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Georgetown of Highlands Condominium Owners' Association v. Nsong

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 17, 2018

GEORGETOWN OF THE HIGHLANDS CONDOMINIUM OWNERS' ASSOCIATION PLAINTIFF-APPELLEE
v.
STELLA NSONG, ET AL. DEFENDANTS-APPELLANTS

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-854121

          ATTORNEY FOR APPELLANT Michael A. Heller Mike Heller Law, L.L.C.

          ATTORNEYS FOR APPELLEES For Georgetown of the Highlands Condominium Association Jared S. Klebanow Klebanow Law, L.L.C. Steven B. Potter Dinn, Hochman & Potter, L.L.C.

          For Bank of New York Trust Company, N.A., as Successor Kimberly Y. Smith Rivera McGlinchey Stafford, P.L.L.C.

          For Internal Revenue Service Ruchi V. Asher James R. Bennett U.S. Attorney's Office, Northern District

          Cuyahoga County Treasurer Michael C. O'Malley Cuyahoga County Prosecutor Adam D. Jutte Assistant County Prosecutor

          For State of Ohio Department of Taxation Mike DeWine Ohio Attorney General

          BEFORE: Jones, J., E.T. Gallagher, P.J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR, JUDGE

         {¶1} Defendant-appellant, Stella Nsong ("Nsong"), appeals from the trial court's June 20, 2017 judgment that overruled Nsong's objections to a magistrate's decision, and adopted the magistrate's decision. For the reasons that follow, we affirm.

         I. Factual and Procedural History

         Georgetown v. Nsong

         {¶2} Plaintiff-appellee Georgetown of the Highlands Condominium Owners' Association is a not-for-profit corporation organized under the laws of Ohio in accordance with R.C. Chapter 5311. It acts as the association of unit owners for the Georgetown of the Highlands condominiums in Euclid, Ohio. Nsong owned a condominium unit on the property.

         {¶3} By virtue of owning the property, Nsong was bound by the association's declaration and its bylaws. Under the declaration, she was bound to pay the association's monthly assessments, which were charged against her property for her share of the common expenses incurred for administration and maintenance of common areas, facilities, and other services provided to all of the unit owners.

         {¶4} In November 2015, the association filed this complaint in foreclosure against Nsong, alleging that she failed to pay her share of common expenses and owed the association in the amount of $7, 417.48 as of October 2015. The association alleged that it had a continuing lien on the property for the unpaid fees. Other persons and entities who may have had a claim or interest in the property were named as defendants as well, including the United States of America.

         Procedural History

         {¶5} The procedural history of this case spans from the filing of the complaint in November 2015 through the summer of 2017, when the judgment now being appealed was issued. The history, for the purpose of this appeal, is detailed below.

         {¶6} After the complaint was filed in November 2015, the trial court referred the matter to a foreclosure magistrate. As mentioned, in addition to Nsong, there were several other people and entities named as defendants and, as such, service on all the defendants took awhile. In regard to Nsong, certified service to her went unclaimed two times; service was perfected on her by regular mail in January 2016.

         {¶7} In January 2016, the United States of America filed an answer. In February 2016, Nsong, pro se, filed a "response" to the complaint, "disputing the validity of a portion" of the claim. In March 2016, the trial court put forth an entry stating that the association had perfected service on all the defendants and ordering the association to proceed with the case, including the filing of any dispositive motions.

         {¶8} In May 2016, Nsong, by and through counsel, sought leave to file an answer; the trial court granted the request and Nsong's answer was timely filed. The court then ordered the association to file "any dispositive motions necessary to address defendant Stella Nsong's answer." The association timely filed a motion for summary judgment on July 11, 2016.

         {¶9} Thereafter, Nsong requested that the matter be referred to mediation. Over the association's objection, the trial court granted Nsong's request, and the matter was referred to mediation in August 2016. Discovery and motion practice were stayed during the mediation proceedings.

         {¶10} The mediation was held on November 22, 2016, but the case did not settle and therefore was returned to the magistrate for further proceedings. On December 5, 2016, the magistrate issued an order granting the association's motion for summary judgment in its favor on its complaint and against Nsong. Nsong had not filed an opposition to the summary judgment motion. The association had requested attorney fees; the trial court stated that the issue would be addressed at a hearing.

         {¶11} On December 13, 2016, Nsong filed two motions: one for relief from judgment, and the other for leave to file counterclaims. The court granted her leave, and she timely filed counterclaims on January 19, 2017. The motion for relief from judgment was denied.

         Nsong v. Georgetown

         {¶12} In her counterclaims against the association, Nsong alleged that in 2015, while she was out of town, the association entered her unit on the "pretense" of repairing a pipe, and engaged in "destructive activities." Specifically, Nsong alleged that the association "dug up" her kitchen and bathroom and "left it in damaged condition, to wit, [with] mountains of debris and huge holes * * *." She contended that the association's actions created a defective and unsafe condition that put her at risk of harm and did actually harm her. She asserted relief based on the following claims: (1) trespass to land/trespass to chattel; (2) negligence; (3) discharge of lien; (4) invasion of privacy/intrusion of seclusion; and (5) breach of contract.

         {¶13} After the association timely answered the counterclaims, on January 30, 2017, the trial court ordered "the parties * * * to submit, within forty-five (45) days of the date of this order, any dispositive motions necessary to address the defendant's counterclaims." On March 10, 2017, the association filed a motion for summary judgment on Nsong's counterclaims.

         {¶14} Nsong requested an extension of time to file a dispositive motion relative to her counterclaims. In ruling on her request, the magistrate noted the parties were "previously granted sufficient leave (of forty-five (45) days) to file dispositive motions to address the counterclaims in this case and the defendant/counterclaimant only moved the court for additional time to file her own dispositive motion five (5) days after the expiration of the period of leave described above."

         {¶15} Notwithstanding the above mentioned, the trial court granted Nsong leave until April 3, 2017, to file a motion for summary judgment relative to her counterclaims. Nsong never filed a dispositive motion, however; nor did she oppose the association's motion for summary judgment. On April 13, 2017, the magistrate granted the association's motion for summary judgment on Nsong's counterclaims.

         {¶16} In May 2017, the magistrate issued a decision with findings of fact and conclusions of law. Defendant, the United States of America, objected to the decision because it failed to include "equity of redemption" language. The magistrate withdrew his May 2017 decision, and overruled as moot the federal government's objection. The magistrate thereafter issued another decision with findings of fact and conclusions of law on May 18, 2017.

         {¶17} On June 1, 2017, Nsong filed objections to the magistrate's decision. Meanwhile, a hearing was held on the association's request for attorney fees. On June 20, 2017, the trial court overruled Nsong's objections, adopted the magistrate's decision, and among other things awarded the association $7, 417.48 in unpaid fees and $6, 397.50 in attorney fees. The court also awarded judgment in favor of the United States of America. This appeal ensues; Nsong sets forth ten assignments of error.

         {¶18} The first assignment of error relates to summary judgment in favor of the association on its complaint; the second assignment asserts that the trial court erred in "ordering [Nsong] to file a dispositive motion within 35 [sic][1] days of her counterclaim, without allowing for discovery or other litigation"; assignments of error three through seven relate to summary judgment in favor of the association on her counterclaims; the eighth assignment of error relates to the trial court's judgment against her in the amount of $7, 417.78; the ninth assignment of error relates to the award of $6, 397.50 to the association for attorney fees; and the tenth assignment of error relates to the judgment in favor of the federal government in the amount of $160, 280.33.

         II. Law and Analysis

         Summary Judgment Standard

         {¶19} Summary judgment is proper when: "(1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving party, that party being entitled to have the evidence construed most strongly in his favor." Frano v. Red ...


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