Brian Junkins v. Spinnaker Bay Condominium Association

Citation2002 Ohio 872
Decision Date01 March 2002
Docket NumberOT-01-007,OT-01-006,02-LW-0718
PartiesBrian Junkins, et al., Appellants/Cross-Appellees v. Spinnaker Bay Condominium Association, Appellee/Cross-Appellant v. Jamestown Drive Inc., Appellant/Cross-Appellee Court of Appeals
CourtUnited States Court of Appeals (Ohio)
v. v. Jamestown Drive Inc Appellant/Cross-Appellee

Thomas A. Coughlin, Franklin C. Malemud, William F. Kolis, for appellants Brian Junkins, Debra Junkins, and Constance McDougal.

George C. Wilber, for appellee Spinnaker Bay Condominium Association.

Frank W. Reinheimer, for appellant Jamestown Drive, Inc.

OPINION

RESNICK M.L., J.

This case is before the court as a consolidated appeal from a judgment of the Ottawa County Court of Common Pleas, wherein after a trial to the bench, the lower court entered judgment in favor of appellee/cross-appellant, Spinnaker Bay Condominium Association ("Association"). This cause arises from the following relevant facts.

In August 1995, plaintiffs-appellants/cross-appellees, Brian Junkins and Debra Junkins purchased a unit ("Unit 117") in Spinnaker Bay Yacht & Beach Club Resort Condominium ("Spinnaker Bay"). Spinnaker Bay is located along the shore of Lake Erie in Port Clinton, Ottawa County, Ohio. It was developed by Spinnaker Bay Partners. All units in Spinnaker Bay were designed with attached open air decks at the ground level. The decks are denominated "limited common areas" in the Declaration and By-Laws of Spinnaker Bay ("Declaration"). The first twelve units constructed in Spinnaker Bay were on the lakefront.

In 1994, plaintiff-appellant/cross-appellee, Jamestown Drive, Inc. ("Jamestown"), negotiated with Spinnaker Bay Partners for the pre-construction purchase of a unit ("Unit 125") in Spinnaker Bay. As part the purchase negotiations, Jamestown requested, among other things, an upper level deck in addition to the ground level deck. This request was denied, and at the time of the closing in October 1995, Unit 125 was indistinguishable from the other units in Spinnaker Bay. Scott Keils, owner and President of Jamestown, resides in Unit 125.

On September 1, 1995, a letter was sent to the Association's Board of Trustees ("Board"). The letter reads:

"We, the owners of the front 12 units [the lakefront units], request your review and approval of the following optional improvement.
"The ground level units to install on the deck Four Seasons Series 230 White Sunrooms (picture attached) with a shed roof. If another manufacturer is used, it must match the existing units as close as possible.
"Each owners new room exterior will be maintained by that owner. Failure to maintain this area will be done by the Association and an assessment plus fine charged to the unit owner."

The letter was purportedly signed by all twelve front unit owners. However, Scott Kiels did not personally sign the document; he provided "his neighbor" with verbal authorization to sign his name. Moreover, Kiels' name is listed only in his individual capacity, not as an agent for Jamestown, the actual owner of Unit 125. Furthermore, testimony at the trial on this cause revealed that a majority of the twelve units were still owned by Spinnaker Bay Partners, that is, the buyers, including Jamestown, had not closed on the property as of the date of the letter.

The letter includes a sketch of a glass-sided, aluminum-framed enclosure with a flat sloping roof that is constructed on the existing deck. An accompanying page from a brochure depicts the "Series 230 Patio Sunroom" as a glass-sided, aluminum-framed enclosure with either a "Cathedral roof or lean-to design." The letter was sent, by certified mail, to Morgan Mitchell Development Corporation, the builder of the units in Spinnaker Bay and a partner in Spinnaker Bay Partners. At that time, Mark Mitchell, the Vice-President of Morgan Mitchell Development Corporation, was the statutory agent for the Association and was also on the Board. According to Mark Mitchell, he verbally told one of the signatories of the September 1995 letter, that the unit owners could not enclose their decks.

In the spring of 1996, Scott Keils enclosed the ground level deck of Unit 125 and constructed an upper level deck, with a hot tub, on top of that enclosure. Keils built the enclosure on site using "treated structural posts; three-quarter inch plywood sheeting, two by ten; structural floor joists treated railings; treated lumber," as well as vinyl siding, vinyl windows and glass sliding doors. The interior of the room is dry-walled and is heated and air-conditioned. Keils testified that it is used as a "TV room, sitting area." He admitted that the room is incorporated into Unit 125's living space, adding over one hundred eighty square feet to the living area.

On April 16, 1996, the Association sent a letter to Scott Keils notifying him that the modifications to the deck of Unit 125 violated the Declaration. The Association subsequently commenced a suit against Jamestown, but voluntarily dismissed that action, without prejudice, in 1997.

The Junkins started to enclose the deck attached to Unit 117 in February 1998. On February 8, 1998, Brian Junkins received a letter from the Association. The letter stated that the construction of the addition to Unit 117 violated the Declaration. It ordered the cessation of construction and requested that the deck be returned to its former state.

The Junkins, however, continued with the construction of the sunroom. They patterned the addition according to the room added to Unit 125. The room has a conventional wood frame, was built on site, with a finished interior, including wallpaper, and has sliding glass doors. The addition is heated and air-conditioned through the heating system of the original unit. The room is usable throughout the year, and like Unit 125, contains over one hundred eighty square feet of living area.

On September 22, 1998, Brian and Debra Junkins commenced the instant action asking the common pleas court to declare that, in erecting the addition to Unit 117, they complied with the Association's Declaration. The Association filed an answer and six counterclaims, all of which rested on the Junkins's alleged violations of various provisions of the Declaration. The Association prayed for a declaratory judgment in its favor and a permanent injunction.

In January 1999, the Association filed suit against Jamestown. Like the counterclaims leveled against Brian and Debra Junkins, this suit requests a declaratory judgment finding that Jamestown violated certain provisions of the Declaration by constructing an addition and upper level deck on its lower level deck and for a permanent injunction ordering restoration of the deck to its original condition. The trial court later consolidated the two cases. Furthermore, prior to trial, Brian and Debra Junkins sold Unit 117 to Constance J. McDougal, who was later joined as a new party plaintiff.

In the meantime, the Junkins filed a motion for summary judgment asserting that under Article XX, Section 2 of the Declaration, their dispute with the Association was subject to arbitration. According to the plaintiffs, they sought arbitration prior to instituting their action for a declaratory judgment. The letters attached to the motion for summary judgment indicate that the Association rejected the claim that Article XX, Section 2 was applicable in the instant case.

In the alternative, the Junkins argued that they were entitled to summary judgment because no genuine issue of material fact existed on the question of whether they received "implied approval" of their written request to erect a sunroom on their deck. The Junkins relied on Article III, Section 2(O), of the Declaration, which provides:

"No building, fence, wall, sign, or other structure shall be commenced, erected, or maintained upon the Condominium Property, or any part thereof, nor shall any exterior addition to or change or alteration therein be made, until the plans and specifications showing the nature, kind, shape, height, materials, color, and location of the same shall have been submitted to and approved in writing by the Board or its designated representative, as to harmony of external design, color, and location in relation to surrounding structures and topography. In the event the Board, or its designated representative, fails to approve or disapprove such plans and specifications within sixty(60) days after they have been submitted to it, approval will not be required and these provisions will be deemed to have been fully complied with."

According to the Junkins, their plan for a sunroom was "approved" when the Board or its designated representative failed to respond, in writing, within sixty days to their letter dated September 1, 1995. In her supplemental motion for summary judgment, Constance McDougal also claimed that she was entitled to summary judgment because no genuine issue of material fact existed as to whether the Association's counterclaims were barred by the affirmative defenses of laches and equitable estoppel.

In its motion for summary judgment, the Association asserted that the Junkins (1) waived their right to arbitration by filing suit; and (2) the property issues in this cause were not arbitrable. Additionally, the Association contended that (1) the letter sent to the builder of the condominiums did not constitute "plans and specifications" within the meaning of Article III, Section 2(O).

The Association further argued that, assuming that implied approval existed, the actual addition, as constructed, did not conform to the structure proposed in the letter. The Association contended that, even if Board approval was implied, the enclosure of the deck violated R.C 5311.04(D)and Article XVIII, Section 1 of the Declaration. Both the statute and Article XVIII set forth circumstances...

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