Stony Ridge Hill Condominium Owners Ass'n v. Auerbach

• Citation: 64 Ohio App.2d 40,18 O.O.3d 26,410 N.E.2d 782
• Parties: , 18 O.O.3d 26 STONY RIDGE HILL CONDOMINIUM OWNERS ASSN., Appellee, v. AUERBACH et al., Appellants. 1
• Decision Date: 12 January 1979
• Court: United States Court of Appeals (Ohio)

Page 40

64 Ohio App.2d 40

410 N.E.2d 782, 18 O.O.3d 26

STONY RIDGE HILL CONDOMINIUM OWNERS ASSN., Appellee, v. AUERBACH et al., Appellants. ¹

Court of Appeals of Ohio, Sixth District, Erie County.

Jan. 12, 1979.

Syllabus by the Court

1. Pursuant to R.C. 5311.04(A), each and every owner of condominium property has an undivided ownership in the entire common area of the building and such common area includes the roof of the building. Each person who purchases a condominium unit, as a result of a misrepresentation, has a right to have the whole damage to the entire common area of the building remedied and completely satisfied.

2. Pursuant to R.C. 5311.20, the unit owners association, on behalf of all unit owners and for each of them, is the proper party to bring an action for damages pertaining to the common areas sustained by any or all of the unit owners.

3. R.C. 5311.20, empowering the unit owners association to bring an action for damages pertaining to the common areas, is not subject to the provisions in the declaration of condominium ownership and the bylaws executed and filed pursuant to R.C. Chapter 5311, for nowhere in R.C. 5311.20 is any reference made to declarations or bylaws. Thus, a provision in the declaration releasing the condominium builder and its representatives from liability is invalid since the provision is in conflict with R.C. 5311.20.

4. Temporary damage is that damage which abates by the discontinuance of the wrong causing the injury, or which the owner by his act can abate. For temporary damage to a building, the measure of compensatory damages is the reasonable cost of restoring the building to the condition it would have possessed if no wrong had been committed, plus the reasonable value of the loss of use of the building between the time of injury and restoration, unless such cost of restoration exceeds the difference in the market value of the property as a whole before and after the injury. If the cost of restoration exceeds the difference in market value, the difference in market value before and after the injury becomes the measure of damages.

Murray & Murray Co., L. P. A., and Patrick Murray, Sandusky, for appellee.

Flynn, Py & Kruse Co., L. P. A., John A. Coppeler, Sandusky, and Elmer A. Bessick, Elyria, for appellants.

CLIFFORD F. BROWN, Judge.

Defendants Joseph Auerbach and Stony Ridge Hill Condominium, Inc., appeal from a judgment on a jury verdict in the sum of $14,543, as compensatory damages, and $4,125, as punitive damages, awarded to plaintiff, Stony Ridge Hill Condominium Owners Association.

Plaintiff, hereinafter designated as Owners Association, cross-appeals from a directed verdict in favor of defendants Louis Billetter and Paul Goodman.

Billetter, Goodman, and Auerbach are founders, sole shareholders, and officers of Stony Ridge Hill Condominium, Inc. (hereafter referred to as Stony Ridge), a corporation formed to build and sell condominiums. In 1971 and 1972, the corporation built and sold to 24 individual purchasers a 24-unit dwelling known as The Stony Ridge Hill Condominium, Building A, and a detached garage. The Owners Association consists of the current owners of the 24 units of Building A. The Owners Association brought suit against Billetter, Goodman, Auerbach, and Stony Ridge Hill Condominium, Inc., for the negligent construction of the roofs on Building A and the garage, for breach of implied and express warranties as to the roofs, for willful breach of contract, and for fraudulent misrepresentation. The Owners Association alleged that unit owners had been promised roofs for the dwelling and the garage which were of sufficient quality to last for 20 years, but that the roofs installed were defective "five-year roofs." They maintained that the garage roof leaked and the roof of the dwelling showed signs of rot.

Defendants' first assignment of error is as follows:

"The trial court erred in overruling the motion of defendants-appellants for a directed verdict at the close of all the evidence, and in overruling their motion for a judgment notwithstanding the verdict."

Under the umbrella of this assignment of error, defendants first contend that reasonable minds could only conclude upon all the evidence adduced that no actionable misrepresentation relating to the roofs was made by them. Specifically, defendants assert that their representation that the roof was a "twenty-year roof" involved a phrase with no specific factual meaning and that this term does not relate to a present or past fact.

This argument has no merit. Defendant Auerbach, in answer to a written interrogatory, and all the building experts who testified ascribed a specific meaning to the term "twenty-year roof," stating that the term referred to the quality of the roof as a present fact ascertainable at the time of the representation.

Defendants further contend and argue that the roofs installed for the condominium and garage buildings were sufficient to last for a period of twenty years or longer if they had been properly maintained. This argument is without merit. Building experts, Ed Feick and Jim Blaine, gave credible testimony refuting this contention of defendants, amply supporting the resolution of this factual issue by the jury in favor of plaintiff. There is other corroborative evidence on this issue, also.

Next, defendants contend that there was no evidence that the alleged misrepresentation of a "twenty-year roof" caused any damage to the plaintiff. Specifically, defendants argue there was no evidence to prove a cause and effect relationship between the misrepresentation and the injury. 24 Ohio Jurisprudence 2d 740, Fraud and Deceit, Section 152. This contention is, likewise, without merit. The record contains abundant evidence that the plaintiff replaced the roof at a cost of $18,000, because it wore out in less than five years as a direct result of its incorrect application and its substandard materials, which did not fit the specifications for materials for a "twenty-year roof" as represented.

As part of the first assignment of error, defendants also contend that all 24 members of the Owners Association are not entitled to a recovery against the defendants for the alleged misrepresentations, which were made, if at all, to only a few of such members and at a time prior to the existence of the Owners Association. As part of this contention, defendants assert that only four unit owners of the 24 owners testified that they sustained damage as a result of the alleged misrepresentations pertaining to the "twenty-year roof," and that this does not mean that all 24 unit owners are entitled to recover for misrepresentation.

This contention and argument of defendants is without merit. It ignores the statute pertaining to condominium ownership. Pursuant to R.C. 5311.04(A), each and every owner of condominium property has an undivided ownership in the entire common area of the building and such common area includes the roof of the building. Each person who purchased a condominium unit, as a result of the misrepresentation, has a right to have the whole damage to the entire common area of the building remedied and completely satisfied.

Defendants' argument that 20 owners who did not testify concerning misrepresentation have no right to recover damages ignores the statutory right and remedy of the Owners Association as a legal entity to sue defendants for the damage sustained by the condominium owners comprising the Owners Association.

R.C. 5311.20 authorizes the transfer of all causes of action pertaining to the common area of the building to the Owners Association:

"In any action relating to the common areas and facilities or to any right, duty, or obligation possessed or imposed upon the unit owners association, by statute or otherwise, the unit owners association may sue or be sued as a separate legal entity. In any such action, service of summons or other process may be made upon the unit owners association by serving the same personally upon the president or other chief officer thereof or upon the person named in the declaration as the person to receive service of process therefor, or by leaving the same at the residence or place of business of such person set forth in the declaration. Any such action brought by or on behalf of the unit owners association shall be pursuant to authority granted by its board of managers."

The Owners Association, on behalf of all unit owners and for each of them, is the proper party to bring an action for damages pertaining to the common area sustained by any or all of the unit owners. Wittington Condominium Apartments, Inc. v. Braemar Corp. (Fla.App.1975), 313 So.2d 463. Payment by defendants of only one-sixth of the roof damage, representing the share of four unit owners, and the consequent repair of only one-sixth of the roof would still leave the roof in the same leaky condition, and would be the equivalent of giving plaintiff no legal remedy or relief whatever.

Lastly, as part of the first assignment of error, defendants contend that the Owners Association adopted and ratified the Declaration of Condominium Ownership and thereby released defendants from all liability to plaintiff and its members.

Defendants call attention to the first meeting of the Owners Association on January 27, 1973, when the Owners Association adopted a resolution which, inter alia, provided:

"Whereas, there is recorded in the office of the Recorder of Erie County, Ohio, in Volume 417 of Deeds, pages 904-937, both inclusive, an instrument entitled Declaration of Condominium Ownership for Stony Ridge Hill Condominium, Inc., followed immediately, on pages 938-967, both inclusive, by an instrument entitled By-Laws of Stony Ridge Hill Condominium Owners' Association, Inc., incorporated as part and parcel of the Declaration, and as Exhibit B thereof; and

"Whereas, said instruments provide for the establishment of this present organization, ...