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Brainard v. The Villas At Bella Terra Condominium Association

Court of Appeals of Ohio, Seventh District, Mahoning

December 29, 2017

GARY BRAINARD PLAINTIFF-APPELLANT
v.
THE VILLAS AT BELLA TERRA CONDOMINIUM ASSOCATION DEFENDANT-APPELLEE

         Civil Appeal from the Austintown Area Court, No. 4, of Mahoning County, Ohio Case No. 2015 CVF 00350 AUS

          For Plaintiff-Appellant Attorney Christopher Sammarone

          For Defendant-Appellee Attorney William Fowler

          Hon. Mary DeGenaro Hon. Cheryl L. Waite Hon. Carol Ann Robb

          OPINION

          DEGENARO, J.

         {¶1} 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.

         Facts and Procedural History

         {¶2} 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.

         {¶3} 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 follows:

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....

         Article IX, Maintenance and Repair, Declaration and Bylaws.

         {¶4} 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.

         {¶5} 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 spots remained.

         {¶6} 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 ...


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