HOMEOWNERS ASSOCIATION AT ARROWHEAD BAY v. GREGORY FIDOE, et al.
CASE NO. 12 MA 136
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
March 31, 2014
[Cite as Homeowners Assn. at Arrowhead Bay v. Fidoe, 2014-Ohio-1469.]
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, Case No. 11CV729. JUDGMENT: Eviction Action Dismissed.
For Plaintiff-Appellant: Attorney Matthew Giannini 1040 South Commons Place, Suite 200 Youngstown, Ohio 44514
For Defendants-Appellees: Attorney Maurus Malvasi P.O. Box 353 Girard, Ohio 44420
JUDGES: Hon. Joseph J. Vukovich Hon. Cheryl L. Waite Hon. Mary DeGenaro
O P I N I O N
{¶1} Plaintiff-appellant Homeowners Association at Arrowhead Bay appeals the decision of the Mahoning County Common Pleas Court denying the request to evict defendants-appellees Gregory and Lori Fidoe from a unit they occupied under a land contract with the unit owners, Derik and Michelle Overly, who were not named in the action. Pursuant to
{¶2} The Homeowners Association at Arrowhead Bay, by and through its agent, Coconut Creek Enterprises, Ltd. filed the within complaint for forcible entry and detainer against Gregory and Lori Fidoe. They also asserted a cause of action for nearly $40,000 in money damages (mostly for daily association assessments for alleged violations of the bylaws on dog replacement policies and items in windows), interest, costs, and attorney fees.
{¶3} The Fidoes’ answer asserted many affirmative defenses, including subject matter jurisdiction, standing, real party in interest, failure to join necessary parties, and failure to bring the action in the name of the unit owners (Derik and Michelle Overly) as required by
{¶4} The forcible entry and detainer case was tried to a magistrate. A prior settlement agreement, which was not mentioned in the complaint, was provided as an exhibit. In it, the Fidoes agreed they are not the title owners of the unit until the title transfers, the Association agreed to provide the Fidoes with any notices related to the unit, the Overlys waived the right to receive notices from the Association, and the Fidoes and Overlys agreed not to raise that lack of notice to the Overlys as a defense in future proceedings. The agreement also contained a future violations clause, providing that the Association would follow the procedures in
{¶6} The Association objected to the magistrate‘s decision. Before doing so, they urged the trial court to accept the magistrate‘s finding that they could bring the action, urging that they had standing pursuant to
{¶7} The Fidoes countered these arguments and urged in pertinent part that the Association did not have the standing or the ability to evict as the unit owners were not named. The Fidoes pointed out that the Association‘s own complaint quotes the statutory requirement that the eviction action be brought in the unit owner‘s name.
{¶9} After arguing that the trial court‘s decision was not supported by the facts in the case and constituted an abuse of discretion, the Association urges that we uphold the portion of the trial court‘s decision which overruled the Fidoes’ argument about a lack of subject matter jurisdiction due to the mislabeling of the notice to vacate as a three-day notice. On that topic, the Association argues the entitlement to ten-days’ notice was contractual (from the prior settlement agreement) as opposed to statutory, the answer only raised a statutory notice issue, and they waited well over ten days to file the eviction action after serving the notice to vacate on the Fidoes.
{¶10} However, we focus our attention here on the failure to bring the action in the name of the unit owners. Before arguing the merits of their assignment of error, the Association notes that the Fidoes raised this issue in their answer, and the Association‘s brief asserts that it had standing to evict under
{¶11}
{¶12}
{¶13} Just as compliance with statutes such as
{¶14} As aforementioned, the Association stated that they were permitted to bring the action pursuant to
{¶15} Moreover, we have all of the exhibits submitted at the hearing. No articles, bylaws, declarations, or lease documents were presented as exhibits. No testimony was presented that the some contractual document states, for instance, that an eviction action need not be brought in the name of the unit owner. And, although the complaint states that various documents provide them with authority or caused liability, nothing besides the notice to vacate was attached to the complaint.
{¶16} We note that the prior settlement agreement was in the record. As stated above, it provided that the Overlys waived future notices and the parties agreed that all future notices related to the unit shall be sent to the Fidoes, who shall not raise lack of notice to the Overlys as a defense in a future proceeding. The provision of notices related to the unit may encompass notices such as the ten-day written notice of eviction to the unit owner under
{¶18} Even if the issue is not the equivalent of a precondition to subject matter jurisdiction in an eviction action (as is the notice issue in cases such as Higgins), there is a clear statutory directive as to whom the named plaintiff must be in order for the Association to be entitled to file an eviction action. And, there exists a clear and raised violation of the statute here. The statutory directive is more than a real party in interest or joinder issue. In any event, although the latter types of issues can be cured, the issue here was not cured.
{¶19} Finally, we compare the situation with certain case law in declaratory actions. “A party‘s failure to join an interested and necessary party constitutes a jurisdictional defect that precludes the court from rendering a declaratory judgment.” Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478 ¶ 99-100 (action dismissed for lack of party). This has been characterized as a lack of jurisdiction to proceed to judgment rather than a complete lack of jurisdiction over the action as initiated. See, e.g., Plumbers & Steamfitters Local Union 83 v. Union Local School Dist. Bd. of Edn., 86 Ohio St.3d 318, 321, 715 N.E.2d 127 (1999). Still, where amendment was not sought below, dismissal is appropriate. See, e.g., id.; Portage, 109 Ohio St.3d 106. See also State ex rel. Doe v. Capper, 132 Ohio St.3d 365, 2012-Ohio-2686, 977 N.E.2d 553, (where parentage action statute required the minor child to be named as a party unless there is a showing of good cause, the Court found the failure to name the child resulted in both a lack of personal jurisdiction to order the child to submit to tests and also ordered the trial judge to dismiss the entire parentage action due to the lack of a statutorily-required necessary party). Notably, the statute at issue in Portage generally required
{¶20} In sum, because the statute requiring the action to be brought in the name of the unit owner was violated, we cannot review the facts presented at the eviction action. This case should not have proceeded in the face of the statutory violation as to the named plaintiff. For all of the foregoing reasons, the eviction action is dismissed.
Waite, J., concurs.
DeGenaro, P.J., concurs in judgment only; see concurring in judgment only opinion.
DeGenaro, P.J., concurring in judgment only.
{¶21} I must concur in judgment only because most of the majority‘s analysis is superfluous. It is has long been recognized that an action in forcible entry and detainer was not available at common law, but is a creature of statute. Yager v. Wilber, 8 Ohio 398, 1838 WL 20; Rothwell v. Winterstein, 42 Ohio St. 249, 1884 WL 234.
{¶22} Here, the Association brought the action in its own name against the Fidoes. The record is clear that the Association did not bring the action in the name of the Overlys as mandated by