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Dover West Condominium Unit Owners' Association v. Carandang

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 14, 2017

DOVER WEST CONDOMINIUM UNIT OWNERS' ASSOCIATION PLAINTIFF-APPELLEE
v.
JOCELYN T. CARANDANG, ET AL. DEFENDANTS-APPELLANTS

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-840434

          ATTORNEY FOR APPELLANTS L. Bryan Carr

          ATTORNEYS FOR APPELLEE Joseph E. DiBaggio Robert E. Kmiecik Kaman & Cusimano, L.L.C.

          BEFORE: S. Gallagher, J., Kilbane, P.J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, JUDGE.

         {¶1} Defendant-appellant Jocelyn Carandang ("appellant") appeals from the denial of a motion for relief from judgment. Upon review, we affirm the decision of the trial court.

         {¶2} On February 13, 2015, plaintiff-appellee Dover West Condominium Unit Owners' Association, Inc. ("the Association"), filed a complaint for preliminary and permanent injunction against appellant. The Association alleged in the complaint that appellant was in violation of the Association's declaration and bylaws by engaging in nuisance behavior on the condominium property. The alleged nuisance behavior included and was not limited to "harassing other residents, filing false complaints against other residents * * *, making loud banging noises in her unit, slamming doors in her unit, yelling and screaming in her unit, throwing items down the stairs, leaving garbage in the hallway, [and] leaving notes on other residents' doors[.]" The Association also alleged that appellant "bangs on other residents' doors and tries to forcibly enter other units, while yelling and screaming and acting aggressively[.]" The Association further alleged that appellant had refused to abate the violation despite written demands. The Association sought to enforce its declaration and bylaws and to obtain injunctive relief pursuant to R.C. 5311.19. The Association also sought reimbursement of all costs, expenses, and attorney fees incurred with regard to the action, which enforcement costs were recoverable under the Association's declaration and bylaws.

         {¶3} Appellant appeared pro se at the proceedings in the matter, but did not file an answer. On October 6, 2015, the Association filed a motion for default judgment with a supporting affidavit attesting to the allegations in the complaint. Following an evidentiary hearing, the trial court granted the motion for default judgment and permanently enjoined appellant from creating a nuisance on the property. Further, the court recognized the Association was entitled to recoupment of its enforcement costs pursuant to the Association's declaration and bylaws. The court ordered appellant to reimburse the Association in the amount of costs and attorney fees incurred in the enforcement of the declaration in an amount to be determined. On February 9, 2016, the trial court entered a judgment in the amount of $14, 328.20 plus costs in favor of the Association and against Carandang. No direct appeal was filed.

         {¶4} Just over one year later, on February 17, 2017, appellant filed a motion for relief from judgment. The trial court denied the motion. In its judgment entry, the trial court set forth the following facts:

This case was an action brought by a condominium association against one of its residents due to her ongoing disruptive and threatening conduct that created a nuisance for other residents in the building. Defendant appeared at all proceedings pro se but persistently refused to file an answer or retain counsel despite repeated warnings by the Court. * * *
On November 3, 2015, the Court held the hearing on Plaintiffs Motion for Default Judgment and allowed Plaintiff to present evidence supporting its request for injunctive relief. Defendant appeared late to the proceedings. The Court did not allow Defendant to cross examine the witness because her conduct was argumentative and digressed from the evidence at issue but permitted the Defendant to lodge arguments and objections directly to the Court. Notably, in doing so, Defendant fully admitted to repeatedly engaging in disruptive and threatening conduct.
Based on the evidence presented, including Defendant's own statements to the Court about her actions, the Court granted Plaintiffs Motion for Default Judgment on November 5, 2015. Pursuant to the condominium instruments and R.C. 5311.23, Plaintiff was entitled to recover its attorneys' fees which were granted by order dated February 9, 2016.

         {¶5} The trial court proceeded to consider whether Civ.R. 60(B) relief was warranted. The court found that appellant had failed to present a meritorious defense; that her motion was untimely as to arguments raised under Civ.R. 60(B)(1), (2), or (3); that Civ.R. 60(B)(4) did not apply; and that her decision to proceed as a pro se litigant did not warrant relief under Civ.R. 60(B)(5). The trial court emphasized that appellant "was repeatedly cautioned about proceeding pro se, she was allowed more than ample time to respond or seek counsel yet she refused to do so" despite every possible allowance being afforded to her during the proceedings. The court also found that the evidence established the alleged facts and that appellant admitted to repeatedly engaging in disruptive and threatening conduct.

         {¶6} As to the award of attorney fees, the trial court found that an affidavit in support of attorney fees was filed and that "Defendant failed to file any objection, argument in opposition, or defense to Plaintiff's Request for Attorney Fees." Thus, the trial court found: "There exists ...


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