COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69765 GARDENS OF RAINTREE CONDOMINIUM : ASSOCIATION : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION RAINTREE CONDOMINIUM ASSOCIATION : NO. 1, ET AL. : : Defendants-Appellants : : DATE OF ANNOUNCEMENT OF DECISION JULY 18, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 260484 JUDGMENT Reversed; judgment for defendants-appellants. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: JOHN H. WEST, ESQ. STEVEN M. OTT, ESQ. The Commerce Place Bldg. 50 Public Square Suite 303 Suite 600 7123 Pearl Road Cleveland, Ohio 44113 Middleburg Hts., Ohio 44130 - 2 - JAMES M. PORTER, J., Defendants-appellants Raintree Condominium Association No. 1 ("Raintree") and Summerset of Raintree Condominium Association ("Summerset") appeal from summary judgment entered in favor of plaintiff-appellee Gardens of Raintree Condominium Association ("Gardens") which held that defendants were contractually bound to pay a pro rata share of plaintiff's costs of repair of the parking lot adjacent to plaintiff's condominium facilities. Defendants contend that the trial court misinterpreted the controlling condominium documents governing the parties respective obligations and that defendants were entitled to summary judgment in their favor rather than the plaintiff. We find merit to the appeal, reverse and enter judgment for the defendants-appellants. The pertinent facts are set forth below. The three condominiums at issue were developed and constructed on adjacent properties in Olmsted Falls by the same developer, Flair Builders, Inc. The three condominium associations, parties herein, share the use and expenses related to defined roads and other common facilities including swimming pools, tennis courts, picnic areas and athletic fields. The developer filed with the County Recorder in 1978 four separate sets of organizational documents with regard to the three condominium associations. Each has its own set of documents. The fourth set is the Declaration of Covenants, Restrictions and - 3 - Easements ("The General Provisions") which governs the relationships between all three condominium associations. The General Provisions set forth the developer's intention to create the three condominium associations, each of which would have the use of defined Common Facilities, Condominium Roadways and Adjacent Roadways. The costs for maintaining the Common Facilities, Condominium Roadways and Adjacent Roadways are shared by each association in accordance with the proportion of the number of units in the association, compared to the combined units in all of the associations. General Provisions, 1(p)(1). Paragraph 1(o) defines "Common Facilities Costs" as: ***(v) the costs incurred, from time to time, in maintaining, repairing, removing, resurfacing and replacing any paving, asphalt or other surface materials of the Condominium Roadways and the Adjacent Roadways. Paragraph 1(i) defines "Condominium Roadways" as: *** such roadways for ingress and egress as Grantor shall construct on the Exhibit A Premises and as shall be designated in a Recorded Instrument to tie into and connect with the Adjacent Roadways (hereinafter defined). Paragraph 1(m) defines "Adjacent Roadways" as: *** such roadways for ingress and egress as any Grantor shall construct on the Adjacent parcels or any part thereof and as shall be designated in a Recorded Instrument to tie into and connect with the Condominium Roadways. During the summer of 1990, plaintiff Gardens incurred costs for the repair of one section of the parking lot area located on its common area. The repaired parking lot was directly in front of - 4 - Building B, in the area designated as "parking lot" as set forth in the plat map for plaintiff's condominium. Plaintiff sought contribution from defendants of their pro rata share of $7,749, the amount Gardens incurred to repair its parking lot. Plaintiff contended the cost of repair to the parking lot was to be shared pro rata by the defendants as provided for in the General Provisions of the recorded condominium documents since the parking lot area was used in part by all the condominium unit owners for access to the swimming pool, picnic areas and athletic facilities ("Condominium Recreational Facilities") and was an Adjacent Roadway as defined in the condominium instruments. Defendants contended the area repaired in the summer of 1990 by plaintiff does not fall within the defined areas of the General Provisions, was not an Adjacent Roadway and therefore the defendants are not required to contribute to the parking lot repair costs. Plaintiff Gardens filed suit on November 1, 1993, seeking a judgment against defendants Raintree and Summerset for contribution to the parking lot repairs and sought a declaration that the General Provisions control the duties, rights and obligations of the parties. Plaintiff further asked the court to declare: *** that the Declaration of Covenants, Restrictions and Easements, and the General Provisions filed at Volume 14853, Page 903 et seq. of the Deed of Records are the controlling documents which govern and set forward the duties, rights and obligations of the parties to the herein lawsuit in relationship to certain access roads and recreational - 5 - facilities described therein and further declaring that the Rules of Procedure for the Raintree Recreational Facility Committee contradict the General Provisions and are therefore null, void and unenforceable and further declaring that Defendants Raintree and Summerset are required under the General Provisions to pay their pro rata share for the use, maintenance, repair and replacement of all access roads and recreational facilities which are on the parcels of real estate as described in said General Provisions and for costs, interest and attorneys fees. The parties filed cross-motions for summary judgment based on the General Provisions and other association documents. On October 4, 1995, the trial court rendered summary judgment in favor of plaintiff Gardens and against the defendants Raintree and Summerset, which stated as follows: 1) Judgment is rendered against Defendant Raintree Condominium Association No. 1 in the amount of $3,605.00 as and for compensatory damages, 2) Judgment is rendered against Defendant Summerset of Raintree Condominium Association in the amount of $1,305.00 as and for compensatory damages, 3) The Declaration of Covenants, Restrictions and Easements, i.e. the General Provisions, filed at Volume 14853, Page 902 et seq. of the Cuyahoga County Recorder Deed Records are the controlling documents which govern and set forward the relative rights, duties, and obligations of all three (3) of the parties (Plaintiff and both Defendants) of the herein lawsuit. 4) The Rules of Procedure for the Raintree Recreational Facility contradict the General Provisions and the Declaration and Bylaws of the Plaintiff and both of the Defendants in this action, - 6 - 5) The Rules of Procedure for the Raintree Recreational Facility are null, void and unenforceable, 6) Defendants Raintree Condominium Association No. 1 and Summerset of Raintree Condominium Association are required under the General Provisions and under their own Declaration and Bylaws to pay their pro rata share of the costs for the use, maintenance, repair and replacement of all common facilities, condominium roadways and adjacent roadways as defined in said General Provisions, 7) Costs and interest at the rate of 10% are assessed against the Defendants commencing from November 1, 1993. Defendants, Raintree Condominium No. 1 and Summerset of Raintree's Cross Motion For Summary Judgment, filed December 5, 1994, is overruled. On this appeal, none of the parties take issue with the trial court's judgment set forth in paragraphs 3, 4 or 5. In other words, they agree the General Provisions are controlling, not the "Rules of Procedure." The two assignments of error will be addressed in the order asserted. - 7 - I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING SUMMARY JUDGMENT TO APPELLEE, GARDENS OF RAINTREE CONDOMINIUM ASSOCIATION AGAINST APPELLANT, RAINTREE CONDOMINIUM ASSOCIATION NO. 1 IN THE AMOUNT OF $3,605.00 AND AGAINST APPELLANT, SUMMERSET OF RAINTREE CONDOMINIUM ASSOCIATION IN THE AMOUNT OF $1,305.00, BECAUSE APPELLEE IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. The critical issue on this appeal is whether the General Provisions require the defendants to reimburse the plaintiff for a pro rata share of the repair of a parking lot located on plaintiff's property which is used by all the condominium unit owners for access to the commonly used facilities such as a swimming pool, picnic area and athletic fields. Defendants contend that the General Provisions do not require them to pay for repairs to plaintiff's parking lot because defendants claim that "the parking lot is not part of the Common Facilities (neither an Adjacent Roadway nor a Condominium Roadway) as defined in the General Provisions." (Aplts. Brf. at 5). After a careful review of the briefs, condominium documents, and the record, we agree with the defendants' contentions. STANDARDS FOR SUMMARY JUDGMENT Under Civ. R. 56(C), summary judgment is proper when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. - 8 - State, ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Supreme Court of Ohio modified the summary judgment standard as was applied under Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. Presently, under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. The nonmoving party then has a reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Dresher at 295-96. The nonmoving party must set forth "specific facts" by the means listed in Civ. R. 56(C) showing that a "triable issue of fact" exists. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115; Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. - 9 - This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ. R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. Plaintiff stated in its motion for summary judgment (at p. 4) that the parking lot area it repaired constituted "'Adjacent Roadways' as defined in Section 1(m) of the General Provisions." Plaintiff's argument in this Court is also based upon this contention. (Aples. Brf. at 9). Paragraph 1(m) of the General Provisions does not define or describe the parking lot in dispute as an Adjacent Roadway. It states: "Adjacent Roadways" shall mean such roadways for ingress and egress as any Grantor shall construct on the Adjacent Parcels or any part thereof and as shall be designated in a Recorded Instrument to tie into and connect with the Condominium Roadways. Adjacent Roadways are designated as such in Section 2(a) of the same Instrument: - 10 - Grantor desires to dedicate the Condominium Roadways to be known as Raintree Boulevard and Magnolia Drive and further desires to dedicate the Adjacent Roadways to be known as Raintree Boulevard, Holly Boulevard, Cyprus Lane, Laurel Drive, and Summerset Lane to the City of Olmsted Falls, Ohio ***. There are no recorded instruments or plat maps of the condominium properties which designate plaintiff's parking lot as an "Adjacent Roadway." As the plat maps and General Provisions demonstrate, the repaired parking lot area is neither depicted, nor defined as an Adjacent Roadway. Although plaintiff Gardens argues that Exhibit G attached to its Reply Brief to Defendants' Joint Reply Brief is a map or drawing of the Gardens' property displaying the fact that the area in question is an Adjacent Roadway, we find no support for the argument in the exhibit. It still reflects a parking lot. The trial court did not offer any rationale for its construction of the General Provisions. However, governing documents established pursuant to Ohio's Condominium Act, R.C. 5311.19 must be strictly construed, since the condominium concept depends upon reasonable use and occupancy rules and restrictions. Georgetown Arms Condominium Unit Owners' Association v. Super (1986), 33 Ohio App.3d 132, 133-134. See, also, Monday Villas Property Owners Assn. v. Barbe (1991), 75 Ohio App.3d 167, 171; O'Neil v. Atwell (1991), 73 Ohio App.3d 631, 637. It is the General Provisions which must be analyzed to resolve the present dispute. The issue is not whether the Rules of - 11 - Procedure for Raintree Recreational Facility contradict or supersede the General Provisions. As the parties now agree, these Rules of Procedure are not at issue and are not relevant to the instant matter. Based on a review of the controlling paragraphs of the General Provisions, there is no obligation on defendants' part to contribute to or reimburse plaintiff for repairs to its parking lot. The trial court erred in granting summary judgment in favor of the plaintiff. Assignment of Error I is sustained. II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY OVERRULING APPELLANTS' MOTION FOR SUMMARY JUDGMENT. Based on our disposition of Assignment of Error I and the foregoing discussion, it is evident that defendants were entitled to summary judgment in their favor. Initially, we must note that as a general proposition, the denial of a motion for summary judgment is not considered a final appealable order. State ex rel. Overmeyer v. Walinski (1966), 8 Ohio St.2d 23, 37. However, the Supreme Court of Ohio has held that the judgment denying such a motion can be appealed after an adverse final order has been rendered in the case. Balson v. Dodds (1980), 62 Ohio St.2d 287, 289; McCabe/Marra Co. v. Dover (1995), 100 Ohio App.3d 139, 160. This Court has held that when a trial court grants a summary judgment motion in the same journal entry in which it denies a - 12 - competing summary judgment motion, the former aspect of the entry is a final appealable order. State Farm Mut. Auto Ins. Co. v. Cincinnati Ins. Co. (June 17, 1993), Cuyahoga App. No. 62930, unreported. See, also, Bean v. Metro Property & Liability Ins. Co. (1990), 68 Ohio App.3d 732, 737. Therefore, in appealing from the grant of plaintiff's summary judgment motion, defendant can also contest the denial of its competing motion. Assignment of Error II is sustained. Summary judgment for plaintiff-appellee is reversed and vacated; summary judgment for defendants-appellants is entered herein. - 13 - It is ordered that appellants recover of appellee its costs herein taxed. It is ordered that a special mandate be sent to the Court of Common Pleas 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. JAMES D. SWEENEY, P.J., CONCURS. KARPINSKI, J., DISSENTS. (See dissenting opinion attached) JAMES M. PORTER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69765 : GARDENS OF RAINTREE CONDOMINIUM : ASSOCIATION : : Plaintiff-Appellee : : DISSENTING v. : : OPINION RAINTREE CONDOMINIUM ASSOCIATION : NO. 1, ET AL. : : Defendants-Appellants : : : DATE OF ANNOUNCEMENT OF DECISION: KARPINSKI, J., DISSENTING: I respectfully dissent. The majority opinion ignores relevant provisions of the parties' agreement to share common costs and gives a free ride to two associations, who refuse to pay their share of common costs while accepting the benefits, at the expense of the other association. The dispute involves repairs made to the U-shaped paved surface shared by the three condominium associations depicted in the center of Exhibit 1. The paved surface is located on the Gardens premises between the Raintree and Summerset sites. The paved surface provides access driveways to the Gardens premises and - 2 - also to the common recreational facilities shared by all three associations. In addition to providing ingress and egress, the paved surface around the parking garages provided for residents of the Gardens association can be used for outdoor parking by the residents of all three associations. This parking area is convenient to the swimming pool and tennis courts, which are 1/ located at the closed end of the paved surface. As noted by the majority, the General Provisions specifically provide that all three condominium associations share the Common Facilities Costs. Paragraph 1(o) defines Common Facilities Costs to include "(iv) the costs incurred, from time to time, in maintaining the Common Facilities." Paragraph 1(n)(i), in turn, defines the Common Facilities to include the Condominium Recreational Facilities. Finally, paragraph 1(j) defines the Condominium Recreational Facilities as follows: Condominium Recreational Facilities shall mean such recreational facilities and related amenities presently and hereafter situated upon the Exhibit A premises, together with the land on which said facilities and amenities shall be situated. [Emphasis added.] There is no dispute that the swimming pool and tennis courts depicted in Exhibit 1 are Condominium Recreational Facilities. The paved surface, which provides both access to and parking for these facilities, constitutes a "related amenity" within the scope of this provision. Permitting members of the Raintree and Summerset associations to use these amenities without paying their share of 1/ For clarification I have noted the location of the swimming pool and tennis courts on the exhibit. - 3 - maintenance costs, contrary to the General Provisions, is unsound .