{¶ 3} Spring Creek Condominium Association, (hereinafter "Association") is a non-profit corporation organized pursuant to Ohio Revised Code Chapter
{¶ 4} On December 4, 2006, the Association members adopted an amendment to the Declaration. During the amendment process, seventy-five percent (75%) of the Association members voted to execute a Twentieth Amendment to the Declaration. The Twentieth Amendment reduced the number of rental units from twenty-five percent (25%) to five percent (5%). The amendmеnt was duly recorded on December 5, 2006, in the Fairfield County Recorder's Office. *3
{¶ 5} On November 29, 2007, pursuant to R.C.
{¶ 6} On December 27, 2007, the Association filed an Answer and motion to stay the proceedings pending arbitration. In the Answer, the Association denied any violation of Article XIX, Section I (A)(i)-(iv).1 In support of the motion to stay, the Association argued that Article XX, Section 2, of the Association's Declaration states thаt in the event of a dispute between the Association and a unit owner, the dispute must first be submitted to arbitration in accordance with Chapter
{¶ 7} On January 25, 2008, the appellants filed a memorandum in opposition to the Assоciation's motion for stay. In response, the appellants argued that the Declaration's arbitration clause, i.e. Article XX, Section 2, enacted in 1998, was not *4
controlling in this case. Appellants argued that their lawsuit was brought pursuant to R.C.
{¶ 8} On February 4, 2008, the Association filed a reply to appellants' response to the motion to stay. The Association argued that R.C
{¶ 9} On February 4, 2008, after considering the arguments of the parties, the trial court held:
{¶ 10} "The Court begins by noting that the amendment which the Board made in this matter [i.e., changing the percentage of units permitted to be rented from 25% to 5%] does not appear to fall within R.C.
{¶ 11} The trial court further states:
{¶ 12} "Here, as Unit Owners, the Plaintiffs are subject to the Declarations and Bylaws of the Spring Creek Condominium Association. Further, while R.C.
{¶ 13} "Upon consideration of the parties' respective Motion and Memorandum Contra, and reviewing the pertinent law, the Court is satisfied that the issues raised in this matter are referable to arbitration pursuant to R.C.
{¶ 14} Thereafter, the trial court granted the Association's motion for stay and ordered the matter to arbitration. It is from this judgment that appellants seek to appeal setting forth the following assignment of error: *6
{¶ 15} "THE TRIAL COURT ERRED IN DETERMINING THAT R.C.
{¶ 16} In their sole assignment of error, appellants argue that the trial court erred in finding that the amendment to the declaration which changed the percentage of units which could be rented from twenty-five percent (25%) to five percent (5%) does not fall within R.C.
{¶ 17} We first address the question of the proper standard of review tо apply to the instant issue. Normally, the determination of whether a dispute is subject to a contractual arbitration clause rests within the sound discretion of the court. Fortune v. Castle Nursing Homes (2005),
{¶ 18} R.C.
{¶ 19} "(a) To meet the requirements of institutional mortgagees, guarantors and insurers of first mortgage loans, the federal national mortgage association, the federal home loan mortgage corporation, the federal housing administration, the veterans administration, and similar institutions;
{¶ 20} "(b) To meet the requirements of insurance underwriters; *7
{¶ 21} "(c) To bring the Declaration into compliance with this chapter;
{¶ 22} "(d) To correct clerical or typographical errors or obvious factual errors in the declaration or an exhibit to the declaration;
{¶ 23} "(e) To designate a succеssor to the person named to receive service of process for the unit owners association. If the association is incorporated in this state, this may be accomplished by filing with the secretary of state an appropriate change of statutory agent designation." R.C.
{¶ 24} In the event that the boаrd of directors amends the declaration without a vote of the unit owners for any of the reasons set forth in R.C.
{¶ 25} "Any unit owner who is aggrieved by an amendment to the declaration that the board of directors makes pursuant to division (E)(1) of this section may commence a declaratory judgment action to have the amendment declared invalid as violative of division (E)(1) of this section. Any action filed pursuant to division (E)(3) of this section shall be filed in the appropriate court of common pleas within one year from the date of the recordation of the amendment."
{¶ 26} Appellants argue that the Twentieth Amendment seeks to change a fundamental purpose of the condominium units. Appellants argue that when a fundamental purpose of a unit is sought to be changed, the Declaration and Bylaws require one hundred percent (100%) approval of the unit owners. Appellants argue that the seventy five percent (75%) approval which was оbtained for the amendment amounted to a void vote. Appellants argue that because the vote was void, the passage of the resolution to amend was solely an action of the board of directors without a *8
member vote, which falls within R.C.
{¶ 27} We first note that appellants' argument that the vote was void relies for its validity on a final decision in their favor of the ultimate issue in the case: whether the vote of 75% of the unit owners was legally and contractually sufficient to pass the resolution changing the percentage of units which could be rented, or whether the resolution affected a fundamental purpose and therefore required 100% approval pursuant to Article XIX, Section 1(a)(iv) of the Declarations and Bylaws. Appellants in essence asked the trial court and ask this court to make a decision in their favor on the merits of their case in order to determine that the statute applies and the case should not be referred to arbitration. We decline to do so at this stage in the proceedings.
{¶ 28} Further, we disagree with appellants' conclusion that if the vote is void because it was not passed by the required number of unit owners, the amendment then becomes one made by the board of directors without a vote of the unit owners within the meaning of R.C.
{¶ 29} R.C.
{¶ 30} In this case, Article XX, Section 2 of the Declaration and Bylaws of the Spring Creek Condominiums provides, "In the event of аny dispute between the Association and any unit owner or occupant that cannot be settled by agreement between them, no Unit Owner or Unit Owners shall institute legal proceedings against the Association without first submitting the dispute to arbitration in accordance and pursuant to the provisions of the arbitration law of the State of Ohio then in effect (presently Chapter
{¶ 31} R.C.
{¶ 32} Ohio public policy favors the enforcement of private arbitration agreements. Kelm v. Kelm (1993),
{¶ 33} Upon review, we cоncur with the trial court that "while R.C.
{¶ 34} For these reasons, we find that the trial court did not err as a matter of law in staying the trial court proceedings and referring the matter to arbitration. The assignment of error is overruled. *11
{¶ 35} Accordingly, the judgment of the Fairfield County Common Pleas Court is affirmed.
By: Edwards, J. Gwin, P.J. concurs and Farmer, J. dissents separately *12
{¶ 36} I respectfully dissent from the majority's opinion that it is premature to decide if in fact any action by the Association has occurred. The gravamen of appellants' claim is whether a reduction from twenty-five percent (25%) to five percent (5%) for rental occupancy requires a vote of seventy-five percent (75%) or one hundred percent (100%) of the Association members to be valid.
{¶ 37} If one hundred percent (100%) is required, there is no Twentieth Amendment and the vote to reduce the number of units for rental occupancy is void. If the vote is void, the arbitration clause does not take affect because there was an "amendment to the declaration" which was an action taken by the board of directors without a member vote. The matter simply becomes a unilateral action of the board of directors which is prohibited by R.C.
{¶ 38} I would remand the matter to the trial court to dеtermine this threshold issue. *13