Porter v. Hammond N. Condominium Assn.

2025 Ohio 2210

• Court: Ohio Court of Appeals
• Decided: June 25, 2025
• Docket: C-240571, C-240572
• Status: Published

Opinion

[Cite as Porter v. Hammond N. Condominium Assn., 2025-Ohio-2210.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

DIANA PORTER, : APPEAL Nos. C-240571 C-240572 KATHLEEN M. BENNETT, : TRIAL Nos. A-2401841 A-2402299 WILLIAM FRANKENSTEIN, : A-2402872

AUDREY WOODS, :

and : JUDGMENT ENTRY

JOAN BERRY, :

Plaintiffs-Appellants, :

and :

PATTI GRIFFITH, :

Plaintiff, :

vs. :

HAMMOND NORTH CONDOMINIUM : ASSOCIATION, : Defendant/Plaintiff/Third-Party Plaintiff-Appellee, :

VANESSA W. DENIER, :

JAN WELSH, :

BARB GLOECKNER, :

CAREN THEURING, :

JOAN PIRONE, :

JOHN MORAWETZ, : and : GEORGE ALEXANDER, : Defendants-Appellees, : and : HUNT BUILDERS CORPORATION, : Defendant, : vs. : LEONARD WEBB, : and : BRENDA I. WOODS, : Third-Party Defendants- Appellants, :

ADRIENNE D. MOORE-CORNWELL, :

Defendant/Third-Party Plaintiff- : Appellant, : and : HUNTINGTON NATIONAL BANK, et al., :

Defendants. :

This cause was heard upon the appeals, the record, the briefs, and arguments. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is reversed and the cause is remanded. Further, the court holds that there were reasonable grounds for these appeals, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.

To the clerk: Enter upon the journal of the court on 6/25/2025 per order of the court.

By:_______________________ Administrative Judge [Cite as Porter v. Hammond N. Condominium Assn., 2025-Ohio-2210.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

DIANA PORTER, : APPEAL NOS. C-240571 C-240572 KATHLEEN M. BENNETT, : TRIAL NOS. A-2401841 A-2402299 WILLIAM FRANKENSTEIN, : A-2402872

and : OPINION

HAMMOND NORTH CONDOMINIUM : ASSOCIATION, : Defendant/Plaintiff/Third-Party Plaintiff-Appellee, :

JOHN MORAWETZ, : and : GEORGE ALEXANDER, : Defendants-Appellees, : and : HUNT BUILDERS CORPORATION, : Defendant, : vs. : LEONARD WEBB, : and : BRENDA I. WOODS, : Third-Party Defendants- Appellants, :

Defendant/Third-Party Plaintiff- : Appellant, : and : HUNTINGTON NATIONAL BANK, et al., :

Civil Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 25, 2025

Lundrigan Law Group Co., L.P.A., W. Kelly Lundrigan and Nicole M. Lundrigan, for Appellants, Reminger Co., L.P.A., Ian D. Mitchell and Brandon Franklin, for Appellees Hammond North Condominium Association, Vanessa W. Denier, Jan Welsh, Barb Gloeckner, Caren Theuring, Joan Pirone, Joan Morawetz, and George Alexander. [Cite as Porter v. Hammond N. Condominium Assn., 2025-Ohio-2210.]

CROUSE, Judge.

{¶1} Appellants, a group of condominium unit owners, appeal the judgment

entered by the Hamilton County Court of Common Pleas on their claims seeking

injunctive relief and damages against their condominium association and its board of

directors, who they allege breached the condominium’s declaration and by-laws.

{¶2} Appellants contend the trial court deprived them of their right to a jury

trial under the Ohio Constitution by disposing of their damages claim and the factual

issues underlying it after a bench trial. For the reasons set forth below, we agree. The

Ohio Constitution preserved Appellants’ right to a jury trial on their claims seeking

damages for breach of the condominium’s governing documents. The trial court’s

disposition of that claim following a bench trial on the equitable issues deprived them

of that right. We therefore reverse the judgment of the trial court and remand the cause

for a jury trial or other proceedings consistent with Appellants’ constitutional rights.

I. BACKGROUND

A.

{¶3} This case centers on the Hammond North Condominium (“the HNC”),

a condominium property established under Ohio law and located in Cincinnati, Ohio.

Appellants all own or possess condominium units in the HNC. Many of the rights of

HNC unit owners are set forth in what we will call the “governing documents,” which

include the “Amended and Restated Declaration of Condominium and By-Laws for the

Hammond North Condominium” (“the Declaration”), and the “Amended and Restated

By-Laws of the Hammond North Condominium Association” (“the By-Laws”).

Pursuant to the Declaration and Ohio law, unit owners in the HNC automatically

become members of the Hammond North Condominium Association (“the

Association”). The Association is governed by and acts through its board of directors OHIO FIRST DISTRICT COURT OF APPEALS

(“the Board”).

{¶4} Appellees include the Association and the members of the Board (“the

Board Members”).

{¶5} Because this case turns on the propriety of the factfinding at the bench

trial, we do not draw on the trial record for the following narrative of events. Rather,

we rely on the parties’ operative pleadings, supplemented as necessary by their pre-

trial proposed findings of fact.

{¶6} In February 2023, a fire caused substantial damage to the HNC

including smoke damage. The extent and location of this damage is in dispute. While

the fire itself was localized, the Association contends that the HNC’s ventilation spread

soot contamination throughout the building, leading to risks of mold and bacterial

growth throughout the building that require remediation. Appellants contest this

characterization.

{¶7} In response to the fire, the Board adopted a remediation and mitigation

plan (“the Plan”). That Plan would require unit owners, along with their furnishings,

to move out of their homes for seven months or more, while contractors removed walls

and ceilings in common areas and units. According to Appellees, this process will

require asbestos abatement. This extensive work was required, in part, because the

Plan calls for the installation of a new sprinkler system.

{¶8} Appellees contend that the proper and comprehensive remediation of

the soot contamination and installation of the new sprinklers are essential to the

Association’s ability to secure future insurance. Appellants dispute the truth of these

claims. The parties agree that the City of Cincinnati approved a version of the repairs

required under the Plan that included the installation of the new sprinkler system. The

parties seem to disagree, however, as to whether the sprinkler system was necessary

8 OHIO FIRST DISTRICT COURT OF APPEALS

to secure that approval.

{¶9} And then there’s the money. The parties appear to agree that, prior to

trial, the Association had not settled on how it would fund the repairs required by the

Plan. Nor had the Board yet passed an annual budget for the Association that included

any costs associated with the Plan. Appellees hoped to fund the Plan with insurance

proceeds from the fire, but Appellants allege that the HNC’s insurance policy would be

insufficient to cover the cost. Appellants further argue that the insurance company will

not cover the new sprinklers, as they would constitute “improvements,” rather than

“repairs.” The balance of the price tag, Appellants allege, will have to be made up with

special assessments imposed upon the unit owners.

{¶10} To effectuate its Plan, the Board adopted a formal “Fire Prevention &

Restoration Unit Entry Policy” (“the Policy”), which was attached to the complaint and

the contents of which are not contested. The Policy requires unit owners to permit a

construction manager to “inspect and assess” their units, subject to a notice

requirement. It further requires the owners to vacate their units, along with all their

personal property, within 30 calendar days of receiving notice, so that construction

crews can “perform the mitigation, sprinkler installation, and reconstruction work.” If

a unit owner does not vacate their unit, “the Association will enter the unit” and charge

the unit owner for the cost of any damage, as well as the cost to remove and store any

personal property there found. The Policy forbids any unit owner to interfere with or

delay the Plan, and reserves for the Board authority to enforce the Policy in any

manner permitted under Ohio law and the governing documents.

{¶11} Appellants refused to abide by requests to remove themselves from their

9 OHIO FIRST DISTRICT COURT OF APPEALS

units, leading several of them to institute the proceedings now on appeal.1

B.

{¶12} Several of the appellant unit owners, with lead plaintiff, Diana Porter

(“the Porter Plaintiffs”), filed suit in the case numbered A-2402299 in the Hamilton

County Court of Common Pleas against Appellees (the Association and Board

Members) and the Hunt Builders Corporation (“Hunt Builders”), a contractor engaged

to work on repairs and renovations associated with the Plan. The Porter Plaintiffs

sought damages, a declaration of their rights under the governing documents, and an

injunction to prevent the Plan and Policy from moving forward. Appellees responded

with counterclaims against the Porter Plaintiffs. Appellees also impleaded several

other unit owners, bringing third-party claims for injunctive relief that would mandate

their compliance with the Policy.

{¶13} The Association filed a separate complaint for foreclosure against

another unit owner, appellant Adrienne D. Moore-Cornwell, in the case numbered A-

2402872. Moore-Cornwell answered, bringing counterclaims against the Association

and third-party claims against the Board Members.

{¶14} The trial court consolidated these proceedings, along with a third

proceeding numbered A-2401841,2 under the case numbered A-2402299, which had

been initiated by the Porter Plaintiffs.

1 Below, Appellants also alleged that Vanessa Denier, a member of the Board and an appellee in this

court, was properly removed from the Board by a referendum vote of the unit owners, but that the Board had unlawfully refused to acquiesce in her removal. Because Appellants do not press this issue on appeal, we have omitted discussion of these allegations from this background section, along with the procedural history related solely to these claims. 2 This third case was brought by another unit owner, Patti Griffith, who filed a pro se complaint

against “the Hammond North Condominium Board” seeking an injunction based on allegations largely similar to the Porter Plaintiffs’. While Griffith’s case was consolidated with the others below, Griffith was not included on either of Appellants’ notices of appeal and did not file a notice of her own. She is therefore not an appellant in this court.

10 OHIO FIRST DISTRICT COURT OF APPEALS

{¶15} The Porter Plaintiffs’ operative complaint lists seven numbered causes

of action. The first of these causes of action, brought as a derivative claim on behalf of

the Association, alleged (1) breach of fiduciary duty by the Board and its members. The

next three causes of action, which named all Appellees, alleged respectively (2) “breach

of contract and bad faith,” (3) intentional infliction of emotional distress, and (4)

intentional interference with contracts. The Porter Plaintiffs’ remaining causes of

action included claims against Hunt Builders, none of which are relevant to this

appeal, and a civil-conspiracy claim against all defendants.

{¶16} Under their second cause of action, the Porter Plaintiffs alleged that

they “have and will continue to suffer damage as a proximate result” of the Association

and Board Members’ breach and bad faith, and therefore requested “remedies for

declaratory relief, specific performance, and temporary, preliminary and permanent

injunctive relief,” in addition to damages.

{¶17} Moore-Cornwell’s amended answer and counterclaim, in which Moore-

Cornwell also included a general jury demand, lists eight counterclaims, some of which

overlap with the Porter Plaintiffs’ causes of action and some of which do not. As

relevant here, Moore-Cornwell’s first three counterclaims are functionally identical to

the Porter Plaintiffs’ first three causes of action. Because Moore-Cornwell’s second

cause of action/counterclaim is the only relevant claim in this appeal, and because it

is substantially identical to the Porter Plaintiffs’ second claim, we will henceforth use

the Porter Plaintiffs’ second cause of action to refer to both claims collectively.

{¶18} The Association and Board Members, as described above, responded

with counterclaims, third-party claims, and claims in a fresh complaint. As relevant

here, these claims brought by the Association and Board Members can be collapsed

into their first counterclaim against the Porter Plaintiffs, which sought an injunction

11 OHIO FIRST DISTRICT COURT OF APPEALS

to enforce the Policy and to require various owners to remove themselves and their

personal property so that the Plan could move forward.

{¶19} The Porter Plaintiffs and Association each sought a temporary

restraining order (“TRO”) against the other, and both requests were denied. The

Porter Plaintiffs also sought a preliminary injunction. After their TRO request was

denied, however, the Porter Plaintiffs requested that the hearing on their preliminary

injunction be consolidated with a trial on the merits. The trial court granted this

consolidation request and scheduled a bench trial.

{¶20} The Porter Plaintiffs protested the decision to try the case to the bench,

arguing that they had a constitutional right to a jury. After briefing on the issue, the

trial court declined to impanel a jury, ruling that the only issues that would “proceed

at the combined injunction trial” were “equitable issues” and “issues of law that

require a declaration of the meaning of the governing documents.” Such issues, the

trial court reasoned, carried no right to a jury trial. The trial court further explained

that “[a]ll claims for monetary damages will be set for trial at a later date to preserve

each parties’ right to a jury trial.”

{¶21} When the bench trial began, Appellants reiterated their objections to

proceeding without a jury, which the trial court overruled. The parties then tried their

cases to the court over six days.

{¶22} Following the trial and submission of written closing arguments, the

court issued an order captioned “Findings of Fact, Conclusions of Law, and Final

Order.” In it, the trial court entered judgment “in Favor of the Defendants’

Counterclaim, Claim I, and against the Plaintiffs on their Second Cause of Action.” The

court further found that there was “no just reason for delay” and stated that its order

constituted a final judgment under Civ.R. 54(B).

12 OHIO FIRST DISTRICT COURT OF APPEALS

{¶23} Appellants then filed two timely notices of appeal. The notice of appeal

filed in the case numbered A-2402299 produced the appeal numbered C-240571,

while the notice filed in the case numbered A-2402872 produced the appeal numbered

C-240572. This court consolidated the two appeals.

II. APPELLATE JURISDICTION

{¶24} Before we address the merits, we begin by addressing our jurisdiction

to hear this appeal. Although neither party has raised the issue, we are “obliged to

consider our jurisdiction” and to police those jurisdictional boundaries. Preterm-

Cleveland v. Yost, 2022-Ohio-4540, ¶ 9 (1st Dist.). The question of jurisdiction in this

case arises because the trial court’s judgment did not expressly resolve all pending

claims in this litigation.

{¶25} Ohio’s courts of appeals have jurisdiction “to review, affirm, modify, set

aside, or reverse judgments or final orders” of inferior courts. R.C. 2501.02(C); see

also Ohio Const., art. IV, § 3(B)(2). “Final order” is defined in R.C. 2505.02(B), which

sets forth eight categories of such orders.

{¶26} In their jurisdictional statement, Appellants proffer two bases for our

jurisdiction: R.C. 2505.02(B)(1) and (B)(4). We are doubtful that the entry below was

a “final order” granting or denying a “provisional remedy” under R.C. 2505.02(B)(4).

However, we do agree that we have jurisdiction pursuant to R.C. 2505.02 (B)(1), which

defines “final order” to include “[a]n order that affects a substantial right in an action

that in effect determines the action and prevents a judgment.”

{¶27} We begin by noting that the word “action” in (B)(1) refers not to an

entire lawsuit and all claims therein, but to a particular claim for relief or “cause of

action.” See, e.g., Noble v. Colwell, 44 Ohio St.3d 92, 95 (1989) (“The words ‘claim for

relief,’ as used in Civ. R. 54(B), are synonymous with ‘cause of action.’” (Cleaned up.)).

13 OHIO FIRST DISTRICT COURT OF APPEALS

This view of the text of R.C. 2505.02(B)(1) is based not only on the meaning of the

term “action” at the time that provision’s language was originally enacted,3 but also on

a half century of precedents that have permitted appeals from judgments resolving

fewer than all outstanding causes of action under the Ohio Rules of Civil Procedure.

See, e.g., Alexander v. Buckeye Pipe Line Co., 49 Ohio St.2d 158, 159-160 (1977)

(holding that appeal of judgment on discrete causes of action properly certified under

Civ.R. 54(B) did not violate R.C. 2505.02(B)).

{¶28} A trial court’s order “determine[s] the action and prevent[s] a judgment

for the party appealing” only if it “dispose[s] of the whole merits of the cause or some

separate and distinct branch thereof and leave[s] nothing for the determination of the

court.” (Cleaned up.) State ex rel. Sands v. Culotta, 2021-Ohio-1137, ¶ 8. Thus, a valid,

final, and binding judgment as to even a single claim for relief is a final order under

R.C. 2505.02(B)(1), because it “determines” that particular “action” and “prevents a

judgment” for the losing party with respect to it. See Smith v. Platinum Property Mgt.,

2024-Ohio-5687, ¶ 5 (1st Dist.) (“Trial courts ‘dispose of ’ claims through their

judgment entries.”).

{¶29} But not every order purporting to adjudicate claims is a final judgment.

Under Civ.R. 54(B), a trial court’s order adjudicating some (but not all) claims remains

3 A brief review of how the word “action” historically has been used supports the proposition that

“action” means “cause of action” and not the entire lawsuit. Ohio’s 1853 Code of Civil Procedure, like R.C. 2505.02(B)(1) today, defined “final order” to include “[a]n order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment.” See Code of Civil Procedure of the State of Ohio, Section 512 (George E. Seney, Ed. 1860), available at https://heinonline.org/HOL/P?h=hein.sstatutes/coivpsoh0001&i=1. Other provisions in that same code demonstrate that, at that time, an “action” referred not to an entire petition or lawsuit and all claims therein, but to what we today would call a particular “claim for relief.” Hence, the analogue to the modern rule governing “joinder of claims and remedies,” was then entitled “Joinder of Actions,” and employed the words “cause,” “action,” and “cause of action” interchangeably. Compare id. at Title VI, with Civ.R. 18. This further tracks contemporary legal parlance, which, as the code demonstrates, often referred to “[a]n action for trespass,” “[a]n action for libel,” or “[a]n action upon a contract.” See Code of Civil Procedure at Sections 13-18.

14 OHIO FIRST DISTRICT COURT OF APPEALS

presumptively “subject to revision at any time before the entry of judgment

adjudicating all the claims and the rights and liabilities of all the parties.” Civ.R. 54(B);

see also Jarrett v. Dayton Osteopathic Hosp., Inc., 20 Ohio St.3d 77, 78 (1985)

(because order “did not adjudicate the liabilities of all the parties” and was not certified

under Civ.R. 54(B), “it was subject to modification”).

{¶30} It is thus Civ.R. 54(B)’s presumption of mutability, and not

R.C. 2505.02’s final-order rule, that prevents piecemeal appeals on a claim-by-claim

basis. Because the trial court remains free to change its mind about such an

interlocutory order, it does not “prevent[] a judgment” in the losing party’s favor under

R.C. 2505.02(B)(1). See Fuller v. Quality Casing Co., Inc., 2025Ohio361, ¶ 8 (1st

Dist.); Noble, 44 Ohio St.3d at 97, fn. 6.

{¶31} However, a trial court can “rebut this presumption of mutability” and

enter final judgment as to particular claims, if it certifies under Civ.R. 54(B) that it

finds “no just reason for delay.” Fuller at ¶ 9; see Ames v. Rootstown Twp. Bd. of

Trustees, 2022-Ohio-4605, ¶ 15, fn. 1 (Civ.R. 54(B) “certification made the trial court’s

order final, and therefore appealable, with respect to the claims it did dispose of”).

Such a Civ.R. 54(B) certification severs the resolved claims from the remaining,

unresolved ones, and bundles the former together into a final judgment. Thus, the

Ohio Rules of Civil Procedure, which permit the liberal joinder of claims and parties

on the front end, also provide trial courts with a limited tool to sever them on the back

end. See Alexander, 49 Ohio St.2d at 159-160 (“[q]uestions involving the joinder and

separation of claims and the timing of appeals are matters of practice and procedure

within the rule-making authority of” the Ohio Supreme Court).

{¶32} When a court properly certifies an order under Civ.R. 54(B), it “enter[s]

final judgment” on the resolved and severed claims. That judgment, like all valid final

15 OHIO FIRST DISTRICT COURT OF APPEALS

judgments, is a final, appealable order under R.C. 2505.02(B)(1) and 2501.02(C). See

Ames at ¶ 15, fn. 1; Whitaker-Merrell v. Geupel Co., 29 Ohio St.2d 184, 187 (1972)

(judgment certified under Civ.R. 54(B) is reviewable both “upon the determination of

no reason for delay, as well as for error in the granting of judgment”).

{¶33} But certification under Civ.R. 54(B) must be proper. The Ohio Rules of

Civil Procedure cannot “enlarge the statutory right of appeal.” See State v. Hughes, 41

Ohio St.2d 208 (1975), syllabus. Thus, for an order to be properly certified under

Civ.R. 54(B), it must be one that would have been an appealable “judgment[] or final

order[]” pursuant to R.C. 2501.02(C) and Ohio Const., art. IV, § 3(B)(2), in the

absence of the presumption of revisability created by Civ.R. 54(B). See also Gen. Acc.

Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 21 (1989) (“Civ. R. 54(B) . . . cannot

affect the finality of an order.”). Civ.R. 54(B)’s requirement that the trial court resolve

“one or more . . . claims” has therefore been construed to require the complete

resolution of one or more discrete causes of action. See, e.g., Noble, 44 Ohio St.3d at

95. Hence, a trial court cannot certify as final under Civ.R. 54(B) an order that

adjudicates liability, but not damages. See, e.g., Fireman’s Fund Ins. Cos. v. BPS Co.,

4 Ohio App.3d 3 (10th Dist. 1982); State ex rel. White v. Cuyahoga Metro. Hous.

Auth., 1997-Ohio-366, ¶ 12.

{¶34} In this case, the trial court’s order plainly resolved both Appellants’

second cause of action and Appellees’ counterclaim in their entirety. The order thus

resolved one or more discrete claims in their entirety, such that it could be certified

under Civ.R. 54(B) as a final judgment on those claims.

{¶35} Further, the trial court did not abuse its discretion in using Civ.R. 54(B)

to sever the resolved claims and certify its order. See, e.g., Alexander, 49 Ohio St.2d at

159 (reviewing Civ.R. 54(B) certification for an abuse of discretion); Fuller,

16 OHIO FIRST DISTRICT COURT OF APPEALS

2025-Ohio-361, at ¶ 17 (1st Dist.). While the claims resolved by the judgment on appeal

were not hermetically isolated from the claims outstanding below, the areas of overlap

do not render the claims so “inextricably intertwined” as to prohibit the trial court

from finding that there was “no just reason for delay.” While our review of the trial

court’s determination as to the validity of the Association’s Plan and subsequent

actions may affect Appellants’ outstanding claims for breach of fiduciary duty,

intentional infliction of emotional distress, and civil conspiracy, we would not be

compelled to be the first to weigh in on unresolved issues pending below. Compare

Fuller at ¶ 14, 23-24, 28.

{¶36} Nor can we say that the overlap between the resolved and unresolved

claims was otherwise so great as to render Civ.R. 54(B) certification an abuse of

discretion. The claims resolved in the trial court’s order were relatively self-contained,

and further delay risked incurring further expenses and leaving the HNC in continued

need of repair. With no preliminary injunction in place, the trial court wished to put

its permanent injunction into effect, so it rendered its order final and appealable under

Civ.R. 54(B).

{¶37} The trial court’s order disposed of complete claims for relief, and the

court did not abuse its discretion in certifying that order under Civ.R. 54(B). The order

before us is therefore a “final judgment” under Civ.R. 54 and a “final order” under

2505.02(B)(1), and we have jurisdiction to hear this appeal under R.C. 2501.02(C).

III. RIGHT TO JURY TRIAL

{¶38} Appellants’ first assignment of error contends that the trial court, by

proceeding with the limited bench trial below, denied Appellants their right to a jury

trial. Specifically, Appellants contend that the right to a jury trial, as enshrined in “the

Ohio and Federal Constitutions and Civil Rules,” required the trial court to try their

17 OHIO FIRST DISTRICT COURT OF APPEALS

“breach of contract” claim for damages to a jury before trying the related requests for

a permanent injunction to the bench. Appellants further contend that a trial court has

no discretion to bifurcate a trial in a manner that infringes that right. To resolve

Appellants’ first assignment of error, therefore, we must determine (A) whether

Appellants would have a right to a jury trial on any of the issues underlying the claims

adjudicated by the trial court, and (B) if so, whether the trial court’s entry of judgment

following the bench trial abridged that jury-trial right.

{¶39} Our first question—whether Appellants were entitled to a jury trial on

any of their claims—is a question of law, which we review de novo. See Demery v.

Baluk, 2012-Ohio-4486, ¶ 21 (6th Dist.).

1.

{¶40} As a preliminary matter, we note that Appellants’ first issue presented

for review asserts a right to a jury under the United States Constitution. But the

Seventh Amendment, which enshrines the federal right to a jury trial in civil cases,

does not apply to suits brought in state courts. See City of Monterey v. Del Monte

Dunes, 526 U.S. 687, 719 (1999) (describing it as “settled law that the Seventh

Amendment does not apply” to “suits brought in state court”); Arrington v.

DaimlerChrysler Corp., 2006-Ohio-3257, ¶ 22, fn. 3 (“The federal constitutional right

to trial by jury is inapplicable to state-law claims in a state adjudicatory regime.”).

{¶41} Appellants also invoke the protections of the Ohio Constitution and the

Ohio Rules of Civil Procedure, both of which do apply in Ohio courts. Similar to its

federal counterpart, the Ohio Constitution guarantees that “[t]he right of trial by jury

shall be inviolate, except that, in civil cases, laws may be passed to authorize the

rendering of a verdict by the concurrence of not less than three-fourths of the jury.”

18 OHIO FIRST DISTRICT COURT OF APPEALS

Ohio Const., art. I, § 5. The Ohio Rules of Civil Procedure likewise guarantee that “[t]he

right to trial by jury shall be preserved to the parties inviolate” and prescribe how the

right may be invoked or waived. Civ.R. 38(A)-(D). The rules provide that once a party

makes a proper jury demand, the “trial of all issues so demanded shall be by jury,

unless” the parties stipulate otherwise, or the court “finds that a right of trial by jury

of some or all of those issues does not exist.” Civ.R. 39(A).

{¶42} Because Appellants properly made a general jury demand, the trial

court could only try the relevant issues to the bench if it found “that a right of trial by

jury does not exist” on any of the “issues” to be tried. In civil cases, a right of trial by

jury exists and must be preserved “only when, under the principles of the common

law, the type of claim existed prior to the adoption of the Ohio Constitution.” McClain

v. State, 2022-Ohio-4722, ¶ 7, citing Belding v. State ex rel. Heifner, 121 Ohio St. 393,

396 (1929).

{¶43} As we explain in detail below, what Appellants have styled as a breach-

of-contract claim is, in truth, an action for breach of the condominium’s governing

documents under R.C. 5311.19(A). But the fact that a statute today authorizes the

action is not determinative. The Ohio Supreme Court, in both Belding and McClain,

has focused the inquiry on whether the type of claim codified is “sufficiently similar to

any cause of action recognized at common law.” See McClain at ¶ 16; see also Belding

at 396-397.

{¶44} McClain provides a roadmap for how to identify whether a statutory

cause of action has a sufficiently similar common-law analogue to warrant a jury trial.

The plaintiff in McClain had brought an action in the court of common pleas seeking

a declaration of wrongful imprisonment under Ohio’s wrongful-imprisonment statute,

so that he could then seek damages in the court of claims. The plaintiff analogized his

19 OHIO FIRST DISTRICT COURT OF APPEALS

action under the statute to a common-law action for false imprisonment. McClain at

¶ 10. Despite some similarities, the Ohio Supreme Court concluded that the new

statutory claim was not the same type of claim as a common-law claim for false

imprisonment. Id. at ¶ 17 (holding that Ohio’s constitution “does not preserve a right

to a jury trial in a wrongful-imprisonment action against the state, because the action

did not exist at common law”). The McClain Court’s considerations in reaching this

conclusion can be bundled into three categories.

{¶45} First, the Court looked to the elements of and parties to the two actions.

The wrongful-imprisonment statute created a right of action for “innocent persons

who have been wrongfully convicted and incarcerated for a felony” to seek

compensation from the State. (Cleaned up.) McClain, 2022-Ohio-4722, at ¶ 13, 14. By

contrast, a plaintiff could bring a common-law false-imprisonment claim only against

individual officials (or private persons), who had detained them without legal privilege

to do so—regardless of the detainee’s underlying innocence. Id. at ¶ 12-13.

{¶46} Second, the Court noted that the procedures required and method of

providing relief under the wrongful-imprisonment statute were novel and had “‘no

parallel in the ancient dual system of law and equity.’” Id. at ¶ 15, quoting Walden v.

State, 47 Ohio St.3d 47, 53 (1989). The Court noted that, in a prior case, it had held

that a statutory wrongful-imprisonment action was a “special proceeding,” rather than

an ordinary “action.” Id. at ¶ 16, citing State ex rel. O’Malley v. Russo,

2019-Ohio-1698, ¶ 21.

{¶47} Third, the Court noted that the statutory wrongful-imprisonment claim

“supplement[ed],” rather than displaced, “the false-imprisonment tort,” thus enabling

“recovery in cases when recovery was not available” at common law. Id. at ¶ 16. The

statute therefore “created a new right without a common-law analogue.” Id.

20 OHIO FIRST DISTRICT COURT OF APPEALS

{¶48} Similar considerations motivated the Court, in Arrington v.

DaimlerChrysler Corp., to hold that the Ohio Constitution did not require juries in

workers’ compensation appeals, because those proceedings “clearly differ[ed] from a

common-law tort in significant ways.” Arrington, 2006-Ohio-3257, at ¶ 25. The

workers’ compensation regime had been created to fill the “void of common-law

remedies for workers injured on the job,” resulting from the limited duty imposed

upon employers in negligence actions and the availability of common-law defenses.

Id. at ¶ 24, 16. To fill this void, the legislature had replaced ordinary negligence claims

against employers with a novel procedure modeled on principles of insurance, rather

than of tort. Id. at ¶ 24. These novel claims, which did not require the findings of

culpability so central to tort actions, were not familiar to the common law, and

therefore carried no constitutional right to a jury. Id. at ¶ 27.

{¶49} Beyond such analogic inquiries, Ohio courts have also held that a

plaintiff is not entitled to a jury on claims seeking only equitable relief. See State ex

rel. Dann v. Meadowlake Corp., 2007-Ohio-6798, ¶ 44 (5th Dist.), citing State ex rel.

Miller v. Anthony, 1995-Ohio-39, ¶ 14 (“In an action seeking an injunction, there is no

right to a jury trial because such an action is equitable in nature.”). Because “some

causes of action sound in both law and equity,” factually identical claims may

sometimes be equitable or legal depending on the nature of the remedy sought. See

SEC v. Jarkesy, 603 U.S. 109, 123 (2024) (discussing issue in Seventh Amendment

context). This is why factual issues in a complaint seeking only specific performance

of a contract are “triable to the court, and not, of right, to a jury,” while claims for

breach-of-contract damages—which sounded in assumpsit, debt, or covenant at

common law—are triable to a jury. See Hull v. Bell, 54 Ohio St. 228, 239 (1896).

21 OHIO FIRST DISTRICT COURT OF APPEALS

2.

{¶50} In this case, the trial court entered judgment in favor of Appellees on

their first counterclaim, which sought an injunction, and against Appellants on their

second cause of action, which sought both damages and injunctive relief. Because

injunctive relief is fundamentally equitable, neither party had a right to a jury trial on

Appellees’ counterclaim or on the equitable issues going only to Appellants’ request

for an injunction. We therefore turn to Appellants’ claim for damages under their

second cause of action.

{¶51} Appellants styled their second cause of action as one for “breach of

contract and bad faith.” Strictly speaking, however, an action for the breach of a

condominium’s governing documents is not a common-law action in contract. Rather,

it is a statutory action under R.C. 5311.19(A), which provides as follows:

All unit owners, their tenants, all persons lawfully in possession and

control of any part of a condominium property, and the unit owners

association of a condominium property shall comply with all covenants,

conditions, and restrictions set forth in a deed to which they are subject

or in the declaration, the bylaws, or the rules of the unit owners

association, as lawfully amended. Violations of those covenants,

conditions, or restrictions shall be grounds for the unit owners

association or any unit owner to commence a civil action for damages,

injunctive relief, or both, and an award of court costs and reasonable

attorney’s fees in both types of action.

The statute does not specifically provide either for trial by jury or trial to the bench.

Thus, we determine the parties’ entitlement to a jury by asking whether the parties’

22 OHIO FIRST DISTRICT COURT OF APPEALS

statutory claims are “sufficiently similar to any cause of action recognized at common

law.” McClain, 2022-Ohio-4722, at ¶ 16.

{¶52} While the breach-of-contract analogy suggested by Appellants provides

us with a starting point, it quickly raises questions. In other contexts, this and other

courts have analogized a condominium’s governing documents—which the statute

includes under the umbrella of “covenants, conditions, and restrictions” (“CCRs”)—to

a contract between unit owners. See, e.g., Behm v. Victory Lane Unit Owners’ Assn.,

133 Ohio App.3d 484, 487 (1st Dist. 1999) (referring to rights and duties under CCRs

as imposed “by contract”); State ex rel. Curd v. Blackhaus, 56 Ohio App.2d 79, 81 (8th

Dist. 1977) (CCRs “represent agreements among the unit owners themselves and

between the unit owners and the association,” and are therefore “essentially

contractual” in nature). However, unlike regular contracts, the rights and duties

incurred under CCRs run with the property, regardless of who owns it. See R.C. 5311.01

(defining “‘Unit owner’” to mean one who “owns a condominium ownership interest

in a unit”); R.C. 5311.19(A) (requiring “[a]ll unit owners” to “comply with all

covenants, conditions, and restrictions”); R.C. 5311.19(B)(1) (permitting evictions for

CCR violations). In this sense, they differ from the typical contract, which binds only

parties and their privies.

{¶53} The common law did recognize a particular type of contract whose

rights and duties ran with the land: the real covenant. See Jubilee Ltd. Partnership v.

Hosp. Properties, Inc., 2010-Ohio-5550, ¶ 30 (10th Dist.) (“Because, however, a real

covenant runs with the land and ‘passes to the assignee of the land,’ no assignment of

the promise, or consent to such assignment, is required: the promise passes

automatically to the one who takes the land.”); see also 2 Bouvier, Institutes of

23 OHIO FIRST DISTRICT COURT OF APPEALS

American Law, § 2045, at 403-404 (1845)4 (noting that certain affirmative covenants

in deeds were “in the nature of real covenants running with the land conveyed; they

descend to heirs and vest in assignees or the purchaser”).

{¶54} Because real covenants would encumber all future owners’ use of the

property, common-law courts imposed strict requirements to determine when a

covenant would run with the land and thus be enforceable against subsequent

purchasers. See 7 Thompson on Real Property, Thomas Editions, § 61.03(b) (3d Ed.

2021) (hereinafter “Thompson”). In general, a promise in a deed was held to be a “real

covenant” running with the land if (1) the parties to the initial agreement intended for

the covenant to run with the land, (2) the agreement “touch[es] and concern[s]” the

land, and (3) there is “privity of estate between the party claiming the benefit of the

covenant and the party called upon to fulfill it.” 35 Ohio Jur.3d, Deeds, § 96 (2024);

accord BM-Clarence Cardwell, Inc. v. Cocca Dev., Ltd., 2016-Ohio-7751, ¶ 37 (5th

Dist.). See also Huston v. Cincinnati & Z. R. Co., 21 Ohio St. 235, 247 (1871) (holding

that agreement to build and maintain structures on property ran with the land, based

on the “nature of the agreement, its qualification of the estate granted, its connection

with the proceeding by which the title was acquired, and the fact that the agreement

was to be of perpetual obligation”). The “privity” element required a showing of “both

horizontal and vertical privity.” 35 Ohio Jur.3d, Deeds, § 99 (2024); accord BM-

Clarence Cardwell at ¶ 41.

{¶55} Real covenants were originally creations of the common law, not equity,

and plaintiffs at common law could therefore bring actions in covenant for damages

resulting from their breach. See 7 Thompson, § 61.05(a) (“money damages are the

4 Volume 2 available at https://archive.org/details/cu31924018830541/page/402.

24 OHIO FIRST DISTRICT COURT OF APPEALS

primary redress for violation of a real covenant”); 3 Bouvier, § 3452, at 6235

(describing several covenants running with the land enforceable in covenant).

Numerous authorities note the availability of both actions at law and suits in equity to

enforce real covenants. See Hysinger v. Mullinax, 204 Tenn. 181, 187-188 (Tenn.

1958) (collecting authorities indicating the availability of a remedy at law for a breach

of covenant running with the land); see also 3 Pomeroy, Equity Jurisprudence, § 1295,

fn. 1, at 314-315 (A.L. Bancroft & Co. 1883)6 (assuming that real covenants were

ordinarily enforceable at law, before describing how, even when defective, they could

nevertheless be enforced in equity).

{¶56} In 1871, for example, the Ohio Supreme Court clearly permitted a

plaintiff to sue in damages for the breach of a promise running with the land. Huston,

21 Ohio St. 235. In Huston, both plaintiff and defendant had purchased their abutting

properties from prior owners. Id. at 239-240. Plaintiff alleged that defendant’s

predecessor in interest, upon obtaining a share of the property from plaintiff’s

predecessor in interest, had contracted with plaintiff’s predecessor to build and

maintain a fence along the property line. Id. at 236-237. No fence was ever built, and

plaintiff sued defendant. Id. at 240. The Ohio Supreme Court held (1) that the

agreement had been enforceable against the original parties, id. at 246, (2) that the

agreement “was in the nature of a charge upon that land, subjecting it to a servitude

in favor of the estate from which it was to be taken,” so that it would “run with the

land,” id. at 246-247, and (3) that the defendant was liable to the plaintiff in damages

for harms that had accrued since the defendant had taken possession, id. at 247-248.

Though Huston did not use the word “covenant,” it is nevertheless evidence that

5 Volume 3 available at https://archive.org/details/cu31924018830558/page/623. 6 Available at https://archive.org/details/cu31924018830525/page/314.

25 OHIO FIRST DISTRICT COURT OF APPEALS

common-law courts—indeed, Ohio courts—enforced agreements running with the

land with damages awards. See 35 Ohio Jur.3d, Deeds, § 152 (2024); Patterson v.

Pease, 5 Ohio 190, 191 (1831) (holding that plaintiff could pursue claim for breach of a

covenant of warranty in his deed “by action of covenant, sounding in damages”).

3.

{¶57} While Ohio’s condominium law imposes numerous regulatory

requirements on how condominium associations may be created and governed, it does

so essentially by building upon the law of real covenants.

{¶58} Condominium units are “real property for all purposes and [are] real

estate within the meaning of all provisions of the Revised Code,” so that a “unit owner

is entitled to the exclusive ownership and possession of the unit.” R.C. 5311.03(A), (B).

A “condominium ownership interest” carries not only a fee simple (or 99-year

renewable leasehold) in the condominium unit itself, but also an “undivided interest

in the common elements appurtenant to” that unit. Id.; accord R.C. 5311.01(N)

(defining “condominium ownership interest”).

{¶59} The statutory procedure for creating condominium units tracks the

essential elements for creating real covenants at common law. Like a real covenant, a

condominium declaration restricts the rights of all future owners of a condominium

unit from the moment the first buyer receives the burdened property from the original

owner of the larger, undivided condominium property, see R.C. 5311.02, and only

terminates with the formal consent of the current owners of the benefited properties,

see R.C. 5311.17. The principle that a condominium declaration is enforceable upon

initial division of the condominium property even tracks the common-law

requirement that, for a real covenant to run with the land, the covenanting owners of

the burdened and benefitted estates had to be in “horizontal privity.” 35 Ohio Jur.3d,

26 OHIO FIRST DISTRICT COURT OF APPEALS

Deeds, § 93 (2024). Put another way, the Condominium Act, just like the law of real

covenants, requires that “the covenant was created as part of a conveyance of real

property between creating parties.” (Cleaned up.) See BM-Clarenc Cardwell,

2016-Ohio-7751, at ¶ 41 (5th Dist.).

{¶60} Ohio has created a scheme to impose upon each condominium unit

CCRs enshrined in statutes, deeds, declarations, and by-laws. These obligations run

with the unit they burden and inure to the benefit of all others. Although these

statutory covenants are heavily regulated, they conform to the essential elements and

principles of the common law of real covenants. A condominium declaration is thus

“more than a mere contract”; “it assumes some of the attributes of a covenant running

with the land, circumscribing the extent and limits of the enjoyment and use of real

property.” Pepe v. Whispering Sands Condominium Assn., 351 So.2d 755, 757

(Fla.App. 1977). An action to enforce CCRs with damages under R.C. 5311.19 is

therefore in the nature of a common-law action for breach of covenant.

4.

{¶61} The fact that Appellants’ suit in this case is against the Association,

rather than individual owners, does not remove its fundamentally common-law

character.

{¶62} A unit owners association is a representative body that acts on behalf of

the owners. Under Ohio law, a unit owners association is composed entirely of other

unit owners, who hold their properties subject to the limitations imposed by the

declarations and by-laws. See R.C. 5311.01(DD) and 5311.05(B)(7). The unit owners

association acts through its board of directors, who are elected by unit owners and

their spouses, and who are themselves unit owners, spouses of unit owners, or

representatives of corporate unit owners. R.C. 5311.08(A)(1). Thus, the Association,

27 OHIO FIRST DISTRICT COURT OF APPEALS

acting through its Board, represents the unit owners bound up in the web of reciprocal

covenants that bind the properties.

{¶63} To simplify the manner in which unit owners can vindicate the rights

and duties in their CCRs, Ohio law empowers unit owners associations to “sue or be

sued as a separate legal entity” in “any action relating to the common elements or to

any right, duty, or obligation possessed or imposed upon the unit owners association

by statute or otherwise.” R.C. 5311.20; see also R.C. 5311.19 (permitting “any unit

owner” to bring suit for violations of the “covenants, conditions, or restrictions” by

other “unit owners,” as well as “the unit owners association”). The Condominium Act

makes the representative relationship clear—empowering the Board to “defend . . . any

civil . . . action . . . that involves two or more unit owners, impacts zoning, or otherwise

relates to matters affecting the condominium property.” R.C. 5311.081(B)(2).

{¶64} Similar owners associations were not unknown to the common law.

Developers employed the common-law tool of real covenants to create private

homeowners associations long before any state enacted statutory permission to do so.

The first such association appeared in Boston in 1844, when the residents of Louisburg

Square filed a recorded agreement establishing a “Committee of the Proprietors of

Louisburg Square,” making every owner a member, and binding them and their

assigns to keep up the jointly-owned private park. See McKenzie, Privatopia:

Homeowner Associations and the Rise of Residential Private Government, 34 (1994).

{¶65} While their use in the 19th century was sporadic, automatic-

membership homeowners associations began to take off in the first few decades of the

20th century, while still creatures of common law and private contract. See Hyatt,

Common Interest Communities: Evolution And Reinvention, 31 John Marshall L.Rev.

28 OHIO FIRST DISTRICT COURT OF APPEALS

303, 318-319 (1998);7 Monchow, The Use of Deed Restrictions in Subdivision

Development, 69-71 (1928)8 (discussing types of owners’ associations created by

private-law covenant); McKenzie at 39-40 (describing the early associations

established by deeds in the subdivisions of J.C. Nichols). It was amidst this boom that

courts began to weigh in expressly, blessing the use of covenants running with the land

to govern such common-interest developments. McKenzie at 51-55. And, in 1938, the

New York Court of Appeals’ decision in Neponsit Property Owners’ Assn. v. Emigrant

Indus. Savs. Bank, 278 N.Y. 248 (1938), recognized the ability of a homeowners

association to enforce a covenant to pay for the maintenance of common interests

without statutory authorization.

{¶66} These common-law homeowners associations were the lineal forbears

of the condominium association. Indeed, legislation was arguably necessary to create

condominium property, not because the common law lacked the tools to permit

governance by private owners associations, but because the common law resisted the

division of a single fee into multiple fees on a floor-by-floor or unit-by-unit basis. See

Bennett, Condominium Homeownership in the United States: A Selected

Bibliography of Legal Sources, 103 Law Libr.J. 249, 263-264 (2011),9 discussing

Berger, Condominium: Shelter on a Statutory Foundation, 63 Columbia L.Rev. 63

(1963). Condominium statutes, like Ohio’s Condominium Act, overcame this barrier

by defining a new type of property interest. Because these new condominium

ownership interests required a greater reliance on common elements and shared

ownership, the condominium statutes also structured and regulated the covenants

7 Available at https://repository.law.uic.edu/lawreview/vol31/iss2/2. 8 Available at https://archive.org/details/useofdeedrestric00monc/page/68. 9 Available at https://www.aallnet.org/wp-content/uploads/2018/01/Vol-103-Spring-2011-2011-

16.pdf.

29 OHIO FIRST DISTRICT COURT OF APPEALS

burdening those units—imposing shared duties and binding owners to compliance

with rules fashioned by a delegated rulemaking body. This web of restrictions and

obligations was built upon the common law of real covenants, as developed in early

common-interest communities and homeowners associations.

5.

{¶67} An action against a condominium owners association for breach of its

governing documents is in the nature of an action to enforce a real covenant and must

be treated as such for purposes of the jury-trial right preserved in the Ohio

Constitution. Unlike the novel statutory schemes at issue in both Arrington and

McClain, the Condominium Act did not create a novel cause of action where the

common law provided no remedy; it carved out and regulated a subset of common-

law actions for breach of real covenants running with the land. Unlike the wrongful-

imprisonment statute in McClain, the Condominium Act created no new rights or

liabilities, as far as covenants were concerned. Once condominium units were deemed

real property, the common law gave owners a right to enforce reciprocal agreements

that ran with the various units. The Act simply regulated what those agreements would

be and how precisely they could be made. And unlike the workers’ compensation claim

in Arrington, the Condominium Act’s cause of action did not fundamentally alter the

elements or character of the enforcement mechanism it replaced. Rather, the Act

effectively captured and mirrored the evolving common law of real covenants,

including the essential elements necessary for such covenants to run with the land.

{¶68} R.C. 5311.19(A) provides quintessentially common-law relief (damages)

in a quintessentially common-law action (covenant). A unit owner’s suit under

R.C. 5311.19(A) seeks to remedy a breach of the CCRs governing a condominium

property, and is therefore in the nature of a suit to enforce a real covenant running

30 OHIO FIRST DISTRICT COURT OF APPEALS

with the land—or, in this case, running with the condominium unit. If that unit owner

seeks damages to remedy the breach, then their action at common law would have

been in covenant. Actions in covenant, like virtually all damages actions at common

law, were triable to a jury, and our constitution preserves that right to a jury

“inviolate.” We therefore hold that Article I, Section 5, of the Ohio Constitution

preserves a condominium unit owner’s right to a jury trial in an action for damages

under R.C. 5311.19(A). Because Appellants’ damages claim under their second cause

of action fits this bill, it carried a right to a jury trial.

{¶69} Despite Appellants’ right to a jury trial, the trial court entered judgment

in favor of Appellees on Appellants’ second cause of action in its entirety, including the

damages claim.

{¶70} Appellees’ brief offers two theories for why, even accepting that the

damages claim carried a jury right, this decision was proper. They contend (1) that

Appellants’ damages claim was “incidental to” their injunctive claim, such that the

injunctive claim could be tried first, and (2) that the trial court resolved Appellants’

damages claim as a matter of law and so needed to make no factual findings.10 We find

neither argument persuasive.

10 At oral argument, Appellees also suggested that the trial court could find facts in resolving the

second cause of action because such findings were merely “preliminary” and would be non- preclusive in later litigation. To the extent this was an alternative justification for why the trial court’s factual findings on the common factual issues did not affect Appellants’ right to a jury on the damages claim, it was not argued as such in Appellees’ brief. Rather, it was a focal point of oral argument. However, we need not address claims raised for the first time at argument, where such claims could have been raised in the briefs. See Whispering Woods Communities v. Orwig, 2022- Ohio-4426, ¶ 26 (6th Dist.), quoting State v. Clay, 2022-Ohio-2878, ¶ 18 (10th Dist.) (“[I]t is well- established law that an appellate court will generally not consider arguments raised for the first time at oral arguments when a party had an opportunity to raise the issue in its brief.”). We therefore decline to address Appellees’ preliminary-and-nonpreclusive argument.

31 OHIO FIRST DISTRICT COURT OF APPEALS

{¶71} Appellees’ principle argument is that Appellants’ damages claim was

“dependent upon the outcome of the injunctive relief claims because [Appellants’]

damages will presumably be measured by whether the Plan is fully implemented, and

they ultimately have to vacate their units or not.” Thus, Appellees contend, the trial

court was not only permitted but compelled to resolve any factual issues necessary to

the equitable claims before it reached the legal issue.

{¶72} We start from the baseline principle, long established in Ohio law, that

when “a plaintiff unites in the same action causes for equitable relief, and an

independent cause of action for the recovery of money,” and when “issues of fact be

joined” between those claims, “a jury may of right be demanded for their trial.”

Rowland v. Entrekin, 27 Ohio St. 47, 49-50 (1875). In other words, a party has a right

to a jury on each issue of fact subsumed by a jury claim. Compare Civ.R. 39(A)

(requiring jury trial “of all issues so demanded” unless the court “finds that a right of

trial by jury of some or all of those issues does not exist” (Emphasis added.)).

{¶73} The same principle applies whether the trial court holds a single trial or

separate trials. Civ.R. 42(B) permits the trial court to order the separate trial of “one

or more separate issues, claims, cross-claims, counterclaims, or third-party claims,”

but only if doing so would “preserve any right to a jury trial” on any claims or issues to

which such a right attached. However a trial is separated, the trial court must ensure

that the factual issues underlying any jury claims are tried by a jury.

{¶74} However, as Appellees note, there is an exception to this general rule

when a party would only “incidentally be entitled” to damages “as a result of his

obtaining the equitable relief sought.” See Rowland at paragraph two of the syllabus.

If a party has no legal claim unless and until a court of equity first grants equitable

32 OHIO FIRST DISTRICT COURT OF APPEALS

relief, then that party’s equitable claim must necessarily be tried first. Because of this

historical sequencing requirement, a modern court retains the authority to make

factual determinations underlying antecedent equitable claims, without the aid of a

jury, before proceeding to resolve any dependent legal claims. See id.

{¶75} The facts of Rowland clarify the scope of this incidental-relief exception.

In Rowland, the plaintiff sought (1) reformation of a lease and (2) damages for breach

of that reformed lease. Rowland, 27 Ohio St. at 49. The former was a suit in equity,

the latter an action at law. This would ordinarily mean the plaintiff was entitled to a

jury on any common factual issues. However, the Rowland plaintiff’s “right to recover

damages depended wholly on his first obtaining the equitable relief.” Id. If a court of

equity declined to reform the lease, then the lease would have been “defective[],” and

no damages could have flowed from its breach. Id. Thus, the plaintiff had no right to

seek a jury trial on any factual issue underlying the lease reformation—even if the

content of the lease was an issue common to both claims—because the court was

powerless to reach the legal claim until it had fully resolved the equitable one.

{¶76} The Tenth District applied this rule much more recently in a case that

yielded the opposite result: Sidenstricker v. Miller Pavement Maintenance, Inc.,

2004-Ohio-4653 (10th Dist.). In Sidenstricker, the plaintiff brought (1) a claim

seeking damages for wrongful termination in violation of public policy and (2) a claim

seeking reinstatement and lost wages for retaliatory discharge under R.C. 4123.90. Id.

at ¶ 2. The former cause of action, the court said, was legal and usually required a jury

trial, while the latter, statutory claim was equitable in character and required no jury.

Id. at ¶ 11. The two claims shared almost identical factual underpinnings. The

Sidenstricker court held that the plaintiff was entitled to a jury on these shared issues,

because his legal claim was “neither incidental to nor dependent upon first obtaining

33 OHIO FIRST DISTRICT COURT OF APPEALS

equitable relief in the statutory claim.” Id. at ¶ 12. The court reached this conclusion

by applying a straightforward test: Could the plaintiff have chosen to pursue his legal

claim and abandon his equitable claim? Id. The answer, the court said, was “yes.”

Because Sidenstricker could have elected to pursue his common-law claim “in addition

to or in lieu of” his statutory claim, any shared factual issues were for the jury. Id. at

¶ 12, 14.

{¶77} The Sidenstricker court further held that the trial court had erred in

trying the equitable claim first, because doing so “improperly precluded a jury from

deciding whether plaintiff established” the factual elements of his legal claim. Id. at

¶ 15. In order to “preserve[] the right to a jury trial on issues where such a right exists,”

the jury was required to have first crack at all the factual questions necessary to resolve

the claim for legal damages—and the trial court was required to “defer to, and [be]

bound by, the findings of the jury on the common issues.” Id. at ¶ 14.

{¶78} Likewise, in Raskow v. Fortner, 1998 Ohio App. LEXIS 1563 (9th Dist.

Apr. 15, 1998), the Ninth District considered whether a trial court had erred by denying

a jury trial to plaintiffs who sought (1) damages for flooding caused by a dam

constructed by their neighbors, and (2) an injunction requiring those neighbors to

remove the dam. Id. at *1-2. The former claim entitled the plaintiffs to a jury trial; the

latter did not. The defendants in Raskow argued that the plaintiffs’ request for

damages was dependent upon their equitable claim because, “‘[i]f damages were to be

found, . . . the court could do so only by finding that [plaintiffs] were entitled to

injunctive relief.’” Id. at *6. The court rejected this argument. The “plaintiffs’ claim for

damages was a separate cause of action from their claim for equitable relief,” and the

defendants had not shown that prior resolution of the equitable claim was necessary

to resolve the claim for damages. Id. The court balked at the notion that “merely

34 OHIO FIRST DISTRICT COURT OF APPEALS

joining a legal and equitable claim allows a trial court to declare that the complaint is

‘primarily’ for equitable relief, and deny a jury trial on that basis.” Id. at *6-7. If this

were so, plaintiffs “would essentially be forced to plead only legal claims to ensure a

jury trial and forgo equitable ones.” Id. at *7. The trial court had therefore erred “by

deciding the equitable claim before presenting the legal claim to the jury,” as the

plaintiffs’ claim for damages was not “incidental to the equitable relief they requested.”

Id.

{¶79} Both the Sidenstriker and Raskow courts accepted as persuasive

authority decisions from the United States Supreme Court, which interpreted the

Seventh Amendment to require that a jury take first crack at factual issues shared

between legal and equitable claims. See Sidenstriker, 2004-Ohio-4653, at ¶ 13 (10th

Dist.), citing Lytle v. Household Mfg., Inc., 494 U.S. 545, 550 (1990), Dairy Queen,

Inc. v. Wood, 369 U.S. 469, 479 (1962), and Beacon Theatres, Inc. v. Westover, 359

U.S. 500, 510 (1959); see also Raskow at *7-8, citing Lytle at 550.

{¶80} Against these authorities, Appellees cite Precision Strip Inc. v.

Dircksen, 2020-Ohio-6668 (3d Dist.). The trial court in Dircksen had tried the

plaintiff’s declaratory claims, which were equitable in character, to the bench, while

reserving the defendants’ damages counterclaims for a later jury trial. Id. at ¶ 32. The

Third District held that the trial court had not violated the defendants’ jury-trial right,

because the equitable and damages claims “did not share commonality of issues.”

Id. at ¶ 45. Summarily dismissing the relevance of both Sidenstricker and Raskow and

distinguishing Beacon Theaters, the court seemed to suggest that a trial court may try

any equitable claim to the bench before it tries any remaining legal claims to the jury,

so long as those equitable and legal claims share no “overlap in legal issues.” Id. But

discrete legal issues may rest upon similar factual questions. A rule that considers

35 OHIO FIRST DISTRICT COURT OF APPEALS

only “overlap in legal issues” would allow trial courts to resolve certain issues of fact

that would be dispositive of a plaintiff's legal claims without giving the jury first crack

at those factual questions. Such a rule would undermine the precept that “a jury may

be demanded for the[] trial” of multiple causes of action whenever “issues of fact be

joined.” Rowland, 27 Ohio St. at 49-50. Indeed, such a rule would be inconsistent with

Beacon Theatres and its progeny interpreting the Seventh Amendment, which have

uniformly held that, where an action in federal court involves both equitable and legal

claims, and where underlying “factual issues” are “common” to both, “the legal claims

involved in the action must be determined prior to any final court determination of

[the] equitable claims.” See Dairy Queen at 479; see also Raskow at *7, citing Lytle at

550, and Beacon Theatres at 510.

{¶81} Like the courts in Rowland, Raskow, and Sidenstricker, we hold that,

where a plaintiff brings both claims to which a jury right attaches and claims to which

it does not, and where those claims involve common factual issues, the plaintiff has a

right to have those common issues tried to a jury in the first instance, unless they are

truly “dependent” upon and “incidental” to the threshold resolution of the non-jury

claims. Further, we adopt the straightforward test employed by the Sidenstricker court

to determine when this incidental-relief exception applies and hold that, when a

plaintiff could choose to pursue her jury-trial claims “in addition to or in lieu of

pursuing” her non-jury-trial claims, then the latter are not incidental to the former,

and the plaintiff is entitled to a jury on any shared issues of fact. See Sidenstricker,

2004-Ohio-4653, at ¶ 12 (10th Dist.).

{¶82} In this case, Appellants asserted that the Association and Board had

breached the governing documents in creating and implementing the Plan and Policy.

These breaches, Appellants alleged, caused them to suffer compensable injuries, for

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which they sought damages. And allowing the breaches to continue, they alleged,

would cause them further injury, for which they sought an injunction. Appellees

claimed the opposite—that the Association and Board’s actions were proper and that

Appellants should be enjoined to comply. Questions about the meaning of the

governing documents and whether they were breached were common to all claims.

{¶83} Appellants’ operative complaint alleged that Appellants “have and will

continue to suffer damage as a proximate result of the breaches by Defendant HNCA,

and Plaintiffs are entitled to money damages as a result.” In other words, Appellants

alleged that Appellees had already injured them and would likely continue to do so.

We don’t know if Appellants could have proved up their claims of past harms, because

no one asked them to. Prior to trial, no motion, proceeding, or order required either

party to submit evidence. Nor were Appellants obliged to submit such evidence at the

bench trial, given the trial court’s repeated assurances that it would not resolve any

monetary-damages claims.

{¶84} Appellants alleged that Appellees committed unlawful actions that had

already injured them. Appellants could therefore have pursued their damages claims

“in lieu of pursuing” their claim for injunctive relief. See Sidenstricker,

2004-Ohio-4653, at ¶ 12 (10th Dist.). We therefore hold that Appellants’ damages

claims were not purely “incidental” or “dependent upon” their injunctive claims.

{¶85} Next, Appellees argue that the bench trial did not resolve any issues of

fact, but only issues of law regarding the meaning of the governing documents. Such

legal issues, Appellees point out, do not go to a jury. This theory suffers from three

flaws.

{¶86} First, while the trial court asserted that it intended to resolve only

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“issues of law,” its final order clearly went further and resolved issues of fact common

to both Appellants’ legal and equitable claims. The trial court’s order was captioned

“Findings of Fact, Conclusions of Law, and Final Order” and contained numbered

factual findings, many of which resolved open factual questions. For example, the trial

court found that the fires “caused substantial damage to the common areas and

individual units throughout the entire Building, including the dispersal of soot

throughout the Building.” Similarly, the trial court expressly found that the “Board

proved the conditions of the entire building are an imminent risk of harm to owners,

third parties, and public safety,” and that “remediation and reconstruction require the

removal of walls and ceilings in common areas and Units.” But Appellants have always

contested the extent of the damage and the risk that damage created for the other

units. Among the allegations in Appellants’ operative complaint were averments that

the “South end of the building had little smoke damage” and that “[m]ost of the units

in HNC were untouched by the Fire damage.” Appellants likewise alleged that, “upon

information and belief, there is no evidence, data, or conclusion . . . that remaining

‘soot’ poses a health hazard to every unit owner at HNC and requires the removal of

every ceiling of every unit.” Appellants’ factual allegations on these issues were thus

rejected without the aid of a jury.

{¶87} Second, we note that the trial court also appeared to take evidence at the

bench trial about the meaning of the governing documents. “‘Extrinsic evidence is

admissible to ascertain’” a written document’s meaning, but only when that meaning

“‘is unclear or ambiguous, or when circumstances surrounding the agreement give the

plain language special meaning.’” See Tera, L.L.C. v. Rice Drilling D, L.L.C.,

2024-Ohio-1945, ¶ 12, quoting Graham v. Drydock Coal Co., 1996-Ohio-393, ¶ 11.

Once a provision is found to be ambiguous and extrinsic evidence admitted as an

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interpretive aide, the provision’s meaning ceases to be a pure question of law and

becomes a factual question for a jury regarding the parties’ intent. See id. (holding that

“[i]t is generally the role of the fact-finder to resolve any ambiguity” in a written

agreement). To the extent the trial court relied upon extrinsic trial evidence to

construe ambiguous terms in the governing documents, it addressed and resolved

factual questions that should have been left to the jury.

{¶88} Third, even if the trial court had properly concluded that no disputes of

material fact persisted and Appellees were entitled to judgment as a matter of law on

Appellants’ damages claim, the court should have resolved that claim (or at least the

common issues of fact) before holding the bench trial. See, e.g., Civ.R. 56. But because

several common issues of fact remained live at the start of the injunction trial below,

the court proceeded to take evidence on them and to resolve them in its judgment

entry. We are therefore not confronted with a case like Butler Cty. Joint Vocational

School Dist. Bd. of Edn. v. Andrews, 2007-Ohio-5896, ¶ 41-44 (12th Dist.), in which

the trial court held a bench trial on non-jury claims, before disposing of the remaining

jury claims based on undisputed facts and purely legal issues. Rather, in the instant

case, the bench trial both involved and resolved still-disputed facts.

{¶89} The trial court’s decision to rule on Appellants’ claim for damages under

their second cause of action therefore could not be justified on the grounds that its

resolution turned only on questions of law.

IV. CONCLUSION

{¶90} Appellants were entitled to a jury on their claim for damages under their

second cause of action. This damages claim was not “dependent” upon Appellants’

claim for injunctive relief, but the two shared common factual issues that remained in

dispute on the eve of trial. By nevertheless trying all injunctive claims to the bench,

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and by resolving Appellants’ damages claim following the bench trial, the trial court

denied Appellants their right to have a jury resolve those common factual questions

under the Ohio Constitution.

{¶91} We sustain Appellants’ first assignment of error, reverse the trial court’s

judgment, and remand the cause for further proceedings consistent with the law and

this opinion. Because such a disposition renders Appellants’ second assignment of

error moot, we do not address it.

Judgment reversed and cause remanded.

KINSLEY, P.J., and BOCK, J., concur.