Inc. v. GA 120, L.L.C.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-870901

          Kaman & Cusimano, L.L.C., Joseph E. DiBaggio, and Rachel M. Kuhn, for appellant.

          Powers Friedman Linn, P.L.L., Michael D. Linn, Rachel E. Cohen, and Thomas P. Owen, for appellee GA 120, L.L.C.

          Thomas M. Horwitz, and Bryan S. Mollohan, for appellee GA Storage, L.L.C.

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, PRESIDING JUDGE.

         {¶ 1} Plaintiff-appellant, Grand Arcade Condominium Owners' Association, Inc. ("the Association") appeals from a judgment denying its motion to appoint a receiver. In its sole assignment of error, the Association asserts:

The trial court abused its discretion in denying the Association its mandatory, statutory right to the appointment of a receiver, as set forth in R.C. 5311.18(B)(2).

         {¶ 2} Finding the appeal to be moot, we affirm the trial court's judgment. I. Procedural History and Factual Background

         {¶ 3} In October 2016, the Association filed a foreclosure complaint against defendants, GA 120, L.L.C. and GA Storage, L.L.C. GA 120 is the owner of a condominium unit located at 408 West St. Clair Avenue, Suite 120, Cleveland, Ohio ("the property"). As a condominium unit owner, GA 120 is a member of the Association pursuant to the Association's declaration and bylaws. As explained more fully below, defendant-appellee, GA Storage, holds the first mortgage on the property as well as a second mortgage.

         {¶ 4} The Association recorded a certificate of lien on the property in the Cuyahoga County Recorder's Office on August 19, 2016, for $5, 11949, which it asserted was to secure payment from GA 120 for "maintenance fees, common expenses and assessments." The Association alleged that GA 120 owed it $7, 973.08, plus interest at the rate of 10 percent as of October 21, 2016. The Association further alleged that GA 120 owed additional "maintenance fees and assessments incurred subsequent to the filing" of the complaint.

         {¶ 5} According to the preliminary judicial report attached to the complaint, a mortgage was recorded on the property on November 3, 2006, from West Sixth Associates Limited Partnership ("West Sixth Associates") to GA Storage in the amount of $1, 561, 523.23. West Sixth Associates owned the property at that time.

         {¶ 6} West Sixth Associates redeveloped 99 condominium units in several historic buildings, including The Grand Arcade, Warning Bloc, and Klein-Marks and Bair-Bloc buildings in downtown Cleveland. The buildings, which were originally built in the 1880s, are on St. Clair Avenue in the city of Cleveland's Warehouse District.

         {¶ 7} GA 120 became the property owner in August 2014. A mortgage was recorded on July 21, 2014, from GA 120 to GA Storage in the amount of $ 349, 398.08. The report further shows that another mortgage was recorded from GA 120 to GA Storage on August 19, 2016, in the amount of $5, 11949.

         {¶ 8} In August 2014, the Association was engaged in litigation with Grand Arcade, Ltd. (who owned five commercial condominium units in The Grand Arcade) over a special assessment levied by the Association to the condominium owners for replacing the windows of the historic buildings. See Grand Arcade, Ltd. v. Grand Arcade Condominium Owners' Assoc, 8th Dist. Cuyahoga No. 104890, 2017-Ohio-2760. This court upheld the trial court's determination that the special assessment was valid and that the unit owners were responsible for paying their proportional share of the capital improvement cost. Thus, GA 120, which is now the owner of the property, is also responsible for this special assessment.

         {¶ 9} When the Association filed its foreclosure complaint, the special assessment matter was still pending in this court. After this court released our opinion, Grand Arcade appealed to the Ohio Supreme Court, which did not accept the case for discretionary review on January 31, 2018. Grand Arcade, Ltd. v. Grand Arcade Condominium Owners' Assoc,151 Ohio St.3d 1506, ...