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South Park Manor Condominiums Unit Owners' Association v. Clarendon Group, Inc.

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 9, 2017

SOUTH PARK MANOR CONDOMINIUMS UNIT OWNERS' ASSOCIATION PLAINTIFF-APPELLEE
v.
CLARENDON GROUP, INC. DEFENDANT-APPELLANT

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-858828

          ATTORNEY FOR APPELLANT Jason L. Carter.

          ATTORNEYS FOR APPELLEE Rachel Kuhn Joseph E. DiBaggio Darcy Mehling Good Kaman & Cusimano, L.L.C.

          BEFORE: Keough, A.J., E.T. Gallagher, J., and Stewart, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, A.J.

         {¶1} This appeal is before the court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1. The purpose of an accelerated appeal is to allow this court to render a brief and conclusory opinion. State v. Priest, 8th Dist. Cuyahoga No. 100614, 2014-Ohio-1735, ¶ 1.

         {¶2} South Park Manor Condominiums is a 94-unit apartment-style brick building located at 13800 Fairhill Road in Shaker Heights, Ohio. Each unit owner is a member of plaintiff-appellee, South Park Manor Condominiums Unit Owners' Association (the "Association"), a nonprofit corporation that acts on behalf of the unit owners, including collecting monthly assessments and fees for maintenance, repair, and insurance of the common areas.

         {¶3} Defendant-appellant, the Clarendon Group, Inc. (the "Clarendon Group"), is a commercial real estate services and advisory firm that took title to Unit No. 318 at South Park Manor Condominiums on January 31, 2013. Upon taking title to the condominium, it became a member of the Association, obligated to pay monthly fees and assessments for common expenses. When the Clarendon Group did not timely pay in full the monthly fees and assessments, the Association filed liens pursuant to R.C. 5311.18 to protect its interest in collecting the unpaid fees and assessments. In August 2015, the Clarendon Group stopped making any payments whatsoever. On February 11, 2016, the Association filed a complaint to foreclose its liens.

         {¶4} The case was referred for mediation but did not settle. Subsequently, on December 2, 2016, the Association filed a motion for summary judgment. The Clarendon Group did not oppose the motion, nor file a Civ.R. 56(F) motion seeking additional time for discovery. On January 13, 2017, the trial court entered judgment granting the Association's motion and ordering foreclosure. The Clarendon Group did not appeal from this decision.

         {¶5} Instead, on March 30, 2017, nearly two and a-half months later and three days before the scheduled sheriff's sale, the Clarendon Group filed a motion to stay the sale and for relief from judgment pursuant to Civ.R. 60(B). The trial court denied the motion, and this appeal followed.

         {¶6} In its single assignment of error, the Clarendon Group asserts that the trial court abused its discretion in denying its Civ.R. 60(B) motion for relief from judgment.

         {¶7} A reviewing court will not disturb a trial court's decision regarding a Civ.R. 60(B) motion absent an abuse of discretion. State ex rel. Russo v. Deters, 80 Ohio St.3d 152, 153, 684 N.E.2d 1237 (1997). To prevail on a Civ.R. 60(B) motion for relief from judgment, the moving party must demonstrate (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (B)(5);[1] and (3) the motion is made within a reasonable time, and where the grounds for relief are Civ.R. 60(B)(1), (2), or (3), not more than one year after the judgment was entered. GTE Automatic Elec. v. ARC Ind, 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. If any of these three requirements is not met, the motion is properly overruled. Svoboda v. Brunswick, 6 Ohio St.3d 348, 351, 453 N.E.2d 648 (1983).

         {¶8} In its Civ.R. 60(B) motion for relief from judgment, the Clarendon Group asserted that during the litigation, it had investigated and researched various "management issues" with the Association that allegedly impacted the amount of the assessed condominium fees, but it did not have the "specificity and details necessary to formulate a defense to the judgment amount and the impending foreclosure action." It asserted that it had recently come into possession of "various documents" regarding "mismanagement" by the Association, however, and that this newly discovered evidence would provide grounds for the Clarendon Group to challenge the judgment amount sought by the Association. It further asserted that the Association's complaint was defective because the Association had "failed to attach an accounting of the defendant's debts or evidence of the amount of the lien."

         {¶9} It is well-established that Civ.R. 60(B) cannot be used as a substitute for an appeal. Doe v. Trumbull Cty. Children Servs. Bd,28 Ohio St.3d 128, 502 N.E.2d 605 (1986), ...


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