Court of Appeals of Ohio, Eighth District, Cuyahoga
GEORGETOWN OF THE HIGHLANDS CONDOMINIUM OWNERS' ASSOCIATION PLAINTIFF-APPELLEE
STELLA NSONG, ET AL. DEFENDANTS-APPELLANTS
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Michael A. Heller Mike Heller Law,
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.
Bank of New York Trust Company, N.A., as Successor Kimberly
Y. Smith Rivera McGlinchey Stafford, P.L.L.C.
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
State of Ohio Department of Taxation Mike DeWine Ohio
BEFORE: Jones, J., E.T. Gallagher, P.J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION
A. JONES, SR, JUDGE
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.
Factual and Procedural History
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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 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."
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.
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.
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.
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] 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.
Law and Analysis
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."
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