COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59410 : GEORGETOWN OF THE HIGHLANDS : CONDOMINIUM OWNERS ASSOCIATION : : Plaintiff-Appellee : : -vs- : JOURNAL ENTRY : AND LEONARD W. YELSKY, ET AL. : OPINION : Defendants-Appellants : : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 21, 1991 CHARACTER OF PROCEEDING: Civil appeal from Cuyahoga County Common Pleas Court Case No. CP-146135 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: TIMOTHY N. TOMA MITCHELL J. YELSKY 27801 Euclid Avenue 1050 Leader Bldg. Suite 500 Cleveland, Ohio 44114 Euclid, Ohio 44132-3589 -2- KRUPANSKY, C.J.: Plaintiff-appellee Georgetown of the Highlands Condominium Owners Association ("Georgetown") filed a complaint against defendants-appellees Leonard and Elayne Yelsky (the "Yelskys") to recover delinquent maintenance fees and assessments on ten condominium units owned by the Yelskys. The complaint demanded foreclosure and marshalling of the liens granted for these fees pursuant to R.C. 5311.18 and other relief. Plaintiff filed a motion for summary judgment after Superior Savings Association, the bank holding the first and best liens on the ten units, and other interested parties answered the complaint. The trial court entered a judgment ordering foreclosure and a sheriff's sale of each of the ten units and retained jurisdiction to adjudicate the remaining claims. Plaintiff subsequently filed two motions to supplement the original decree: viz.; (1) to determine maintenance fees accruing after the filing of the complaint until confirmation of the sheriff's sale in addition to (2) attorney fees. Defendants opposed both these motions and filed motions to strike both supplemental motions and plaintiff's reply briefs. The trial court subsequently denied defendants' motions to strike the supplemental motions and reply briefs and granted plaintiff's supplemental motions concerning the maintenance and attorney fees. Defendants timely appealed raising three assignments of error. -3- Defendants' first assignment of error follows: I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING APPELLEE'S MOTION TO SUPPLEMENT DECREE, AND APPELLEE NEVER AMENDED ITS PRAYER FOR RELIEF PURSUANT TO OHIO CIVIL RULE 54(C) TO PUT APPELLANTS ON NOTICE OF APPELLEE'S RELIEF REQUESTED IN ITS MOTION TO SUPPLEMENT DECREE; APPELLEE'S MOTION TO SUPPLEMENT DECREE IS DEFICIENT IN SUBSTANCE AND FORM; APPELLEE FAILED TO DEMONSTRATE FACTS SUFFICIENT FOR THE TRIAL COURT TO GRANT THE MOTION TO SUPPLEMENT DECREE; AND, THE TRIAL COURT'S UNDERLYING JUDGMENT ENTRY DOES NOT SUPPORT THE GRANTING OF THE MOTION TO SUPPLEMENT DECREE, ALL TO THE APPELLANTS PREJUDICE AND DENIAL OF DUE PROCESS OF LAW GUARANTEED BY ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. Defendants' first assignment of error is without merit. Defendants argue the trial court denied them due process by improperly entering judgment against them personally in the amount of $53,600.47 since the complaint did not demand a defi- ciency judgment, the amount exceeds plaintiff's prayer for relief, and plaintiff's motion to supplement decree was improper. This contention is without merit. In addition to demanding the foreclosure and marshalling of liens placed on the units pursuant to R.C. 5311.18, plaintiff's complaint demanded the following: Judgment against Defendants, Yelskys, in the amount of Eighteen Thousand Nine Hundred Ninety- Six and 82/100 Dollars ($18,966.82), together with damages, prejudgment interest and postjudgment interest, court costs and attorney fees. (Emphasis added). -4- Since claims for deficiency judgments are ordinarily incident to foreclosure actions, the Ohio Supreme Court has concluded that demanding "in [the] petition, a judgment for the money claimed to be due" sufficiently states a claim for a deficiency judgment. Keller v. Wenzell (1873), 23 Ohio St. 579, 580; accord Shepherd v. Pepper (1890), 133 U.S. 626 (deficiency judgment may be granted under a prayer for general relief). Defendants' claim the amount of damages awarded by the trial court exceeds the demand in plaintiff's complaint is equally unpersuasive. The delinquent maintenance fees and assessments on the ten units prior to filing the complaint amounted to $18,996.82 as stated in the prayer for relief. However, additional fees continued to accrue after the filing of the complaint since defendants retained possession of the ten units until confirmation of the sheriff's sales extinguished their equity of redemption. See, Hill v. Windward Hills Condominium Ass'n (Bankr. N.D. Ohio 1989), 100 Bankr. 907. Plaintiff's complaint sufficiently provided notice to defendants of their potential liability for the maintenance fees which accrued after the complaint was filed. This Court has affirmed a trial court judgment in the amount of the original bond sought in the complaint plus post-complaint interest despite the party's failure to specify any specific monetary amount. DeFranco v. Village of Valley View (Nov. 29, 1990), Cuyahoga App. No. 57719, unreported. -5- Defendants' objection to plaintiff's motion to supplement the original decree is equally without merit. Defendants contend the trial court judgment ordering foreclosure and sheriff's sale of the ten units was a final judgment and did not provide for plaintiff's subsequent motion. The trial court's thirty-seven page journal entry, however, stated the following concerning each of the ten units: The court makes no finding as to the claims, liens, rights, title or interest of said defen- dants and Plaintiff (sic) as set forth in their respective pleadings filed herein, except to note that, by agreement of parties, such claims, liens, rights, title and interest of the hereinabove enumerated defendants and Plaintiff (sic) are hereby ordered transferred to the proceeds derived from the sale of said premises, after the payment of the costs of the within action, taxes due and payable and the amount hereinabove found due the Defendant (sic), Superior Savings Association and the same are hereby ordered continued until the further order of Court. Id. at paragraphs 11, 24, 37, 50, 63, 76, 89, 102, 115, and 128. (Emphasis added). This order does not constitute a final judgment since the order expressly reserved jurisdiction to the trial court with the words "until further order of the Court" and did not adjudicate all outstanding claims in the foreclosure proceeding. Ferrara Funeral Home, Inc. v. San Filipo Realty Co., Inc. (Nov. 12, 1987), Cuyahoga App. No. 52842, unreported; Central National Bank of Cleveland v. Fitzwilliam (July 14, 1983), Cuyahoga App. No. 44429, unreported. Accordingly, defendants' contention plaintiff failed to demonstrate grounds for relief from this -6- judgment pursuant to Civ. R. 60(B) is misplaced since the trial court never lost jurisdiction in the original action. Although arguably mislabelled, the motion to supplement decree was in fact a supplemental motion for summary judgment properly supported by an affidavit and invoices evidencing the claim for maintenance fees accruing on the ten units after the complaint was filed. Defendants failed to demonstrate any genuine issue of fact existed concerning the amount of delinquent maintenance fees due on the ten units. Just as with plaintiff's prior motion for summary judgment, the subsequent motion was unopposed. Cf. Forest City Enterprises, Inc. v. DeVito (Feb. 24, 1983), Cuyahoga App. No. 45169, unreported (trial court properly confirmed an arbitration award despite the fact the motion was captioned as one for modification of the award). Accordingly, defendants' first assignment of error is without merit and overruled. Defendant's second assignment of error follows: II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING APPELLEE'S MOTION FOR ATTORNEY FEES, AS THE FEES AWARDED ARE NOT FAIR, JUST OR REASONABLE UPON A FULL CONSIDERATION OF ALL THE CIRCUMSTANCES OF THE UNDERLYING CASE. Defendant's second assignment of error is without merit. Defendants argue the trial court's order granting plaintiff $5,617.50 in attorney fees based on the condominium declaration was improper and the amount was unreasonable. -7- Nottingdale Homeowners' Association, Inc. v. Darby (1987), 33 Ohio St. 3d 32, authorizes a trial court to award attorney fees under a provision contained in a condominium agreement as in the case sub judice "so long as the fees awarded are fair, just and reasonable" under the circumstances. Id. at syllabus; First Federal Savings Bank v. WSB Investments, Inc. (Mar. 29, 1990), Cuyahoga App. Nos. 56794 and 56795. Plaintiff's motion for attorney fees was supported by an affidavit from counsel together with a detailed description of the time and services performed in the case. Although defendants argue the amount of fees is substantial and generally dispute the necessity of certain interoffice conferences among plaintiff's counsel and the amount of time spent on other matters, we find the trial court did not abuse its discretion in granting the fees requested. The amount of fees awarded by the trial court is substantially less than the $12,268.89 affirmed by the Ohio Supreme Court in Darby where the condominium association was collecting less than $2,600 in delinquent assessments. Given that defendants failed to make payments on ten units, or approximately five percent (5%) of all of Georgetown's units, until the assessments accrued to more than $50,000 we cannot conclude the trial court's award was unreasonable under the circumstances. Defendants made only generalized objections to the motion and failed to request a hearing on the matter. Defendants now raise for the first time on appeal the failure of the trial court -8- to hold a hearing. Since defendants foreclosed the trial court from rectifying its error, if any, defendants cannot now raise this issue for the first time on appeal. Proctor v. Proctor (1988), 48 Ohio App. 3d 55, 58 ("an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been corrected or avoided by the trial court"). Accordingly, defendants' second assignment of error is without merit and overruled. Defendant's third assignment of error follows: III. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DENIED APPELLANTS' MOTIONS TO STRIKE APPELLEE'S REPLY BRIEFS, AND GRANTING APPELLEE'S MOTIONS TO FILE REPLY BRIEFS NUNC PRO TUNC, ALL IN VIOLATION OF CUYAHOGA COUNTY LOCAL RULE 11(D). Defendant's third assignment of error is without merit. A reviewing court will not reverse a trial court's decision denying motions to strike, or granting leave to file, briefs absent an abuse of discretion adversely affecting the substantial rights of a party. Defendants have neither demonstrated an abuse of discretion nor adversity in effecting the substantial rights of defendants; therefore, error, if any, is harmless given our resolution of defendants' first assignment of error. Accordingly, defendant's third assignment of error is without merit and overruled. Judgment affirmed. -9- It is ordered that appellee recover of appellants its costs herein taxed. The Court finds 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 Rule of Appellate Procedure. FRANCIS E. SWEENEY, J., and PATRICIA A. BLACKMON, J., CONCUR _______________________________ CHIEF JUSTICE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .