Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from the Austintown Area Court, No. 4, of Mahoning
County, Ohio Case No. 2015 CVF 00350 AUS
Plaintiff-Appellant Attorney Christopher Sammarone
Defendant-Appellee Attorney William Fowler
Mary DeGenaro Hon. Cheryl L. Waite Hon. Carol Ann Robb
Plaintiff-Appellant, Gary Brainard, appeals the trial
court's judgment in favor of Defendant-Appellee, The
Villas at Bella Terra Condominium Association. For the
following reasons, Brainard's assignments of error are
meritless, and this matter is affirmed.
and Procedural History
The Villas at Bella Terra is a condominium complex. Brainard
purchased a unit in 2004. Bella Terra is governed by an
Association created and controlled by a declaration and
bylaws and governed by a board. Brainard, as a unit owner is
a member of the Association and subject to its regulations.
The interior of the unit is exclusively owned by the
Association member. All other elements of the property,
including the exterior of a unit, are considered common areas
that are owned by all of the members of the Association in a
proportionate share. The repair and maintenance of the
exterior of each unit is the responsibility of the
Association. With respect to the repair and maintenance of
the common areas, the condominium documents provide as
The Association, to the extent and at such times as the
Board, in its exercise of business judgment determines to
allocate funds therefor, shall maintain, repair and
replace...the exterior portions of all buildings and
improvements which are part of the Common Areas....
IX, Maintenance and Repair, Declaration and Bylaws.
Prior to August of 2013, Bella Terra contracted with a
landscaper to install mulch around the shrubs and exterior of
the units. Because of the mulch's high moisture content,
a fungus developed causing a black discoloration on the
vinyl, spouting, shutters, porch, columns, and wrap-around
metal on Brainard's unit.
Brainard complained about the discoloration to Bella
Terra's Board and was told he needed to file a written
complaint. On August 29, 2013, Brainard filed a complaint
setting forth the damage to the exterior of his unit. In
response, board members conducted internet research and tried
several different cleaning options, none of which proved
successful. The Board also had several contractors evaluate
the situation. Although their appearance was diminished, the
On April 30, 2015, Brainard filed a two-count complaint in
the trial court alleging that Bella Terra failed to meet its
duty to make prompt "repairs and restore damage or
destruction of all or any part of the common elements"
of the Bella Terra property. Further, Brainard alleged that
Bella Terra breached its contract with the ...