Michnowicz v. Hines

[Cite as Michnowicz v. Hines, 2012-Ohio-715.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
WILLIAM MICHNOWICZ, : APPEAL NO. C-110048
TRIAL NO. A-0902904
Plaintiff-Appellee, :
vs. : O P I N I O N.
DANIEL J. HINES, :
Defendant-Third-Party-Plaintiff- :
Appellant,
:
vs.
:
ROGER WELLS, d.b.a. MIKE’S
CONSTRUCTION, :
Third-Party Defendant. :
:
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed from is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: February 24, 2012
James W. Costin, for Plaintiff-Appellee,
Joyce V. Kimbler, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Judge.
{¶1} Defendant-appellant Daniel J. Hines appeals from a judgment of the
Hamilton County Court of Common Pleas directing a verdict for plaintiff-appellee
William Michnowicz in an action for damages caused after a water pipe in Hines’s
condominium unit ruptured. For the reasons that follow, we reverse the trial court’s
judgment.
I. Background Facts
{¶2} Both Michnowicz and Hines owned condominium units at The
Residences at Summit View (“the condominium.”) On December 24, 2006, a water
pipe broke within Hines’s unit. The water pipe had travelled through a vanity to
Hines’s bathroom sink, and when it ruptured, water escaped to Hines’s floor and to
Michnowicz’s unit below, causing damage.
{¶3} The condominium instruments, specifically Article XI, Section 2 of
the condominium’s declaration, imposed upon Michnowicz and Hines, as unit
owners, the responsibility to “repair and maintain” their own units and the
components within their own units. Michnowicz pursued a claim against Hines for
damages under R.C. 5311.23, which provides, in relevant part, that “a * * * unit
owner * * * is liable in damages in a civil action for harm caused to any person * * *
by that individual’s failure to comply with any lawful provision of the condominium
instruments.” 1
{¶4} At trial, Michnowicz demonstrated that the ruptured section of the
water pipe had been a component of Hines’s unit, and that Hines had had the
1 Hines filed a third-party complaint for indemnification or contribution against Roger Wells,
d.b.a. Mike’s Construction, claiming that Wells had negligently installed the water pipe. The trial
court granted summary judgment to Wells after Wells demonstrated that he had not performed
any of the construction work and had merely been a member of a limited liability company, now
dissolved, that had performed conversion work for the owners of the apartment building.
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responsibility to maintain it under the condominium’s declaration. But Michnowicz
did not present any evidence concerning what had caused the water pipe to fail.
{¶5} Hines offered testimony from Mark Nichting, his insurance adjuster,
on the cause of the water pipe’s failure, as told to Nichting by Tony Elder, the
individual who had repaired the water pipe. Elder had died before the trial, and the
trial court sustained Michnowicz’s objection to the admission of this part of
Nichting’s testimony on hearsay grounds.
{¶6} Nichting was permitted to testify, however, that the water pipe had
been installed in an atypical arrangement, and that Hines could not have inspected
the water pipe inside the vanity cabinet without taking apart the cabinet because the
installer had glued a drawer shut. Hines corroborated this later testimony, and he
noted that he had no training in plumbing, suggesting that he would not have known,
upon inspection, if the plumbing had been installed erroneously.
{¶7} Hines also testified that he had purchased the unit after the building
had been converted from apartments to condominiums, and that he had had no
notice of any leaks in his unit while living there. But Hines admitted that he had
never inspected the plumbing connected to his half-bath sink.
{¶8} Both parties moved for a directed verdict at the close of all evidence.
According to Michnowicz, he had conclusively established Hines’s liability by
demonstrating that Hines had had the responsibility to maintain the water pipe, that
the water pipe had ruptured, and that he had been damaged as a result.
{¶9} Hines countered by arguing in part that he owed Michnowicz only the
duty of ordinary care to maintain the water pipe and that Michnowicz had failed to
demonstrate a breach of this duty and proximate cause. The trial court granted
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OHIO FIRST DISTRICT COURT OF APPEALS
Michnowicz’s motion for a directed verdict and awarded him damages of $20,000.
This appeal followed.
II. Liability
{¶10} In his first assignment of error, Hines argues that the trial court erred
by directing a verdict in favor of Michnowicz on the issue of liability. The trial court
may grant a motion for a directed verdict only if, after construing the evidence in the
light most favorable to the party against whom the motion is directed, “reasonable
minds could come to but one conclusion upon the evidence submitted and that
conclusion is adverse to such party.” Civ.R. 50(A)(4). This reasonable-minds test
requires the court “to discern only whether there exists any evidence of substantive
probative value that favors the position of the nonmoving party.” Goodyear Tire &
Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769
N.E.2d 835, ¶ 3.
{¶11} The trial court’s decision to grant a motion for a directed verdict
involves a question of law. Accordingly, our review is de novo. Id. at ¶ 4.
{¶12} Initially, Hines complains that the trial court did not clearly state the
grounds for the directed verdict. Thus, before we can address whether the evidence
met the standard for a directed verdict, we must first determine the theory that
Michnowicz prevailed upon.
{¶13} Michnowicz contends that the trial court found in his favor because it
determined, after reviewing all the evidence, “that [Hines] was in ‘exclusive control’
of his unit, it was [Hines’s] duty to maintain the components of his unit, the water
pipe in [Hines’s] unit failed, and [Michnowicz] was damaged as a result.” He also
states that Hines had a “duty to maintain the water system so that it [did] not cause
damage whether the failure results from lack of maintenance or inspection or the
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OHIO FIRST DISTRICT COURT OF APPEALS
actions of a third party.” Although Michnowicz does not use the words “absolute
liability” to characterize the standard underlying his theory of recovery, we can only
conclude that “absolute liability” is what he means.
{¶14} Moreover, we conclude that the trial court imposed absolute liability
based on the failure of the water pipe and that the court did not impose liability
based on Hines’s violation of the duty to maintain, as set forth in the declaration. In
explaining its decision to remove the case from the jury, the court stated the
following:
Basically, in this particular case, the plaintiff is a sitting
duck. * * * [I]t is only fair that the upper dominant
landowner who had exclusive control over this situation,
within his own unit, within his own vanity, and the fact
that it is, shall I say glued to the pipes, is of * * * no
concern. His testimony was that yes with a hammer, I
could have taken this vanity out. I can see my own
pipes. It’s his responsibility. He could have taken it off.
And he, the defendant * * * will be held liable for any
and all damages caused by the flow of water.
{¶15} We are unable to agree, however, with Michnowicz and the trial court,
that the condominium association’s instruments and R.C. 5311.23(A) give rise to a
cause of action in absolute liability against a condominium unit owner for property
damage to other units caused by the failure of a component for which the owner had
the responsibility to maintain.
A. Ohio’s Condominium Act
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{¶16} Our analysis of this issue begins with a short summary of the
condominium as a form of real property. Condominium ownership is a statutory
creation. See R.C. Chapter 5311 (codifying Ohio’s Condominium Act and its
amendments).
{¶17} Under the unique condominium “regime,” real estate is divided into
separate spaces, known as “units.” Kuehnle and Williams, Ohio Condomium Law,
Section 1:1, at 1 (2011); see also R.C. 5311.03. The owners of the units also own an
undivided interest as tenants in common with all of the other owners of units in the
“common elements,” which is generally comprised of the remainder of the property
that is not within one of the units. Id.
{¶18} All owners of units in a condominium property belong to the
condominium’s “[u]nit owners association.” R.C. 5311.01(DD). This association
“administers” the condominium property. Id.; R.C. 5311.08(A)(1). The
condominium instruments set forth the plan for condominium ownership of the
property, including defining the unit and its components and the maintenance and
repair responsibilities of the association and the unit owner. See R.C. 5311.01(M).
{¶19} The statutory section that Michnowicz relies upon in his claim for
relief, R.C. 5311.23(A), provides that “a declarant, developer, agent, or unit owner
or any person entitled to occupy a unit is liable in damages in a civil action for
harm caused to any person or to the unit owners association by that
individual’s failure to comply with any lawful provision of the
condominium instruments.” (Emphasis added.) Subdivisions (B) and (C) of
R.C. 5311.23 generally provide a statutory right to a declaratory judgment action to
determine legal rights under the condominium instruments or to obtain an
injunction, and a statutory right to a class action by unit owners. Subdivision (D)
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authorizes the unit owners association to bring an action under the section “in its
own name, in the name of the board of directors, or in the name of the association’s
managing agent.”
B. The Condominium’s Instruments
{¶20} “The Declaration for the Residences at Summit View Condominium”
is part of the condominium’s instruments. See R.C. 5311.01(M). Article XI of that
declaration reads as follows:
Section 1. Association Responsibility. The Association
shall maintain and repair the Common Areas, including
and not limited to utility facilities serving more than one
(1) Unit, utility lines in the Common Areas, lawns,
shrubs, trees, walkways, the balconies, and all the
buildings which are part of the Common Areas,
provided, however, that the Association shall not be
required to perform normal cleaning of the individual
unit balconies.
Section 2. Individual Responsibility. Each Unit Owner
shall repair and maintain the Unit or Units, and all
components thereof, owned by that Unit Owner, and the
balconies appurtenant to a Unit to the extent not the
obligation of the Association. Without limiting the
generality of the foregoing, this repair and maintenance
responsibility shall include repair and maintenance of
all windows, screens and doors, including the frames,
sashes and jambs, and the hardware therefor; and
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cleaning of the balconies. In the event a Unit Owner
shall fail to keep such balcony area clean, or in the event
the need for maintenance or repair of any part of the
Common Areas or Limited Common Areas is caused by
the negligent or intentional act of any Unit Owner or
Occupant, and the cost of repair is not covered by
insurance, the cost of such maintenance and repair shall
constitute a Special Individual Unit Assessment, as
hereinafter defined, on the Unit owned by such Unit
Owner. The determination that such maintenance or
repair is necessary, or has been so caused, shall be made
by the Board.
{¶21} Upon our review, we hold that the trial court erred by interpreting
Article XI, Section 2 and R.C. 5311.23(A) to impose on Hines absolute liability for
any damages to Michnowicz caused by the failure of a component in Hines’s unit that
Hines had the responsibility to maintain. Article XI, Section 2 merely sets forth the
responsibility of the owner to maintain the unit and its components, but it does not
define the scope of the duty to maintain.
{¶22} And R.C. 5311.23(A) simply subjects unit owners to statutory liability
to others for damages caused by the failure to comply with a provision of the
association’s instruments. The trial court effectively eliminated this element of
proximate cause. Further, R.C. 5311.23(A) does not define a standard of care for the
underlying violation of a provision, and we do not believe the General Assembly
intended it to.
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{¶23} Thus, to prevail on his cause of action under R.C. 5311.23(A),
Michnowicz must establish (1) Hines’s responsibility to maintain the water pipe
under Article XI, Section 2 of the condominium declaration, (2) Hines’s failure “to
maintain” it, as contemplated by this provision, (3) and an injury proximately caused
by this failure to comply with this provision.
{¶24} The trial court erred by applying an absolute liability standard. And,
even if the trial court had applied the correct rule, we hold that the evidence would
not have support a directed verdict in favor of Michnowicz. See Civ.R. 50(A)(4).
Accordingly, we sustain the first assignment of error.
III. Damages
{¶25} In his second assignment of error, Hines argues that the trial court
applied the wrong measure of damages. This assignment of error is rendered moot
by our disposition of the first assignment of error, and we decline to address it. See
App.R. 12(A)(1)(c).
{¶26} Accordingly, we reverse the judgment of the trial court, and we
remand the case for further proceedings in accordance with law and consistent with
this decision.
Judgment reversed and cause remanded.
HENDON, P.J., and FISCHER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this decision.
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