[Cite as 701 Lakeside, L.L.C. v Pinnacle Condominium Unit Owners' Assn., 2024-Ohio-1269.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
701 LAKESIDE, LLC, :
Plaintiff-Appellant, : No. 112441 v. :
PINNACLE CONDOMINIUM UNIT : OWNERS ASSN., ET AL.,
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 4, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-18-907567
Appearances:
Consolo Law Firm Co., LPA, and Frank Consolo, for appellant.
Patrick S. Corrigan, for appellees.
EMANUELLA D. GROVES, J.:
Plaintiff-appellant, 701 Lakeside, LLC (“701 Lakeside”) appeals the
judgment of the trial court denying its motion for declaratory judgment on
February 6, 2023. Upon review, we affirm the trial court’s decision. On November 28, 2018, 701 Lakeside filed a complaint against
defendants-appellees Pinnacle Condominiums Unit Owners Association
(“PCUOA”) and Coral Management LLC and raised claims for declaratory judgment,
civil trespass, conversion of property, unjust enrichment, violation of R.C. 5311.23,
negligence, and civil theft. The majority of the claims stem from a dispute over
whether the first and second floors of the parking garage below the Pinnacle
Condominiums are considered part of the condominium property or the common
elements as outlined in the Declaration of Condominium Ownership
(“Condominium Declaration”) and of easements outlined in the Reciprocal
Easement Agreement and Amended Reciprocal Easement Agreement (“REAs”),
restrictions, and covenants for Pinnacle Condominiums. During the relevant time,
701 Lakeside owned and operated the basement, first, and second levels of the
parking garage, and Gus Georgalis (“Georgalis”) was the managing member of 701
Lakeside.
The Parking Garage and Condominium Project
Initially, the parking garage had three levels: a basement, first, and
second floor. Georgalis conveyed the basement-level air rights1 from 701 Lakeside
to the Greater Cleveland Regional Transit Authority (“RTA”). In 2003, Georgalis
conceived a condominium development project and formed Pinnacle 701, LLC to
1 “The right to use the air space superjacent to the ground is one of the rights in
land.” Money from Heaven: Should Qualified Air Rights Donations be Characterized as Interests in Land or Buildings? Why does It Matter, 50 Clev.St.L.Rev. 283, 288 (2002- 2003). develop the air space above the garage’s second floor2 into the Pinnacle
condominiums (collectively “Pinnacle”). Pinnacle also added three new garage
levels and 701 Lakeside constructed ramps on the first and second levels of the
garage. The ramps provided bypass access to the three new Pinnacle-owned garage
levels, which would provide parking for the condominium project in the new five-
level garage.
The Original REA
On May 20, 2004, 701 Lakeside and Pinnacle, both controlled by
Georgalis, recorded a Reciprocal Easement and Operating Agreement (“REA”) with
the Cuyahoga County Recorder. The REA was recorded as instrument
200405211109 and detailed the rights, duties, and obligations of the parties under
the REA. The REA identified the easements 701 Lakeside granted to Pinnacle as
the developer of the condominium and garage projects. The REA granted Pinnacle
use of the first and second floors of the garage as well as easements for access and
ingress from the street to the condominiums via the first- and second-floor ramps
constructed by Pinnacle. The original REA acknowledged in its recitals one of the
purposes of the REA was to create permanent easements:
J. Each of the parties to this REA intends that the 701 Lakeside Property and the Pinnacle Property will interrelate and function to their mutual advantage and benefit. Therefore, each party desires to create certain rights, privileges, obligations, duties, and easements and to impose certain restrictions and covenants upon the respective parcels, which shall benefit not only the parcels but also the owners of
2 Greater Regional Transit Authority’s air rights included the air space between the
basement surface level and the basement roof. such parcels and the owner’s respective grantees, successors, assigns and permittees (hereinafter defined), and which shall bind not only the respective owners but also each owner’s respective grantees, successors, assigns and permittees[.] REA instrument 200405211109.
Certain easements were intended to run with the land.
NOW, THEREFORE, 701 Lakeside and Pinnacle each hereby grants, agree, and declare that the 701 Lakeside Property and the Pinnacle Property shall be held, sold, and conveyed subject to the following easements, restrictions, obligations, covenants, rights, and conditions which are to protect the value and desirability of the Project and the Parcels and which shall run with the land and be binding on and inure to the benefit of the respective owners and all parties having any right, title, or interest in the parcels or any part thereof, their respective heirs, successors, and assigns.
Article 2 of the original REA identified the following relevant
easements:
2.1 Grant of Appurtenant Easements Encumbering 701 Lakeside Property. Subject to all of the terms, covenants, conditions, and restrictions of this REA, the 701 Lakeside Property Owner, for itself, its successors, and assigns, does hereby grant to and for the benefit of the Pinnacle Property, the Owner thereof and its respective successors and assigns, the appurtenant easements outlined in this Section 2.1. Except as otherwise noted in this REA, each easement shall be for the nonexclusive use of the Pinnacle Property Owner and its respective successors and assigns. Each easement shall commence on the date hereof and shall continue in perpetuity (so long as an improvement is located on the 701 Lakeside Property) and shall include all rights of access reasonably necessary to enjoy same:
* * *
b) an easement relative to all walkways, driveways, doorways, and stairways of the 701 Lakeside Property for pedestrian and vehicular ingress to and egress from the Pinnacle Property and the public sidewalks and roadways (notwithstanding the preceding, the grant of this easement shall not entitle the Pinnacle Property Owner, its successors, assigns or Permittees, the right to use the ramps and parking areas adjoining or leading exclusively to the RTA Parcel; or (ii) the parking areas on the First Floor Air Rights Parcel described on exhibit G or Second Floor Air Rights Parcel described on exhibit H).
Notably, these easements provided the condominium owners’ sole
means of accessing the PCUOA-owned parking on the parking garage’s third, fourth,
and fifth floors by vehicle or pedestrian traffic.
The Amended REA
701 Lakeside executed an amended REA on November 28, 2005, with
Pinnacle 701 LLC. Georgalis was the principal of both entities at that time. 701
Lakeside amended the REA by deleting sections 2.1 f and k from the REA, which
stated:
(f) an easement to use the first-floor ramp easement as described in Exhibit “I” for vehicle access and ingress;
(k) an easement to use the second-floor ramp easement as described in Exhibit “N” for vehicle access and egress.
701 Lakeside replaced these sections with the same language, except
the term vehicle was removed:
(f) an easement to use the first-floor ramp easement as described in Exhibit “I” for access and ingress;
(k) an easement to use the second-floor ramp easement as described in Exhibit “N” for access and egress.
The Pinnacle Condominium Declaration was recorded on
December 5, 2005, days after the amended REA, creating the PCUOA as a matter of
law. Over the next several years, disputes centering around the obligations and
rights of the parties concerning access and cost-sharing of the garage have been
litigated. The First Arbitration
On September 2, 2009, PCUOA filed a complaint in Cuyahoga C.P.
No. CV-09-703063 seeking a temporary restraining order prohibiting 701 Lakeside
from denying PCUOA members access to the garage’s first floor elevator. The trial
court granted PCUOA’s motion and ordered 701 Lakeside to remove the padlocks it
had placed on the elevators immediately. Subsequently, 701 Lakeside filed a motion
seeking an order from the trial court invoking mandatory arbitration under the
terms of the amended REA. The trial court granted 701 Lakeside’s motion to enforce
the mandatory arbitration provision within the amended REA agreement. PCUOA
appealed, and we affirmed the trial court’s order. Pinnacle Condominiums Unit
Owners’ Assn. v. 701 Lakeside, LLC, 8th Dist. Cuyahoga No. 96554, 2011-Ohio-
5505. The matter was arbitrated in American Association of Arbitration case No.
53-115-0045311, captioned In the Matter of Arbitration Between 701 Lakeside LLC.
v. Pinnacle Condominium Owners Association. The arbitrators were tasked with
interpreting the scope, rights, and obligations of 701 Lakeside and PCUOA under
the terms of the REAs.
The arbitrators issued a final award on August 15, 2012, whereby the
panel interpreted the meaning, scope, and purpose of the REAs. During its analysis,
the arbitration panel followed the well-settled precedent of Graham v. Drydock
Coal Co., 76 Ohio St.3d 311, 667 N.E.2d 949 (1996). Accordingly, the panel resolved
any ambiguities in the REA language against 701 Lakeside. Among its findings, the Arbitrators interpreted the garage ramps and
parts of the garage up to the PCUOA garage as “common area elements.” Moreover,
the arbitrators granted PCUOA’s counterclaim for a declaration that the PCUOA and
its unit owners have a permanent nonexclusive easement of ingress and egress
through the gates, ramps, stairwells, and elevators in and through the parking
garage owned and operated by 701 Lakeside. The trial court adopted the Arbitrator’s
findings and determined that PCUOA was the dominant holder of a permanent
nonexclusive easement of ingress and egress that runs with the land. Ultimately,
the easement was transferred, by operation of law, from Pinnacle to PCUOA.
The trial court permanently barred 701 Lakeside from interfering
with the easements in the future, ordered confirmation of the arbitration award, and
entered final judgment on March 20, 2013, which 701 Lakeside did not appeal.
The Second Arbitration
The parties entered a second arbitration captioned In the Matter of
Arbitration Between 701 Lakeside LLC. v. Pinnacle Condominium Owners
Association, arbitration case No. 01-14-0001-893. The claims in the second
arbitration related to common area expenses, validity and scope of easements,
garage maintenance, and enforcement of the REA and the August 15, 2012 final
award terms.
The arbitrators issued their findings on June 1, 2016. The arbitrators
concluded that the prior arbitration panel’s August 15, 2012 decision granted
Pinnacle’s counterclaim for a declaration that, under the REA, Pinnacle has permanent nonexclusive easements of ingress and egress through the parking
garage owned and operated by 701 Lakeside. The arbitrators found the doctrine of
res judicata applicable to issues of enforceability and validity of the REAs, which
addressed the scope of the easements conveyed in the REAs. The second arbitration
panel concluded that under the doctrine of res judicata
Pinnacle and its members have a permanent nonexclusive easement of ingress and egress through the gates, ramps, stairwells, walkways, and elevators in and through the parking garage owned and operated by 701 Lakeside. 701 Lakeside is permanently barred from doing anything to interfere with this easement. (Final Award, June 1, 2016).
The trial court ratified the second arbitration award and again
permanently barred 701 Lakeside from doing anything to interfere with the REAs.
Current Litigation
In the instant case, on November 28, 2018, 701 Lakeside filed a
verified complaint with seven causes of action. Among them, 701 Lakeside asked
the trial court for a declaratory judgment that the REAs were null and void in light
of the Condominium Declaration. The parties engaged in substantial motion
practice. Both PCUOA and Coral filed motions for summary judgment, which the
trial court denied.
Additionally, 701 Lakeside filed its own motion for summary
judgment concerning the claims for failure to comply with R.C. 5311.23 and trespass.
The trial court also denied its motion for summary judgment on March 23, 2022.
701 Lakeside subsequently filed a motion for declaratory judgment on
November 29, 2022, seeking a declaration that the REAs are null and void in light of the Condominium Declaration. 701 Lakeside claimed the Condominium
Declaration excludes the basement and the first and second levels of the garage from
the condominium property and common elements. Citing conflicting terms in the
Condominium Declaration and the REAs, 701 Lakeside argued that the
Condominium Declaration is the controlling contract because it was filed after the
REAs.
The trial court disagreed and dismissed 701 Lakeside’s first cause of
action for declaratory judgment on February 6, 2023, for two reasons. First, the trial
court found that 701 Lakeside lacked standing to seek a declaratory judgment under
the Condominium Declaration pursuant to R.C. 5311.23(A) and (B). Moreover, the
trial court found that the validity of the REAs had been addressed in prior litigation
and was barred by res judicata.
On February 24, 2023, 701 Lakeside filed its notice of appeal of the
trial court’s dismissal of its motion for declaratory judgment, raising one assignment
of error.
Assignment of Error
The trial court erred when it denied Appellant’s motion for a declaratory judgment in its favor on the first cause of action, declaring that the REA and amended REA are null and void as a matter of law.
Standard of Review
When a declaratory action is dismissed because it is not justiciable,
appellate courts review the dismissal under an abuse-of-discretion standard. Arnott
v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 13. Martens v. Price, 3d Dist. Hancock No. 5-23-04, 2023-Ohio-4359, ¶ 24. An abuse of discretion
implies that the court’s attitude was unreasonable, arbitrary, and unconscionable.
State v. Hill, 171 Ohio St.3d 524, 2022-Ohio-4544, 218 N.E.3d 891, ¶ 9, citing
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
Condominium Instruments
This case centers on whether the trial court abused its discretion in
determining that 701 Lakeside lacked standing because it was not an “interested
person” under the terms of the Condominium Declaration pursuant to R.C. 5311.23
(A) and (B). The Ohio Condominium Act, codified in R.C. Chapter 5311 and its
amendments, outline the relationships, rights, and remedies that safeguard owners,
condominium associations, and purchasers from developer misconduct. Belvedere
Condominium Unit Owners’ Assn. v. R.E. Roark Cos., 67 Ohio St.3d 274, 280, 617
N.E.2d 1075 (1993). The objective of R.C. Chapter 5311 is to define and regulate the
legal framework surrounding condominium development, including the
interrelationship between condominium developers and unit owners’ associations.
Id.
This objective is achieved through various “Condominium
Instruments.” Condominium Instruments are defined in R.C. 5311.01(M) and
include the declaration, accompanying drawings, plans, the bylaws of the unit
owner’s association, the condominium development disclosure statement described
in section R.C. 5311.26, any contracts about the management of the condominium
property, and any other documents, contracts, or instruments establishing ownership of or exerting control over a condominium property or unit. R.C.
5311.01(M). The relevant condominium instruments in this matter are the REAs
and Condominium Declaration.
An REA is a condominium instrument that memorializes the
contractual rights and obligations of the easement holders, adhering to standard
rules of contract interpretation. Pinnacle Condominiums Unit Owners’ Assn. at ¶ 4.
701 Lakeside is named as a party in the REA and owner of the servient estate, and
Pinnacle LLC is the dominant estate owner. (REA section 12.1). The REA terms
bind all present and future dominant and servient estate owners.3
{¶ 26} Conversely, Condominium Declarations are contracts between the
association and the purchasers and are also subject to standard contract
interpretation. Georgalis v. Cloak Factory Condominium Unit Owners’ Assn., 8th
Dist. Cuyahoga No. 109300, 2021-Ohio-66, ¶ 13. Heba El-Attar v. Marine Towers
E. Condominium Owners’ Assn., 8th Dist. Cuyahoga No. 106140, 2018-Ohio-3274,
¶ 9, see Grand Arcade, Ltd. v. Grand Arcade Condominium Owners’ Assn., 8th
Dist. Cuyahoga No. 104890, 2017-Ohio-2760, ¶ 16, citing Nottingdale
Homeowners’ Assn., Inc. v. Darby, 33 Ohio St.3d 32, 514 N.E.2d 702 (1987). Wood
v. Cashelmara Condominium Unit Owners Assn., 8th Dist. Cuyahoga No. 110696,
2022-Ohio-1496, ¶ 31. This distinction underlines the different legal frameworks
3 The prior arbitration award outlined the scope of the easements and the respective
rights and obligations of the easement owners under the terms of the REA. governing the relationship between condominium developers, owners, associations,
and agents.
When disputes between the condominium unit owners’ association
and other stakeholders arise, R.C. 5311.23(A) permits a unit owner’s association to
obtain damages for an injury caused by a breach of the condominium instruments
by a declarant, developer, agent, unit owner, or any person entitled to occupy a unit.
Akerstrom v. 635 W. Lakeside, Ltd., 2018-Ohio-98, 105 N.E.3d 440, ¶ 11 (8th Dist.).
Conversely, R.C. 5311.23(B) allows any “interested person,” including
a condominium owners’ association, to obtain 1) a declaratory judgment to
determine its legal relations under a condominium instrument or 2) an injunction
against a declarant, developer, agent, unit owner, or person entitled to occupy a unit
that threatens or fails to comply with its obligations under the instrument. Id. ¶ 12.
Interested Person Pursuant to R.C. 5311.23(B)
701 Lakeside claims it is an “interested person” under the
Condominium Declaration, pursuant to R.C. 5311.23(A) and (B). Preliminarily, we
note that R.C. 5311.23(A) governs claims for civil damages, and R.C. 5311.23(B) is
the vehicle for declaratory judgments or injunctive relief. Since 701 Lakeside’s
assignment of error concerns a claim for a declaratory judgment, we will consider
whether 701 Lakeside is an interested person with standing to seek a declaratory
judgment under R.C. 5311.23(B).
The term “interested person” is not defined in the statute. However,
“‘the inquiry as to standing must begin with a determination of whether the statute in question authorizes review at the behest of the plaintiff.’” State ex rel. Flanagan
v. Lucas, 139 Ohio St.3d 559, 2014-Ohio-2588, 13 N.E.3d 1135, ¶ 17. State ex rel. E.
Cleveland Fire Fighters’ Assn., Local 500 v. Jenkins, 96 Ohio St.3d 68, 2002-Ohio-
3527, 771 N.E.2d 251, ¶ 11, quoting Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct.
1361, 31 L.Ed.2d 636 (1972). We have previously held “[u]nder R.C.
5311.23 and 5311.20, the association is the party entitled to enforce the obligations
possessed or imposed upon the unit owner’s association by statute or otherwise.”
Akerstrom ¶ 16.
701 Lakeside offers Pointe at Gateway Condo Owner’s Assn., in
support of its claim that it is an interested person under R.C. 5311.23. Pointe at
Gateway Condo Owner’s Assn. v. Schmelzer, 8th Dist. Cuyahoga Nos. 98761 and
99130, 2013-Ohio-3615. In Gateway, the condominium owners’ association brought
a claim for a declaratory judgment against the developer and owner of a historical
building to prevent the building owner from retaining ownership of the facade of the
building pursuant to the terms of the condominium declaration. Id. The action was
commenced by the condominium unit owners’ association against the developer.
Under R.C. 5311.23(A), “a declarant, developer, agent, unit owner, or any person
entitled to occupy a unit is liable for damages in a civil action” for a breach of the
condominium declarations.
Moreover, the association sought a declaratory judgment pursuant to
R.C. 5311.23(B) to determine its rights concerning the facade of the building under
the terms of the condominium instruments. Because the association and owner/developer were persons whose rights and obligations were defined in the
condominium declarations, the association was an “interested person” under R.C.
5311.23, with standing to seek a declaratory judgment determining those rights and
obligations. R.C. 5311.23(B).4 The court, in Pointe at Gateway Condo Owner’s
Assn., interpreted the terms of the declaration and ultimately determined, under the
plain meaning of the language in the contract, that the owner/developer had a right
to ownership and control of the facade of the building. The instant case is
distinguishable.
Once 701 Lakeside conveyed its interests in the development to
Pinnacle, it retained only its ownership interests in the appurtenant easements as
the servient estate. The condominium instruments that determine the rights and
obligations concerning 701 Lakeside’s ownership interests are the REAs. 701
Lakeside acknowledges that prior litigation addressed the rights and obligations of
the PCUOA and 701 Lakeside in light of the REAs. Still, it claims it is entitled to
enforce the terms of the Condominium Declaration.
We find nothing in the record to indicate that 701 Lakeside has an
interest in the Condominium Declaration because it is not a party to the contract.
As a nonparty, 701 Lakeside cannot demonstrate it is an “interested person” entitled
to declaratory relief under R.C. 5311.23(B) in light of the Condominium Declaration.
4Until the condominium owners’ association is created by recording the condominium declaration and bylaws, the developer acts as the association. See Mangano v. 1033 Water St., L.L.C., 8th Dist. Cuyahoga No. 106861, 2018-Ohio-5349, ¶ 35. Here, R.C. 5311.233(B) only permits the PCUOA to commence claims for declaratory
judgment or injunction regarding the Condominium Declaration. Akerstrom at
¶ 16. Additionally, PCUOA argues that 701 Lakeside is not an interested person
because it can claim no injury caused by the PCUOA breaching the Condominium
Declaration. PCUOA challenged 701 Lakeside’s standing to pursue a claim under
R.C. 5311.23(B), pursuant to the declaration.
Standing
In the present case, the trial court found that 701 Lakeside lacked
standing to seek a declaratory judgment under the terms of the Condominium
Declaration. We agree.
The doctrine of standing ensures the justiciability of a claim by
determining whether a party has the requisite interest in a lawsuit to seek relief in
court. Link v. Wayne Ins. Group, 3d Dist. Allen No. 1-18-13, 2018-Ohio-3529, ¶ 13,
citing ProgressOhio.org., Inc. v. JobsOhio, 139 Ohio St.3d 520, 2014-Ohio-2382, 13
N.E.2d 1101, ¶ 7. Without standing a trial court may not consider the merits of a
legal claim. A plaintiff establishes standing by demonstrating (1) a direct injury, (2)
caused by a defendant’s unlawful actions, and (3) that the injury is likely to be
redressed by the relief sought by the plaintiff. Windsor Realty & Mgt. v. Northeast
Ohio Regional Sewer Dist., 8th Dist. Cuyahoga No. 107597, 2019-Ohio-3096, ¶ 13.
“A person with standing has a real interest in the subject matter of the lawsuit.” Id.
To establish standing, 701 Lakeside must demonstrate a direct injury
caused by PCUOA’s breach of the contract and that a declaratory judgment determining 701 Lakeside’s rights and obligations in light of the Condominium
Declaration would redress the injury. When the condominium declaration was
initially recorded, Pinnacle, not 701 Lakeside, was a party to the Condominium
Declaration. Moreover, 701 Lakeside’s only role in the declaration is that of an
owner of the servient estate and whose rights and obligations are defined in the
REAs. As previously determined, 701 Lakeside is not an interested person within
the meaning of the statute, and the record fails to reflect any obligations owed to it
by PCUOA within the terms of the Condominium Declaration. 701 Lakeside has
failed to demonstrate that it is a party entitled to enforce the terms of the
declaration, entitling it to relief under R.C. 5311.23(B).
We find the trial court did not abuse its discretion when it determined
that 701 Lakeside lacks standing to pursue a claim under R.C. 5311.23. Furthermore,
the trial court correctly dismissed 701 Lakeside’s first cause of action for a
declaratory judgment concerning its rights, status, or legal relation in light of the
Condominium Declaration.
Because the issue of standing is dispositive, this court will not address
the underlying issue of res judicata. As previously stated, the trial court may not
consider a legal claim where the complainant has no standing. Consequently, 701
Lakeside’s assignment of error is overruled.
Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court found there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
LISA B. FORBES, P.J., CONCURS IN JUDGMENT ONLY; MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY