New Albany Park Condominium Ass'n v. Lifestyle Communities, Ltd.

2011 Ohio 2806, 195 Ohio App. 3d 459
CourtOhio Court of Appeals
DecidedJune 9, 2011
DocketNo. 10AP-118
StatusPublished
Cited by8 cases

This text of 2011 Ohio 2806 (New Albany Park Condominium Ass'n v. Lifestyle Communities, Ltd.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New Albany Park Condominium Ass'n v. Lifestyle Communities, Ltd., 2011 Ohio 2806, 195 Ohio App. 3d 459 (Ohio Ct. App. 2011).

Opinion

Connor, Judge.

{¶ 1} Defendants-appellants, Lifestyle Communities, Ltd. and New Albany Park, Ltd. appeal from an order of the Franklin County Court of Common Pleas granting the motion of plaintiffs-appellees, New Albany Park Condominium Association, Jared J. Dominak, and Michael D. Montgomery, to certify as a class action their claim for intentional misrepresentation as a violation of R.C. 5311.26. For the following reasons, we affirm.

[465]*465I. Facts and Procedural History

{¶ 2} Appellants developed a condominium community with 436 units known as New Albany Park. Michael D. Montgomery and Jared J. Dominak each own separate condominium units within New Albany Park. Montgomery and Dominak both purchased their units directly from appellants.

{¶ 3} As part of the condominium sale transaction, appellants gave Montgomery, Dominak, and all other original purchasers a disclosure statement, as required by R.C. 5311.26. The disclosure statements contained a two-year budget for the New Albany Park Condominium Association, along with a statement of the average projected monthly association fee.

{¶ 4} Throughout the construction and sale of the condominiums, the disclosure statement was revised to reflect changes brought on by the addition of a new phase of units, changes in the two-year budget, and the development of other material facts, which could affect the calculation of the projected condominium fee. A total of 16 different disclosure statements were disseminated among the original 436 condominium unit purchasers. Most of those disclosure statements reflect an “average projected assessment per unit per month” of $64, while a few of the disclosure statements reflect an “average projected assessment per unit per month” of $73. The named class representatives received two of the 16 different disclosure statements disseminated to the putative class.

{¶ 5} Appellees contend that the disclosure statements failed to accurately disclose information to the condominium purchasers. Appellees submit that the disclosure statements did not accurately disclose the proper amount of monthly fees required to maintain the association and to be paid by the members.

{¶ 6} On March 8, 2007, appellees filed an amended complaint against appellants, asserting numerous claims.1 Specifically, appellees asserted claims for declaratory relief, conversion, unjust enrichment, due and owing capital contributions, and due and owing condominium fees, inter alia, as well as claims asserted as a class by Montgomery and Dominak, on behalf of all the New Albany Park condominium owners, for fraud, intentional misrepresentation, negligent misrepresentation, and violation of the Consumer Sales Practices Act.

{¶ 7} On July 5, 2007, appellants filed a motion for partial judgment on the pleadings with respect to three of appellees’ class claims. On September 24, 2007, appellees filed a motion seeking class certification. Attached to the motion for class certification were affidavits signed by Montgomery and Dominak in [466]*466which they outlined their qualifications to act as the class representatives in this action.

{¶8} On July 9, 2008, the trial court granted appellants’ motion for partial judgment on the pleadings, thereby granting judgment in favor of appellants with respect to the class claims for fraud, negligent misrepresentation, and violation of the Consumer Sales Practices Act. As a result, the only claim remaining for class certification was the claim for intentional misrepresentation, in which appellees asserted that appellants had misrepresented the estimated monthly condominium fees in the disclosure statements, in violation of R.C. 5311.26.

{¶ 9} On January 11, 2008, the trial court granted appellees’ motion to certify as a class action the remaining claim for intentional misrepresentation. Appellants filed a timely appeal and assert two assignments of error for our review:

1. The trial court erred by granting class certification to a class of condominium purchasers to address alleged violations of R.C. 5311.26 where the right to bring a class action to address alleged violations of R.C. 5311.26 is expressly reserved to the attorney general by R.C. 5311.27.
2. The trial court abused its discretion by granting class certification where the putative class representatives do not satisfy the requirements of Civ. R. 23.

II. First Assignment of Error — R.C. 5311.26 and 5311.27

{¶ 10} In their first assignment of error, appellants argue that the trial court erred in granting class certification to appellees on a claim involving a violation of R.C. 5311.26 because the right to bring a class action to address violations of this statute is expressly reserved to the attorney general by R.C. 5311.27(C)(1). This assignment of error involves an issue of statutory construction. Statutory construction presents a legal issue, which an appellate court must review de novo. Fields v. Fairfield Cty. Bd. of MR/DD, 10th Dist. No. 09AP-208, 2009-Ohio-4388, 2009 WL 2623707, ¶ 15; Ceccarelli v. Levin, 127 Ohio St.3d 231, 2010-Ohio-5681, 938 N.E.2d 342, ¶ 8.

{¶ 11} Appellants argue that had the General Assembly intended to allow condominium unit owners to bring a class action to recover damages based upon a violation of R.C. 5311.26, it would have included a mechanism by which a unit owner could do so. However, because it did not include such a mechanism, appellants contend that the General Assembly did not intend to allow that type of remedy for individuals and instead intended to limit its availability.

{¶ 12} In support of their position, appellants cite R.C. 5311.23, which specifically allows one or more condominium unit owners to bring a class action on behalf of all unit owners with respect to actions involving failure to comply with condominium instruments. In reading R.C. 5311.23 in pari materia with R.C. [467]*4675311.27, appellants argue that it is obvious that the legislature intended to treat these two claims, which arise under two different circumstances, differently. Thus, appellants assert that the legislature has plainly and unambiguously conveyed its intent to exclude a class action brought by individuals for a violation of R.C. 5311.26.

{¶ 13} Appellants also argue that other legislatures, such as those in Texas and the District of Columbia, have statutes that expressly allow condominium purchasers to file a class action to address violations of disclosure requirements like those found in R.C. 5311.25 and 5311.26. For example, appellants submit that the Texas and District of Columbia statutes do not limit the right to bring such class actions to their attorneys general and that the Ohio General Assembly could have easily followed suit, had it intended not to place such limitations on the right to bring a class action.

{¶ 14} In addition, appellants rely on the doctrine of expressio unius est exclusio alterius in support of their argument that the legislature intended to limit the right to bring a class action for violations of R.C. 5311.26 to the attorney general. Appellants assert that because R.C. 5311.27 expressly provides the attorney general with this remedy but does not mention that same remedy with respect to a class of individual citizens, the remedy was not intended to be available to them, since it was not expressly provided.

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Cite This Page — Counsel Stack

Bluebook (online)
2011 Ohio 2806, 195 Ohio App. 3d 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-albany-park-condominium-assn-v-lifestyle-communities-ltd-ohioctapp-2011.