[Cite as Mason v. Townhouses of Catalpa, 2013-Ohio-3940.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
HOWARD MASON : : Appellate Case No. 25643 Plaintiff-Appellant : : Trial Court Case No. 12-CVF-580 v. : : TOWNHOUSES OF CATALPA : (Civil Appeal from : (Vandalia Municipal Court) Defendant-Appellee : : ...........
OPINION
Rendered on the 13th day of September, 2013.
...........
DAVID E. STENSON, Atty. Reg. #0042671, 120 West Second Street, 1210 Hulman Building, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant
SCOTT A. LIBERMAN, Atty. Reg. #0058432, One South Main Street, Suite 1590, Dayton, Ohio 45402 Attorney for Defendant-Appellee
.............
HALL, J.,
{¶ 1} Howard Mason appeals from the trial court’s entry of summary judgment against
him on his amended complaint seeking damages related to the repair of a natural-gas line. [Cite as Mason v. Townhouses of Catalpa, 2013-Ohio-3940.] {¶ 2} In his sole assignment of error, Mason contends the trial court erred in entering
summary judgment for the appellee, Townhouses of Catalpa, where genuine issues of material
fact exist.
{¶ 3} The record reflects that Mason owns a unit in the Townhouses of Catalpa, a
condominium association. According to his amended complaint, he purchased the unit in March
2011. (Doc. #22 at ¶4). In August 2011, he discovered the unit’s natural gas was not working.
(Id. at ¶6). A Vectren utility technician “determined that there was a blockage in the line between
the service line and the connection to the unit.” (Id. at ¶7). Mason paid to have the line repaired.
He then requested reimbursement from Townhouses of Catalpa, which claimed the repair was his
responsibility and refused to pay. (Id. at ¶8-11). In his amended complaint, Mason sought
damages from Townhouses of Catalpa for breach of contract, temporary loss of use of his unit,
and a violation of unspecified “Truth in Advertising Laws” with false advertising. (Id. at ¶12-24).
{¶ 4} After Mason failed to respond to requests for admissions, Townhouses of
Catalpa moved for summary judgment. (Doc. #30). It presented evidence that the gas-line
blockage was not in the common service line that supplied all units. Rather, the blockage was in
an underground line connecting Mason’s unit to the common line. Townhouses of Catalpa relied
on its governing declarations and by-laws to establish that Mason bore responsibility for repairing
blockage in the gas line to his unit. Finally, it cited its requests for admissions, which, among
other things, sought an admission that Mason had received the declarations and by-laws.
Townhouses of Catalpa argued that Mason’s failure to respond constituted an admission under
Civ.R. 36(A).
{¶ 5} Mason opposed the motion. (Doc. #34). He argued that discovery remained
“ongoing” and that he should be given time to cure his failure to respond to the requests for 3
admissions. He further argued that the requests for admissions, even if deemed admitted, did not
resolve the central issue, namely which party bore responsibility for repairing the blocked line.
Finally, Mason argued, without elaboration, that he interpreted the declarations and by-laws
differently than Townhouses of Catalpa and that this dispute constitutes a genuine issue of
material fact.
{¶ 6} The trial court entered summary judgment for Townhouses of Catalpa. (Doc.
#35). It found summary judgment proper “[f]or the reasons stated in Defendant’s Motion[.]” We
review this grant of summary judgment de novo, which means “we apply the standards used by
the trial court,” Brinkman v. Doughty, 140 Ohio App.3d 494, 497, 748 N.E.2d 116 (2d
Dist.2000). Summary judgment is appropriate when a trial court correctly finds “(1) that there is
no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a
matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion
is adverse to the party against whom the motion for summary judgment is made, who is entitled
to have the evidence construed most strongly in his favor.” Harless v. Willis Day Warehousing
Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).
{¶ 7} Mason’s assignment of error raises three issues. First, he claims a genuine issue
of material fact exists regarding the location of the gas-line blockage. Second, he contends the
requests for admissions, even if deemed admitted by his failure to respond, do not establish his
responsibility for the repair. Third, he argues that the trial court erred in failing to address the
truth-in-advertising claim in his complaint.
{¶ 8} Having reviewed the record, we believe the trial court erred in entering summary
judgment for Townhouses of Catalpa. In support of its motion, Townhouses of Catalpa submitted 4
an authenticated copy of the service-call tag from the Vectren technician who responded to
Mason’s complaint. The technician diagnosed the problem as “a block in houseline” that was
“somewhere underground.” (Doc. #30 at Exh. 2). For his part, Mason claimed the blockage was
“in the line between the service line and the connection to the unit.” (Doc. #22 at 7). The
service-call tag and Mason’s own allegations support Townhouses of Catalpa’s argument that the
blockage was in a gas line running from the common service line to Mason’s unit. Townhouses
of Catalpa persuasively argues in its brief that “[a] blockage between the service line (common
line) and connection to the unit can only be in one place–the houseline.”
{¶ 9} From a summary judgment perspective, however, the problem for Townhouses of
Catalpa is that nothing in the declarations and by-laws before us establishes Mason’s
responsibility for the repair. Townhouses of Catalpa argued below, and asserts on appeal, that its
governing documents “make an underground houseline the responsibility of the Family Unit
owner.” (Appellee’s brief at 4). Having examined the documents attached to Townhouses of
Catalpa’s motion for summary judgment, we find no support for this proposition.
{¶ 10} Townhouses of Catalpa relies on Declarations Article II, Section (A)(2)(a), which
reads:
2. Family Unit Owner. The responsibility of each Family Unit owner shall
be as follows:
(a) To maintain, repair and replace at his expense all portions of his Family
Unit, and all internal installations of such Family Unit such as appliances, heating,
plumbing, electrical and air conditioning fixtures or installations, and any portion
of any other utility service facilities located within the Family Unit boundaries. 5
(Doc. #30 at Exh. 1).
{¶ 11} On its face, this provision makes the repair of a gas line (i.e., “utility service”)
Mason’s responsibility only if it is located within the boundaries of his Family Unit. Nothing in
Article II, Section (A)(2)(a) establishes, however, that the blocked underground gas line at issue
was within the boundaries of Mason’s Family Unit. Resolution of that issue depends on the
definition of a Family Unit.
{¶ 12} Townhouses of Catalpa next relies on Declarations Article I, Section (A)(3),
which defines a Family Unit. It reads:
(A) Family Units. Each of the Family Units hereinbefore declared and
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Mason v. Townhouses of Catalpa, 2013-Ohio-3940.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
HOWARD MASON : : Appellate Case No. 25643 Plaintiff-Appellant : : Trial Court Case No. 12-CVF-580 v. : : TOWNHOUSES OF CATALPA : (Civil Appeal from : (Vandalia Municipal Court) Defendant-Appellee : : ...........
OPINION
Rendered on the 13th day of September, 2013.
...........
DAVID E. STENSON, Atty. Reg. #0042671, 120 West Second Street, 1210 Hulman Building, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant
SCOTT A. LIBERMAN, Atty. Reg. #0058432, One South Main Street, Suite 1590, Dayton, Ohio 45402 Attorney for Defendant-Appellee
.............
HALL, J.,
{¶ 1} Howard Mason appeals from the trial court’s entry of summary judgment against
him on his amended complaint seeking damages related to the repair of a natural-gas line. [Cite as Mason v. Townhouses of Catalpa, 2013-Ohio-3940.] {¶ 2} In his sole assignment of error, Mason contends the trial court erred in entering
summary judgment for the appellee, Townhouses of Catalpa, where genuine issues of material
fact exist.
{¶ 3} The record reflects that Mason owns a unit in the Townhouses of Catalpa, a
condominium association. According to his amended complaint, he purchased the unit in March
2011. (Doc. #22 at ¶4). In August 2011, he discovered the unit’s natural gas was not working.
(Id. at ¶6). A Vectren utility technician “determined that there was a blockage in the line between
the service line and the connection to the unit.” (Id. at ¶7). Mason paid to have the line repaired.
He then requested reimbursement from Townhouses of Catalpa, which claimed the repair was his
responsibility and refused to pay. (Id. at ¶8-11). In his amended complaint, Mason sought
damages from Townhouses of Catalpa for breach of contract, temporary loss of use of his unit,
and a violation of unspecified “Truth in Advertising Laws” with false advertising. (Id. at ¶12-24).
{¶ 4} After Mason failed to respond to requests for admissions, Townhouses of
Catalpa moved for summary judgment. (Doc. #30). It presented evidence that the gas-line
blockage was not in the common service line that supplied all units. Rather, the blockage was in
an underground line connecting Mason’s unit to the common line. Townhouses of Catalpa relied
on its governing declarations and by-laws to establish that Mason bore responsibility for repairing
blockage in the gas line to his unit. Finally, it cited its requests for admissions, which, among
other things, sought an admission that Mason had received the declarations and by-laws.
Townhouses of Catalpa argued that Mason’s failure to respond constituted an admission under
Civ.R. 36(A).
{¶ 5} Mason opposed the motion. (Doc. #34). He argued that discovery remained
“ongoing” and that he should be given time to cure his failure to respond to the requests for 3
admissions. He further argued that the requests for admissions, even if deemed admitted, did not
resolve the central issue, namely which party bore responsibility for repairing the blocked line.
Finally, Mason argued, without elaboration, that he interpreted the declarations and by-laws
differently than Townhouses of Catalpa and that this dispute constitutes a genuine issue of
material fact.
{¶ 6} The trial court entered summary judgment for Townhouses of Catalpa. (Doc.
#35). It found summary judgment proper “[f]or the reasons stated in Defendant’s Motion[.]” We
review this grant of summary judgment de novo, which means “we apply the standards used by
the trial court,” Brinkman v. Doughty, 140 Ohio App.3d 494, 497, 748 N.E.2d 116 (2d
Dist.2000). Summary judgment is appropriate when a trial court correctly finds “(1) that there is
no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a
matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion
is adverse to the party against whom the motion for summary judgment is made, who is entitled
to have the evidence construed most strongly in his favor.” Harless v. Willis Day Warehousing
Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).
{¶ 7} Mason’s assignment of error raises three issues. First, he claims a genuine issue
of material fact exists regarding the location of the gas-line blockage. Second, he contends the
requests for admissions, even if deemed admitted by his failure to respond, do not establish his
responsibility for the repair. Third, he argues that the trial court erred in failing to address the
truth-in-advertising claim in his complaint.
{¶ 8} Having reviewed the record, we believe the trial court erred in entering summary
judgment for Townhouses of Catalpa. In support of its motion, Townhouses of Catalpa submitted 4
an authenticated copy of the service-call tag from the Vectren technician who responded to
Mason’s complaint. The technician diagnosed the problem as “a block in houseline” that was
“somewhere underground.” (Doc. #30 at Exh. 2). For his part, Mason claimed the blockage was
“in the line between the service line and the connection to the unit.” (Doc. #22 at 7). The
service-call tag and Mason’s own allegations support Townhouses of Catalpa’s argument that the
blockage was in a gas line running from the common service line to Mason’s unit. Townhouses
of Catalpa persuasively argues in its brief that “[a] blockage between the service line (common
line) and connection to the unit can only be in one place–the houseline.”
{¶ 9} From a summary judgment perspective, however, the problem for Townhouses of
Catalpa is that nothing in the declarations and by-laws before us establishes Mason’s
responsibility for the repair. Townhouses of Catalpa argued below, and asserts on appeal, that its
governing documents “make an underground houseline the responsibility of the Family Unit
owner.” (Appellee’s brief at 4). Having examined the documents attached to Townhouses of
Catalpa’s motion for summary judgment, we find no support for this proposition.
{¶ 10} Townhouses of Catalpa relies on Declarations Article II, Section (A)(2)(a), which
reads:
2. Family Unit Owner. The responsibility of each Family Unit owner shall
be as follows:
(a) To maintain, repair and replace at his expense all portions of his Family
Unit, and all internal installations of such Family Unit such as appliances, heating,
plumbing, electrical and air conditioning fixtures or installations, and any portion
of any other utility service facilities located within the Family Unit boundaries. 5
(Doc. #30 at Exh. 1).
{¶ 11} On its face, this provision makes the repair of a gas line (i.e., “utility service”)
Mason’s responsibility only if it is located within the boundaries of his Family Unit. Nothing in
Article II, Section (A)(2)(a) establishes, however, that the blocked underground gas line at issue
was within the boundaries of Mason’s Family Unit. Resolution of that issue depends on the
definition of a Family Unit.
{¶ 12} Townhouses of Catalpa next relies on Declarations Article I, Section (A)(3),
which defines a Family Unit. It reads:
(A) Family Units. Each of the Family Units hereinbefore declared and
established as a freehold estate shall consist of all the space bounded by the
undecorated interior surfaces of the perimeter walls, floors and ceilings of each
such Family Unit, including the vestibule, if any, immediately adjacent to each
such Family Unit, projected, if necessary, by reason of structural divisions such as
interior walls, interior balconies, and other partitions, the dimensions, layouts and
descriptions of each such Family Unit being shown on the drawings attached
hereto as Exhibit A-1 through A-35, and including, without limitation:
***
(3) All immediately visible fixtures, including, without limitation thereto,
built in bathroom cabinets and kitchen cabinets, appliances, utility and service
lines, mechanical electrical, plumbing and all other equipment and systems
installed for the sole and exclusive use of the Family Unit lying within the bounds
of the Family Unit as defined herein, and all heating and air cooling systems and 6
equipment located within or outside the bounds of the Family Unit as defined
herein.
{¶ 13} This provision defines Mason’s Family Unit to include “utility and service
lines” that are “installed for the sole and exclusive use of [his] Family Unit” only if they are
“lying within the bounds of [his] Family Unit.” We see no evidence that the blocked underground
gas line was lying within the bounds of Mason’s Family Unit. We certainly cannot reach such a
conclusion as a matter of law. As set forth above, Declarations Article I, Section (A)(3) generally
defines a Family Unit as the space bounded by the walls, floors, and ceilings. It includes any
utility and service lines within that area. Here the blocked gas line was “somewhere
underground” and, therefore, apparently outside the area bounded by Mason’s walls, floors, and
ceilings. The Vectren technician’s service call tag is the only real evidence on the issue.1 It reads:
“Had service on but not getting any pressure to water heater. Somewhere underground is a block
in houseline. Will need plumber to find problem on houseline and get a houseline release from
the city/county.” (Doc. #30 at Exh. 2). This description does not preclude the possibility that the
blockage is outside the area bounded by Mason’s walls, floors, and ceilings, i.e., outside his
Family Unit. We see nothing in the governing documents presented by Townhouses of Catalpa
that would make Mason responsible for such a repair.2
1 Townhouses of Catalpa also submitted a summary-judgment affidavit from Constance Wills, the condominium-association president. In addition to authenticating the governing documents, she averred that “[t]he Association is not responsible for the repairs to Mr. Mason’s unit.” (Doc. #30 at Exh. 3). This averment establishes nothing as it is a mere legal conclusion. See, e.g., Brannon v. Rinzler, 77 Ohio App.3d 749, 756, 603 N.E.2d 1049 (2d Dist.1991) (recognizing that “statements contained in affidavits * * * cannot be legal conclusions”). 2 Parenthetically, we note that Declarations Article I, Section (A)(3) does make an owner responsible for “all heating and air cooling systems and equipment located within or outside the bounds of the Family Unit.” Notably absent from Article I, Section (A)(3) is 7
{¶ 14} Finally, with regard to Mason’s vague truth-in-advertising claim, we note that
neither Townhouses of Catalpa nor the trial court specifically addressed it. It appears, however,
that the truth-in-advertising claim, like Mason’s other two claims, is premised on him not being
responsible for the gas-line repair. In moving for summary judgment on the three counts in the
amended complaint, Townhouses of Catalpa argued only that Mason was responsible for the
repair as a matter of law. Because the trial court erred in adopting this argument, Townhouses of
Catalpa did not demonstrate its entitlement to summary judgment on the truth-in-advertising
claim or the other claims in Mason’s amended complaint.
{¶ 15} Mason’s assignment of error is sustained. The judgment of the Vandalia
Municipal Court is reversed, and the cause is remanded for further proceedings.
DONOVAN and CELEBREZZE, JJ., concur.
(Hon. Frank D. Celebrezze, Jr., Eighth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
David E. Stenson Scott A. Liberman Hon. Cynthia M. Heck
similar language making an owner responsible for utility and service lines located outside the bounds of the Family Unit.