Mccarty v. River Pines Rv Resort Condo. Ass'n Inc.
| Decision Date | 07 January 2011 |
| Docket Number | No. 2010 CVH 0289.,2010 CVH 0289. |
| Citation | 951 N.E.2d 165,164 Ohio Misc.2d 1 |
| Parties | McCARTY et al.v.RIVER PINES RV RESORT CONDOMINIUM ASSOCIATION, INC., et al. |
| Court | Ohio Court of Common Pleas |
OPINION TEXT STARTS HERE
Michael Minniear, Milford, for plaintiffs.1Michael R. Goodstein, Columbus, and Jessica B. Kling, for defendants.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.
{¶ 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 of 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.
{¶ 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.
{¶ 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. This rule is not a mere technicality designed to deny parties their day in court. Id.
{¶ 14} Civ.R. 12(B)(5): In order to succeed on a motion to dismiss pursuant to Civ.R. 12(B)(5), the movant must prove that there was insufficiency of service of process. Civ.R. 4 through 4.6 address the appropriate means of obtaining service of process. Further, “even though there is a presumption of proper service in cases where the Civil Rules on service are followed, ‘this presumption is rebuttable by sufficient evidence.’ ” Matteo v. Principe, Cuyahoga App. No. 92894, 2010-Ohio-1204, 2010 WL 1101658, ¶ 11, quoting Rafalski v. Oates (1984), 17 Ohio App.3d 65, 66, 17 OBR 120, 477 N.E.2d 1212. For instance, the certified mailing must be to an address that is reasonably calculated to cause service to reach the defendant. Id. at ¶ 11–12, citing Ohio Civ. Rights Comm. v. First Am. Properties (1996), 113 Ohio App.3d 233, 237, 680 N.E.2d 725, and Akron–Canton Regional Airport Auth. v. Swinehart (1980), 62 Ohio St.2d 403, 406, 16 O.O.3d 436, 406 N.E.2d 811. The court need not hold a hearing before ruling on a motion to dismiss pursuant to Civ.R. 12(B)(5). Lewis v. Buxton, Greene App. No. 2006 CA 122, 2007-Ohio-5986, 2007 WL 3317481, ¶ 10.
{¶ 15} Civ.R. 12(B)(6): A motion to dismiss for failure to state a claim upon which relief can be granted is procedural in nature and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545, 548, 605 N.E.2d 378. When considering a Civ.R. 12(B)(6) dismissal, the court must presume that all factual allegations of the complaint are true, and it must make all reasonable inferences in favor of the nonmoving party. It must then appear beyond doubt that the nonmoving party can prove no set of facts entitling it to the requested relief in the complaint. Avery v. Rossford, Ohio Transp. Improvement Dist. (2001), 145 Ohio App.3d 155, 164, 762 N.E.2d 388, citing Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753. See also Guess v. Wilkinson (1997), 123 Ohio App.3d 430, 434, 704 N.E.2d 328; Hanson at 548. However, the court is not required to presume the truth of conclusions in the complaint unsupported by factual allegations. Guess, 123 Ohio App.3d at 434, 704 N.E.2d 328.
{¶ 16} The court may not rely upon evidence outside of the complaint when considering a Civ.R. 12(B)(6) motion; however, “[m]aterial incorporated in a complaint may be considered part of the complaint for purposes of determining a Civ.R. 12(B)(6) motion to dismiss.” State ex rel. Crabtree v....
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