McCarty v. River Pines RV Report Condominium Ass'n

164 Ohio Misc. 2d 1, 2011 WL 2731242
CourtClermont County Court of Common Pleas
DecidedJanuary 7, 2011
DocketNo. 2010 CVH 0289
StatusPublished

This text of 164 Ohio Misc. 2d 1 (McCarty v. River Pines RV Report Condominium Ass'n) is published on Counsel Stack Legal Research, covering Clermont County Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCarty v. River Pines RV Report Condominium Ass'n, 164 Ohio Misc. 2d 1, 2011 WL 2731242 (Ohio Super. Ct. 2011).

Opinion

Haddad, Judge.

{¶ 1} This matter came before the court pursuant to a motion to dismiss, filed by the defendants on March 16, 2010.

{¶ 2} Pursuant to an agreed entry filed November 3, 2010, the parties submitted the motion to dismiss on the briefs.2 The court took the matter under advisement and, having considered the complaint and the arguments contained in the briefs, now renders the following decision.

[7]*7FINDINGS OF FACT

{¶ 3} The plaintiffs, John Robert McCarty and James Siler, are owners of property units at the River Pines RV Resort. As unit owners, they are members of the Unit Owners Association of the River Pines RV Resort. The defendants in this case are the River Pines RV Resort Condominium Association, Inc. The named members of the board of directors are listed on the complaint and are listed in their capacity as members only and not as individuals.

{¶ 4} The plaintiffs assert in the complaint that the board of directors has demonstrated that it is unable to operate on a day-to-day basis with the $300 annual assessment contained in the declarations. It is their contention that the board of directors has routinely required property owners to pay special assessments that are not for capital improvements but are instead for the day-to-day operations of the park. The plaintiffs argue that the declaration allows the board of directors to levy special assessments for the repair of old capital improvements or to erect new capital improvements and not for use for the day-to-day operations of the park. Thus, it is their contention that since the special assessments levied by the board of directors are not authorized by the governing documents, it is unlawful and beyond the authority given to the board of directors.

{¶ 5} Further, the plaintiffs assert that the board of directors conducted a vote to levy a special assessment for repairs to the fence around the perimeter of the resort. They argue that this constitutes a special assessment for routine maintenance. It is their contention that the declarations require a capital improvement in order for a special assessment to be levied and that routine maintenance does not constitute a capital improvement. The plaintiffs further allege that since the original levy, the board of directors has chosen to install a garrison-style fence adjacent to the property of lot owners located on the perimeter of the resort.

{¶ 6} The plaintiffs further allege that the board of directors voted to increase annual dues to $400 and to move the payment date from August 1 to March 1. They assert that this vote was an amendment to the bylaws and is invalid, since the board of directors did not comply with R.C. 5311.05(B)(10). In the alternative, the plaintiffs argue that this amounts to a double assessment of dues, since the members have paid $300 in August 2009, and are now being forced to pay $400 in March 2010.

{¶ 7} Additionally, the plaintiffs allege that there was a tract of property fronting Cobra Road that was owned in common as part of the condominium association when it was first formed in 1986. The plaintiffs argue that since that time, they have been unable to determine what happened to common ownership

[8]*8of the property, but they believe that it was sold without notice to the owners in common.

{¶ 8} The plaintiffs also allege that the board of directors has caused certain lots to be foreclosed upon without proper notice or accounting to the unit owner. It is alleged that the board of directors trespassed for the purpose of removing property and has not accounted for the sale proceeds or the property belonging to the former unit owners.

{¶ 9} Finally, the plaintiffs assert that since 1986, the unit owners were responsible for purchasing electric meters. Some of the unit owners would remove the electric meters at the end of the summer in order to prevent water damage. They argue that despite the fact that the unit owners purchased the meters, the board of directors recently issued a declaration informing the members that the meters are the property of the park and that fees would be imposed for unit owners who removed the electric meters from the property.

{¶ 10} The plaintiffs have alleged four separate causes of action in the complaint: Count One — unlawful actions pursuant to unlawful votes; Count Two — conversion; Count Four — accounting for funds; and Count Five — reforming the governing documents.3 Attached to the complaint are several exhibits. While the complaint states that the bylaws are attached as Exhibit D, the court finds that there is no Exhibit D to the complaint. Neither the bylaws nor the declarations are attached the plaintiffs’ complaint.

{¶ 11} The defendants filed a motion to dismiss on March 16, 2010, alleging several grounds for dismissal, including Civ.R. 12(B)(2), 12(B)(4), 12(B)(5), and 12(B)(6). The plaintiffs’ response was filed on April 12, 2010, and the defendants’ final reply was filed on April 21, 2010.

THE LEGAL STANDARD

{¶ 12} Civ.R. 12(B)(2): A motion to dismiss pursuant to Civ.R. 12(B)(2), when presented to the court upon written submissions and without an evidentiary hearing, requires only that the nonmoving party make a prima facie showing of jurisdiction. Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, ¶ 27, citing Fallang v. Hickey (1988), 40 Ohio St.3d 106, 107, 532 N.E.2d 117. “In making its determination, the court must ‘view allegations in the pleadings and the documentary evidence in a light most favorable’ to the plaintiff and resolving all reasonable competing inferences in favor of the plaintiff.” Id., quoting Goldstein v. Christiansen (1994), 70 Ohio St.3d 232, 236, 638 N.E.2d 541.

[9]*9{¶ 13} Civ.R. 12(B)(4): In order to succeed on a motion to dismiss pursuant to Civ.R. 12(B)(4), the movant must prove that there was insufficiency of process. According to Civ.R. 3(A), “[a] civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant * * *.” Effective service of the complaint is a requisite to the commencement of a cause of action. Burgess v. Doe (1996), 116 Ohio App.3d 61, 68, 686 N.E.2d 1141 (12th Dist.), citing Lash v. Miller (1977), 50 Ohio St.2d 63, 65, 362 N.E.2d 642. “Inaction upon the part of a defendant who is not served with process, even though he might be aware of the filing of the action, does not dispense with the necessity of service.” Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 145, 2007-Ohio-3762, 870 N.E.2d 714, citing Maryhew v. Yova (1984), 11 Ohio St.3d 154, 157, 11 OBR 471, 464 N.E.2d 538. It is the duty of the plaintiff to perfect service of process upon the defendants, and the defendants have no duty to assist them. Id. The purpose of this rule is to “promote the prompt and orderly resolution of litigation, as well as eliminating the unnecessary clogging of court dockets caused by undue delay.” Burgess at 68, citing Saunders v. Choi (1984), 12 Ohio St.3d 247, 250, 466 N.E.2d 889.

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Bluebook (online)
164 Ohio Misc. 2d 1, 2011 WL 2731242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarty-v-river-pines-rv-report-condominium-assn-ohctcomplclermo-2011.