NORTH ORANGE HOMEOWNERS ASSOCIATION, INC. v. JOSEPH W. SUAREZ
Case No. 2019 CAE 02 0015
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
October 23, 2019
2019-Ohio-4416
Hon. W. Scott Gwin, P.J.; Hon. John W. Wise, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Civil appeal from the Delaware County Court of Common Pleas, Case No.18 CVH 06 0329. JUDGMENT: Affirmed.
For Plaintiff-Appellee
ROBIN STROHM
Two Miranova Place
Suite 380
Columbus, OH 43215
For Defendant-Appellant
COURTNEY HANNA
155 W. Main Street
Suite 200
Columbus, OH 43215
{¶1} Appellant appeals the February 11, 2019 and April 18, 2019 judgment entries of the Delaware County Court of Common Pleas granting appellee‘s motion for summary judgment, denying appellant‘s motion to vacate, and granting appellee‘s motion for additional attorney fees.
Facts & Procedural History
{¶2} Appellant Joseph Suarez (“Suarez“) is the owner of the lot at 7840 Overland Trail (“Lot“) in Delaware, Ohio. Appellee North Orange Homeowners’ Association, Inc. (“Association“) is a not-for-profit corporation that governs the uses of the lots in the North Orange Residential Subdivision (“Subdivision“). The lots in the Subdivision are subject to restrictions set forth in the Declaration of Covenants, Easements, Restrictions, and Assessment Liens for the North Orange Residential Subdivision.
{¶3} On June 26, 2018, appellee filed a complaint against appellant. Appellee alleged that after it approved appellant‘s request in 2017 to install a one-foot retaining wall, appellant deviated substantially from the plans by: building retaining walls that exceed one foot and extend to areas beyond those in his request; installing electrical outlets and lines not referenced in the request; and otherwise exceeding the scope of the approval. In its complaint, appellee sought a declaration that it is entitled to enforce the terms of the deed restrictions prohibiting owners of lots in the Subdivision from constructing exterior modifications on any lot in the Subdivision without the Board‘s prior written approval and a declaration that appellant violated the deed restrictions by constructing the unapproved exterior modifications without the Board‘s prior written approval. Appellee also sought a permanent injunction ordering appellant to restore the
{¶4} Appellant filed a pro se response to the complaint on July 12, 2018. In his answer, appellant: admitted his application for a retaining wall of one foot was approved by appellee; admitted the wall height did go over the approved plan of one foot due to the grade in the yard; admitted he received a letter from appellee stating he went over the one foot mark in his plan; admitted he e-mailed appellee telling them he had to raise the height of the retaining walls in some locations to even out the flower beds; stated he submitted a new application for a revised plan and asked appellee to come and walk the yard to see what issue he was having; appellee never responded to his request; denied he received a second letter from appellee; denied receiving a copy of the deed restrictions at closing; denied he violated any deed restrictions; and stated appellee is discriminating against him. Appellant attached to his answer photographs of what he states are violations of the deed restrictions on multiple other homes in the Subdivision.
{¶5} Appellee filed a motion for summary judgment on October 1, 2018, arguing the affidavits and attached documents demonstrate that no genuine issues of material fact exist to rebut that appellant constructed exterior modifications on his Lot in violation of the applicable deed restrictions and that the Association is entitled to judgment for its attorney‘s fees and costs incurred as a result of having to enforce its deed restrictions against appellant. Attached to the motion for summary judgment is the affidavit of Sue
{¶6} Also attached to the motion for summary judgment is the affidavit of Nataleigh Dillon (“Dillon“), an employee at the property management company hired by the Association. Dillon avers as follows: Suarez made substantial exterior modifications to the Lot, including building retaining walls taller than one foot around flower beds, trees, and other areas of the Lot, installing exterior electrical outlets and other electrical wiring, beginning of the installation of five water fountains, and installing outdoor lighting on walls and spot lights focused on the house, trees, fountains, and mailbox; on June 27, 2018, she took pictures of the Lot to detail the extent of the modifications and attached as Exhibits B-1 and B-2 are two pictures of Suarez‘s Lot taken on June 27, 2018; the Board never approved most of the modifications; since CPS took over management of the
{¶7} Next, appellee attached to the motion for summary judgment the affidavit of Nicholas Barnes (“Barnes“), lead counsel for appellee in this action. Barnes avers: he received an e-mail attached as C-1 from Suarez on June 29, 2018 after the Association filed its complaint in which Suarez stated he was “pretty pumped to take this on and drain the HOA in attorney fees“; he contacted Suarez‘s bankruptcy counsel who informed him that he is not representing Suarez with regard to this matter and this matter involves a post-petition debt that is not affected by the automatic stay; the total amount of attorney‘s fees and costs incurred by the Association in preparing for and prosecuting the case through September 30, 2018 is $7,350, as evidenced by the true and accurate copies of the itemized billing statements attached as Exhibits C-4, C-5, C-6, C-7, C-8, C-9, and C-10; his hourly rate of $200.00 per hour is reasonable and customary for attorneys with ten years of legal experiences in the Columbus metropolitan area; and the hourly rate of $200.00 for Attorney Williams is reasonable and customary.
{¶8} The final affidavit attached to the motion for summary judgment is the affidavit of Aaron Born (“Born“), a member of the Board of the Association. Born avers as follows: the Board approved a request from Suarez to install a one foot retaining wall
{¶9} The deed restrictions provide that no owner may construct any exterior improvements on a lot in the Subdivision without submitting a request to the Association and receiving its approval prior to construction. Article II, Section 1.
{¶10} On October 8, 2018, Appellant filed a pro se “Plaintiffs Motion for Summary Judgment Response.” In the “Memorandum Support Response” portion of his response, appellant states: he did not violate any deed restrictions because there are no rules on retaining walls; the wall height did go over the approved plan of one foot due to grade in
{¶11} Appellee filed a reply in support of its motion for summary judgment, arguing that none of the allegations contained in appellant‘s response may be considered because appellant did not provide any affidavits or proper Civil Rule 56 evidence in response. Appellant filed a counterclaim, motion for dismissal, and second response to motion for summary judgment on October 19, 2018. On October 22, 2018, appellee filed a motion to strike the three pleadings appellant filed on October 19th.
{¶12} The trial court issued a judgment entry on January 25, 2019 granting appellee‘s motion to strike appellant‘s counterclaim, motion to strike appellant‘s second response to the motion for summary judgment, and denying appellant‘s motion for dismissal. Appellant filed a pro se affidavit on February 5, 2019. Appellee filed a motion to strike the affidavit. The trial court granted the motion to strike on February 11, 2019, finding it was not permitted by the Rules of Civil Procedure and is not a proper affidavit because it does not make averments based on personal knowledge.
{¶13} The trial court also issued a judgment entry granting appellee‘s motion for summary judgment on February 11, 2019. The trial court found that appellant attached several exhibits in his response to the motion for summary judgment that are not self-
{¶14} The trial court further found as follows: as an owner of a Lot in the Subdivision, Suarez is subject to the Declaration of Covenants, Easements, Restrictions, and Assessment Liens for North Orange Residential Subdivision and the Code of Regulations of the Association; Article II, Section 1 of the deed restrictions provides that no improvements or changes of any kind may be commenced or permitted to remain on any lot unless such improvement or change has the prior written approval of the developer; the rights of the developer were later transferred to the Association under Article V, Section 6; it is undisputed that Suarez submitted a plan to the Association to install a one-foot retaining wall around specific flower beds on the lot, the Association approved this plan, and Suarez began construction of the exterior modifications; in his answer, Suarez admits he deviated from the original plan and raised the height of the wall in some areas to even out the flower beds and make the walls work; Suarez also deviated from the plan by installing exterior electrical outlets and writing, beginning to install fountains, and installing outdoor lighting on walls and spotlights; Suarez submitted revised plans, but the Association did not approve them; Suarez continued construction; Suarez admitted in his answer that he never received an approval for his revised plan; the Subdivision is governed by
{¶15} The trial court held appellee is entitled to a declaratory judgment that: (1) appellee is entitled to enforce the terms of the deed restrictions prohibiting owners of lots in the subdivision from constructing exterior modifications on any lot in the subdivision without the board‘s prior written approval and (2) appellant has violated the deed restrictions by constructing the unapproved exterior modifications without the board‘s prior written approval. The trial court also granted appellee a permanent injunction ordering appellant to restore the lot to conform to the approval by the Board, remove all of the unapproved exterior modifications, and cease construction of any additional unapproved exterior modifications unless and until appellant obtains the Board‘s prior written approval for any additional exterior modifications. Finally, the trial court determined that, pursuant to
{¶16} Appellee filed a motion for additional attorney fees on February 14, 2019, attaching the affidavit of Barnes requesting an additional $3,240 in attorney fees. Barnes attached invoices to his affidavit.
{¶17} On February 22, 2019, appellant obtained counsel and his counsel filed a notice of appearance.
{¶18} On March 11, 2019, appellant, through counsel, filed a motion to vacate the judgment entry granting summary judgment. Appellant argued his motion should be granted due to excusable neglect, because, as a pro se litigant, he failed to respond to appellee‘s motion for summary judgment by affidavit or otherwise with specific facts showing that there are genuine issues of material fact for trial; thus, the trial court relied solely on the version of the facts set forth by appellee. Appellant stated he attempted to advocate for himself and did not demonstrate a complete disregard for the judicial system. Appellant also argued his motion should be granted pursuant to
{¶19} Attached to his motion to vacate is Suarez‘s affidavit. Suarez avers: appellee has failed to uniformly, fairly, and impartially enforce the deed restrictions; appellee failed to respond to the revised plans he submitted; by failing to respond, appellee is wrongfully circumventing the deed restrictions; appellee is not acting in good
{¶20} Appellee filed a motion to strike affidavit and memorandum in opposition to appellant‘s motion to vacate on March 22, 2019. Appellant filed a reply on March 29, 2019.
{¶21} On April 18, 2019, the trial court issued a judgment entry granting in part and denying in part appellee‘s motion to strike affidavit and denying appellant‘s motion to vacate. The trial court reviewed the affidavit of Suarez and found Suarez does not
{¶22} With regards to appellant‘s argument as to
{¶23} The trial court found it need not address whether appellant has a meritorious defense to appellee‘s claims. Lastly, the trial court found appellant is not entitled to a hearing on the motion to vacate, because, even if it takes as true what is contained in
{¶24} Also on April 18, 2019, the trial court issued a judgment entry granting appellee‘s motion for award of additional attorney fees incurred in the amount of $3,240 based upon the affidavit from Barnes and copies of the itemized billing statements.
{¶25} Appellant appeals the February 11, 2019 and April 18, 2019 judgment entries of the Delaware County Court of Common Pleas and assigns the following as error:
{¶26} “I. THE TRIAL COURT SHOULD HAVE DENIED PLAINTIFF-APPELLEE‘S MOTION FOR SUMMARY JUDGMENT AS THERE ARE GENUINE ISSUES OF MATERIAL FACT THAT SHOULD HAVE PRECLUDED THE GRANTING OF SUMMARY JUDGMENT.
{¶27} “II. THE TRIAL COURT ERRED BY DENYING DEFENDANT-APPELLANT‘S MOTION TO VACATE.
{¶28} “III. THE JUDGMENT ENTRY GRANTING PLAINTIFF-APPELLEE‘S MOTION FOR AWARD OF ADDITIONAL ATTORNEY FEES INCURRED RENDERED HEREIN ON APRIL 18, 2019 SHOULD BE REVERSED WHEN THE COURT REVERSES THE GRANTING OF SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF-APPELLEE.”
I.
{¶29} In his first assignment of error, appellant argues the trial court erred in granting appellee‘s motion for summary judgment because there are genuine issues of material fact that preclude the granting of summary judgment.
{¶30}
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed mostly strongly in the party‘s favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
{¶31} A trial court should not enter a summary judgment if it appears a material fact is genuinely disputed, nor if, construing the allegations most favorably towards the non-moving party, reasonable minds could draw different conclusions from the undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the applicable
{¶32} When reviewing a trial court‘s decision to grant summary judgment, an appellate court applies the same standard used by the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243. The party moving for summary judgment bears the initial burden of informing the trial court of the basis of the motion and identifying the portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the non-moving party‘s claim. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). Once the moving party meets its initial burden, the burden shifts to the non-moving party to set forth specific facts demonstrating a genuine issue of material fact does exist. Id. The non-moving party may not rest upon the allegations and denials in the pleadings, but instead must submit some evidentiary materials showing a genuine dispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).
{¶33} Appellant contends that genuine issues of material fact exist in order to preclude summary judgment, such as whether the exterior modifications, water fountains, and outdoor lighting was in violation of the restrictions, whether appellee is selectively enforcing the restrictions, whether the other homes in the community have similar violations, and whether appellant has stopped the exterior modifications.
{¶34} Pursuant to
{¶35} Upon review, we find appellee met its initial burden of demonstrating the absence of a genuine issue of fact by submitting sufficient and proper
{¶36} The burden then shifted to appellant to set forth specific facts, pursuant to the confines of
{¶38} Appellant‘s first assignment of error is overruled.
II.
{¶39} In his second assignment of error, appellant contends the trial court erred in denying his motion to vacate.
{¶40} To prevail on a motion brought under
{¶41} A motion for relief from judgment is addressed to the sound discretion of the trial court and must not be disturbed by this Court absent an abuse of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 514 N.E.2d 1122 (1987). The Supreme Court of Ohio has defined the term of abuse of discretion as implying the court‘s attitude is unreasonable arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶42} Appellant argues the trial court abused its discretion in finding no excusable neglect pursuant to
{¶43} Appellant contends he demonstrated excusable neglect because, as a pro se litigant, he failed to respond to appellee‘s motion for summary judgment by affidavit or otherwise with specific facts showing that there are genuine issues of material fact for trial; thus the trial court relied solely on the version of facts set forth by appellee. Appellant argues he attempted to advocate for himself and did not demonstrate a complete disregard for the judicial system.
{¶44} In this case, we find the trial court did not abuse its discretion in finding no excusable neglect under these facts and circumstances. It is well established that pro se litigants are held to the same standards as litigants represented by counsel and are
{¶45} Ohio courts have held
Acting pro se * * * is neither excusable neglect nor any other reason justifying relief from judgment. A party has a right to represent himself, but if he does so, he is subject to the same rules and procedures as litigants with counsel. If the fact that a party chose not to be represented by counsel and was unsuccessful in pursuing his rights entitled that party to relief from judgment, every judgment adverse to a pro se litigant could be vacated to permit a second attempt, this time with counsel. Such a circumstance would be unjust to the adverse party.
{¶46} Appellant also argues his motion should be granted pursuant to
{¶47} The fraud or misconduct contemplated by
{¶49}
{¶50} Appellant lastly contends the trial court abused its discretion in not holding an evidentiary hearing on his motion to vacate. However, as noted by the Ohio Supreme Court, ”
{¶51} Appellant‘s second assignment of error is overruled.
III.
{¶52} In his third assignment of error, appellant argues the judgment entry granting appellee‘s motion for award of additional attorney fees incurred should be reversed when this Court reverses the granting of the summary judgment in favor of appellee. Based upon our disposition of appellant‘s first and second assignment of errors, we overrule appellant‘s third assignment of error.
{¶53} Based on the foregoing, appellant‘s assignments of error are overruled.
{¶54} The February 11, 2019 and April 18, 2019 judgment entries of the Delaware County Court of Common Pleas are affirmed.
By Gwin, P.J.,
Wise, John, J., and
Delaney, J., concur