVNICKY, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
A. SCHAFER, Judge.
Defendant-Appellant, William Schuffert, appeals the judgment
of the Lorain County Court of Common Pleas granting summary
judgment in favor of Plaintiff-Appellee, Wildberry Homeowners
Association, on its complaint for foreclosure. For the
reasons set forth below, we reverse and remand this matter
for further proceedings.
Wildberry Homeowner's Association, Inc.
("Association") is a homeowner's association
incorporated under the laws of Ohio and governed by the
Declaration of Covenants and Restrictions of Wildberry, Avon
Lake ("Declaration"). In October 2005, Schuffert
purchased real property on Waterberry Court in Avon Lake,
Ohio, which is subject to the Declaration. As relevant to
this appeal, the Declaration requires all members of the
Association to pay annual assessments and maintenance fees,
which are collected periodically over the course of a
calendar year. Additionally, the Declaration allows the
Association to levy special assessments when certain
requirements are met. In addition to the monetary
obligations, the Declaration includes covenants and
restrictions upon the subject properties and Association
members. The Declaration also permits the Association to
pursue legal action against the responsible owner for a
delinquent assessment and to foreclose the lien against the
It is undisputed that beginning on July 1, 2012, Schuffert
stopped paying all assessments and fees to the Association.
Schuffert states that he stopped paying the fees and
assessments due to a $437.00 bill from the Association for
"legal fees" dated November 11, 2011, which he
disputes. Ultimately, on November 27, 2013, the Association
filed a Notice of Lien against Schuffert's Waterberry
Court property. Despite receiving the Notice of Lien and
multiple letters from the Association concerning the
delinquent assessments and fees, Schuffert failed to pay the
full amount due and owing. Thus, on August 26, 2014, the
Association filed a complaint for foreclosure in the Lorain
County Court of Common Pleas. The complaint named Schuffert,
JPMorgan Chase Bank, N.A., and the Lorain County Treasurer as
defendants. Each named defendant filed an answer in response
to the Association's complaint. As relevant to this
appeal, Schuffert denied the allegations set forth in the
Association's complaint. The matter then proceeded
through the discovery process.
On March 31, 2015, the Association filed a motion for summary
judgment arguing that no genuine issues of material fact
exist concerning Schuffert's liability and that it is
entitled to judgment as a matter of law. Specifically, as a
lienholder on Schuffert's Waterberry Court property, the
Association argued that it is entitled by law to foreclose on
the property in question and have it sold at sheriffs sale.
Schuffert subsequently filed a brief in opposition to the
Association's motion for summary judgment, to which the
Association filed a brief in support of its summary judgment
motion. On July 24, 2015, the trial court granted the
Association's motion for summary judgment and issued a
decree in foreclosure.
Schuffert filed this timely appeal and raises one assignment
of error for our review.
Assignment of Error
The trial court was in error when it issued the judgment
entry and decree of foreclosure on July 24, 2015[, ] granting
the Wildberry Homeowners Association's motion for summary
judgment as there existed genuine issues of material facts
and the Wildberry Homeowners Association was not entitled to
judgment as a matter of law.
In his sole assignment of error, Schuffert argues that the
trial court erred by granting Wildberry Homeowners
Association's motion for summary judgment. Specifically,
Schuffert challenges: (1) the trial court's determination
that the Association was entitled to assess attorney fees
prior to obtaining a judgment; (2) the trial court's
determination that the Association was entitled to attorney
fees since the record was devoid of any evidentiary materials
from which it could have concluded that such fees were
reasonable; (3) the trial court's determination that
Schuffert could not raise the Association's failure to
comply with and enforce the Declaration as a defense to the
foreclosure action; and (4) the trial court's failure to
consider Schuffert's argument that the attorney fees at
issue were unreasonable because the Association had acted in
We review an award of summary judgment de novo. Grafton
v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).
Summary judgment is only appropriate where (1) no genuine
issue of material fact exists; (2) the movant is entitled to
judgment as a matter of law; and (3) the evidence can only
produce a finding that is contrary to the non-moving party.
Civ.R. 56(C). Before making such a contrary finding, however,
a court must view the facts in the light most favorable to