2019 Ohio 594
Ohio Ct. App.2019Background
- Melissa Messersmith owns a condominium in the Bay Pointe development subject to a recorded Declaration requiring payment of HOA assessments; she stopped paying after March 2, 2015.
- The HOA recorded a lien (Sept. 1, 2015) and, after PHH Mortgage dismissed its separate foreclosure, the HOA pursued a cross-claim to collect unpaid assessments, late fees, lien costs, and attorney fees.
- The parties stipulated many facts (including that Messersmith owed assessments and that the HOA’s attorney’s rate and billed work were "performed"), but did not submit the Declaration text to the court.
- The magistrate granted summary judgment to the HOA awarding assessments, costs, and attorney fees; the trial court adopted the magistrate’s decision but its final entry contained inconsistent fee amounts.
- On appeal Messersmith challenged only the attorney-fee award (both entitlement basis and amount), arguing lack of contractual authority in the record and that some fees were unnecessary or caused by the HOA’s conduct.
- The appellate court affirmed HOA entitlement under R.C. 5312.13 but reversed and remanded as to the amount of fees because of (1) inconsistencies in the judgment as to the fee total and (2) unresolved factual disputes whether some billed work was unnecessary or caused by HOA/counsel conduct.
Issues
| Issue | Messersmith's Argument | Association's Argument | Held |
|---|---|---|---|
| Whether HOA may recover attorney fees | Fees only allowed if Declaration (contract) provides for them; Declaration not in record so entitlement unclear | R.C. 5312.13 authorizes award of court costs and reasonable attorney fees for enforcement of recorded covenants | HOA entitled to fees as matter of law under R.C. 5312.13 given stipulation that owner violated recorded covenant |
| Whether the trial court properly awarded the specific fee amount | Fees unreasonable; some work unnecessary or caused by HOA/attorney’s refusal to communicate; affidavit insufficient | Fee affidavit and stipulation that work was "performed" and rates reasonable support award | Reversed as to amount: judgment contained inconsistent totals and genuine factual issues about necessity/duplicative work; remanded for further proceedings |
| Whether HOA had obligation to accept partial tender/mitigate damages | HOA’s refusal to accept partial payment and to communicate caused extra fees; equitable considerations should reduce fees | HOA not required to accept partial payment (would be waiver) and failure-to-mitigate defense was not pleaded | Court found HOA not required to accept less than full amount; but mitigation evidence bears on necessity of fees — factual dispute remains for fee determination |
| Sufficiency of attorney’s affidavit as support for fees | Affidavit insufficient to prove necessity/reasonableness of each entry; more development needed | Affidavit (amended) plus stipulation that work was performed and rate reasonable is sufficient | Affidavit/stipulation did not resolve necessity/duplication issues; remand required for proper fee calculation and resolution of duplicative entries |
Key Cases Cited
- Nottingdale Homeowners' Assn. v. Darby, 33 Ohio St.3d 32 (Ohio 1987) (upholds enforcement of declaration provisions requiring defaulting unit owner to pay association’s attorney fees so long as fees are fair, just, and reasonable)
- Gibney v. Toledo Bd. of Edn., 73 Ohio App.3d 99 (6th Dist. 1991) (defines categories of unreasonably expended hours: excessive, duplicative, or unnecessary)