Wood v. Cashelmara Condominium Unit Owners Assn., Inc.

2022 Ohio 1496

• Court: Ohio Court of Appeals
• Decided: May 5, 2022
• Docket: 110696
• Status: Published

Opinion

[Cite as Wood v. Cashelmara Condominium Unit Owners Assn., Inc., 2022-Ohio-1496.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

TIMOTHY WOOD, ET AL., :

Plaintiffs-Appellants, : No. 110696 v. :

CASHELMARA CONDOMINIUM : UNIT OWNERS ASSOCIATION, INC.,

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED RELEASED AND JOURNALIZED: May 5, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-21-942871

Appearances:

Gertsburg Licata Co. LPA, Victor A. Mezacapa, III, and Maximilian A. Julian, for appellants.

Reminger Co. LPA, Brian D. Sullivan and Brianna M. Prislipsky; Kehoe & Associates LLC, Robert D. Kehoe and Lauren N. Orrico, for appellee.

EILEEN A. GALLAGHER, J.:

Appellants Timothy and Lani Wood contend that the trial court erred

in granting the Cashelmara Condominium Unit Owners’ Association’s (the

“Association”) motion for summary judgment. We find that there does exist a genuine issue of material fact regarding the timeliness and effectiveness of the

Association’s remediation efforts. Accordingly, we sustain appellants’ first two

assignments of error and the seventh assignment of error, in part. We, therefore,

remand the case for further proceedings consistent with this opinion.

I. Factual and Procedural Background

Lani and Timothy Wood are the owners of Unit 31 in the Cashelmara

condominium complex located in Bay Village, Ohio. This complex is managed by

the Association and has several employees, including George Sirow as the property

manager.

The unit immediately below the Woods’ Unit is Unit 27 and was

purchased in 2015 by SK2 Properties LLC, owned by third-party defendant, Steve

Kish, at a foreclosure sale.

In August 2017, Kish began a remodeling project in Unit 27. As part

of the project, Kish removed the drop ceiling from his unit to uncover the plenum

space between his unit and the Woods’ unit above. The plenum space contains ducts

for several other units in the building. Above the plenum space is the floor for the

Woods’ unit. The only thing separating the plenum space from Kish’s unit is a

drywall drop ceiling. At some point in the remodeling project, Kish hired

contractors who demolished the drop ceiling.

This work created a significant amount of debris and dust. The

removal of the drop ceiling also eliminated a barrier that prevents the infiltration of

dust into the Woods’ unit and allowed such permeation. Kish also changed the location and type of furnace in his unit. The new furnace was installed in the plenum

space that had previously existed between the units. The Woods found that the new

furnace, in its new location, made their unit uncomfortably hot.

Documents in both the summary judgment motion practice and the

verified complaint establish that the Woods complained to Cashelmara about the

noise and dust on: August 7, 2017; September 7, 2017; March 1, 2018; September 3,

2018; October 26, 2018; December 23, 2018; September 6, 2019; November 19,

2019 and December 13, 2019.

The Association contends that there was no way it could have known

that Kish was exceeding the scope of any permits or breaching the terms of the

Declaration of Condominium Ownership (the “Declaration”) because Kish had not

informed the board of precisely what work he was doing in his unit. Accordingly,

the Association contends that it had no right to stop Kish’s work until it became

aware that Kish had exceeded that allowed by his building permits and that he was

working in the common areas of the condominium.

At a meeting in Kish’s unit on October 25, 2018, the Bay Village

Building Department representative discovered that the scope of work had been

misrepresented when Kish obtained his permits. Bay Village then pursued criminal

charges against Kish for misrepresenting the scope of the work and they issued a

stop work order the next day. At that meeting, Kish represented that asbestos was

removed from the pipes as part of the renovation. The Association hired Donald Plunkett to provide an expert opinion

concerning the remediation of Kish’s unit. In his opinion, “[t]he best solution to

correct the problem created with the remodeling of [Kish’s unit] would be to get the

ceiling back in to eliminate the possibility of migration of gypsum dust into [the

Woods’ unit].” Plunkett recommended that the furnace for the Woods’ unit be

thoroughly cleaned and the filter changed, but he did not state that the furnace for

Kish’s unit should be moved from its present location.

The Association also retained Bureau Veritas to conduct an analysis

of the dust that intruded into the Woods’ unit. The report did not indicate the

presence of asbestos. A subsequent email (Exhibit D to the Motion for Summary

Judgment) indicates that, had there been asbestos present, the test would have

detected it and the report would have reflected that information.

In April 2019, Kish received limited approval to install spray-in fire-

retardant as a replacement for the drop-in ceiling. There is an email dated

October 16, 2019, which states that “Kish completed the installation of fire

protection material on the ceiling a week ago.” There are also early 2020 emails that

confirm that the fire-retardant insulation had been installed. However, there is also

an email dated September 6, 2019, inquiring whether “the recent fire-retardant

application * * * affect[ed] the dust/debris infiltration to [the Woods’] unit[.]” The

exact date or dates when the foam was installed is unclear in the record.

The Association produced the revised opinion from Plunkett in a

letter which concluded that “[t]he foam sp[r]ay has been applied at the top of the wall and at penetrations through the wall as requested and to my satisfaction. This

should complete the separation that was lost when the gypsum board ceiling was

removed by the suite owner.” Plunkett concluded that “it is my opinion if any more

of the white (gypsum [b]oard) dust is found in [the Woods’ unit] above it should not

be able to come from [Kish’s unit].”

The verified complaint includes notes from Sirow stating that he was

unsuccessful in trying to find or replicate the dust issue after the insulation was

sprayed. On February 20, 2020, the Cashelmara Board determined that “[t]he

Association has expended considerable effort to resolve this issue, evidenced by the

e-mails, visits to your unit, conversations and the employment of outside

consultation. As a result, the Board has concluded no additional effort or expense

will be directed toward this matter, by The Association.”

Further, the Association attached Sirow’s affidavit to the motion for

summary judgment, which averred “[i]t is my opinion and belief that if there is any

dust in the Woods’ unit it is not coming from the unit below them. The two units

are separated by concrete, steel and flooring.”

A. Initial Action against Kish and SK2 Properties, LLC

In 2019, shortly after the October meeting, the Association

commenced an action in the Cuyahoga County Court of Common Pleas against Kish

requesting the issuance of an injunction to prevent further work on the demolition

or construction in his unit. On February 12, 2019, the court enjoined Kish from pursuing all remodeling efforts that had not been approved by the Association or the

city of Bay Village.

The injunction provided that Kish “must commence restoration of the

common areas within 30 days of this order. A failure to obtain the approvals to do

so and commence the work allows Plaintiff to have the work performed and charge

the costs to Defendants.” Ultimately, Kish and the Association reached a resolution

to the dust infiltration, fire hazard, sound insulation and temperature control which

would be to spray fire-retardant insulation on the exposed underside of the concrete

floor between Kish’s unit and the Woods’ unit.

B. The Action Below

The Woods found this solution unsatisfactory. In their view, the use

of fire retardant failed to ameliorate the conditions of their unit. Further, they

contend that they continue to have problems with dust infiltration and temperature

swings caused by the placement of the furnace under their unit’s floor. In the

Woods’ view, the remedial measures came much too late and failed to actually

restore their unit to its prior condition.

The Association, by contrast, maintains that while there was likely

dust infiltration from the construction in Kish’s unit, the holes and ducts have all

been inspected and sealed, that the insulative properties of the fire retardant are

sufficient to prevent any unreasonable temperature swings in normal usage and that

any continued dust intrusion must have its origin somewhere other than Kish’s unit. The verified complaint sets forth six counts: Count 1 — Declaratory

Judgment; Count 2 — Preliminary and Permanent Injunctive Relief; Count 3 —

Breach of Fiduciary Duties; Count 4 — Breach of Contract; Count 5 — Initial Failure

to Inspect, Supervise, or Stop the Demolition of [Kish’s unit]; Count 6 — Negligence.

Essentially, all of these counts rely on the contention that the

Association wrongfully failed to timely stop Kish’s demolition and failed to restore

the unit to the condition it was in when Kish started his project.

Specifically, the Woods point to the following language in the

Cashelmara Declaration:

Except as otherwise provided herein, the management, maintenance, repair, alteration and improvement of the common areas and facilities, including limited common areas and facilities, shall be the responsibility of the Association.

Declaration, Article XIV.

The Board shall arrange for the prompt repair and restoration of the damaged or destroyed Condominium Property and the Board shall disburse payments to the contractors (including the proceeds of any insurance) engaged in such repair and restoration in appropriate progress payments.

Declaration, Article XVIII(B).

The Association filed counterclaims alleging that the Woods breached

their obligations under the Declaration and Bylaws and that the Woods breached

their obligations under R.C. 5311.19. Much like the several members of the

Association, the Association may enforce the terms of the Declaration and Bylaws

against the individual members as a contractual right. Further, R.C. 5311.19(A)

provides: All unit owners * * * shall comply with all covenants, conditions, and restrictions set forth * * * 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[.]

Specifically, the Association alleges that the Woods breached their

obligations under the Declaration in failing to obtain waivers of subrogation from

their insurance company and in failing to make a claim on their homeowner’s

insurance policy. The Association specifically contends that “[t]he governing

documents clearly state that unit owners will make a claim with their insurer for any

damage to the interior of the unit, regardless of the source of the damage[.]”

The Association joined Kish and Sk2 Properties, LLC as third-party

defendants making claims for indemnity and contribution.

The trial court below granted summary judgment in favor of the

Association on both the plaintiff’s claims and on the Association’s counterclaims.

Following the trial court’s grant of summary judgment in favor the Association, the

Association dismissed, without prejudice, its third-party claims against Kish and

SK2 Properties LLC.

II. Argument and Authorities

Appellants raise seven assignments of error. Initially, we will address

the first and second assignments of error together because they are related.

Assignment of Error No. 1: The trial court erred when it granted Appellee’s Motion for Summary Judgment.

Assignment of Error No. 2: The trial court erred when it granted Appellee’s Motion for Summary Judgment on Its Counterclaim. We review summary judgment rulings de novo, applying the same

standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

N.E.2d 241 (1996). We accord no deference to the trial court’s decision and conduct

an independent review of the record to determine whether summary judgment is

appropriate.

Under Civ.R. 56, summary judgment is appropriate when no genuine

issue exists as to any material fact and, in viewing the evidence most strongly in favor

of the nonmoving party, reasonable minds can reach only one conclusion that is

averse to the nonmoving party, entitling the moving party to judgment as a matter

of law.

On a motion for summary judgment, the moving party carries an

initial burden of identifying specific facts in the record that demonstrate his or her

entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293,

662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary

judgment is not appropriate; if the moving party meets this burden, the nonmoving

party has the reciprocal burden to point to evidence of specific facts in the record

demonstrating the existence of a genuine issue of material fact for trial. Id. at 293.

Summary judgment is appropriate if the nonmoving party fails to meet this burden.

Id.

The first two counts of the verified complaint are claims for

declaratory and injunctive relief. Both of these allegation’s rest on the claim that the

Association is in breach of its obligations under the Declaration and Bylaws. Accordingly, the factual predicate of both these claims is the same as the claim for

breach of contract and will be considered together below.

For their breach-of-contract claim (Counts 4 & 51 of the verified

complaint), the Woods rely on the declaration. “‘Condominium declarations and

bylaws are contracts between the association and the purchaser and are subject to

the traditional rules of contract interpretation.’” Heba El Attar v. Marine Towers

E. Condominium Owners’ Assn., 8th Dist. Cuyahoga No. 106140, 2018-Ohio-3274,

¶ 9, quoting Grand Arcade, Ltd. v. Grand Arcade Condominium Owners’ Assn., 8th

Dist. Cuyahoga No. 104890, 2017-Ohio-2760, ¶ 16, citing Nottingdale

Homeowners’ Assn., Inc. v. Darby, 33 Ohio St.3d 32, 35-36, 514 N.E.2d 702 (1987).

For their breach of fiduciary duty claim (Count 3 of the verified

complaint), the Woods rely on the fiduciary duty that the condominium board owes

to the not-for-profit corporation that comprises the Association. The condominium

association is a nonprofit corporation and the board owes duties under that basis.

O’Loughlin v. Ottawa St. Condominium Assn., 6th Dist. Lucas No. L-16-1128, 2018-

Ohio-327, ¶ 33. However, while the board owes a duty to the Association, “boards

of condominium associations are not charged under the common law with a

fiduciary duty to their members.” Kleemann v. Carriage Trace, Inc., 2d Dist.

Montgomery No. 21873, 2007-Ohio-4209, ¶ 40. See also Akerstrom v. 635 W.

Lakeside, Ltd., 2018-Ohio-98, 105 N.E.3d 440, ¶ 18 (8th Dist.).

1 Count 5 is not expressly styled as a breach-of-contract claim, but it rests on allegations that the Association breached its obligations under the Declaration. We note that the Woods, insofar as they seek to enforce this duty, seek

to do so on behalf of the Association. The derivative cause of action “provides for an

action to enforce a corporate right and not a personal right.” Russell v. United

Missionary Baptist Church, 92 Ohio App.3d 736, 739, 637 N.E.2d 82 (12th

Dist.1994). The derivative nature of the claim is the reason that plaintiffs filed a

verified complaint. Civ.R. 23.1. The derivative action seeks to vindicate the duty

owed by the board of the corporation to the corporation as a whole and not a duty

that is owed to a particular member or shareholder. The difficulty here is that the

sole defendant, the Association, is not a party that owes duties and is properly the

plaintiff in a breach of fiduciary duty action. See Miller v. Gen. Motors Corp., 8th

Dist. Cuyahoga No. 55200, 1989 Ohio App. LEXIS 1099, at 12-13 (Mar. 30, 1989),

quoting Ross v. Bernhart, 396 U.S. 531, 538-539, 90 S.Ct. 733, 24 L.Ed.2d 729

(1970). No director or officer of the association is named as a party-defendant.

This case is a demonstration of why such a fiduciary duty cannot be

owed to the individual residents. “A fiduciary duty is generally defined as a duty of

utmost good faith, trust, confidence, and candor owed by a fiduciary to the

beneficiary; a duty to act with the highest degree of honesty and loyalty toward

another person and in the best interests of the other person.” DiPasquale v. Costas,

186 Ohio App.3d 121, 2010-Ohio-832, 926 N.E.2d 682, ¶ 122 (2d Dist.) (quotations

and alterations omitted). If the Association owed fiduciary duties to individual

residents, then it may well be that the Association would have the duty to act in the

best interest of residents who have diametrically opposed interests. Thus, the board’s obligation is to make the best decisions possible for

the long-term management and interests of the Association. The board in this

context must be able to balance, for instance, the desire to replace a drywall drop

ceiling versus the cost of so doing or under different circumstances. Accordingly,

since the verified complaint does not name any director or officer and the only

named defendant does not owe the named plaintiff any fiduciary duty, the trial court

did not err in granting summary judgment on this claim.

The Woods also include a claim for breach of the ordinary duty of

negligence. The basis of this duty is not clear. The claim is against the Association.

Given that the Association already has its obligations defined in the Declaration and

Bylaws, the additional imposition of a duty of negligence is unwarranted. Where a

relationship is defined by contract obligations, those obligation prevent the

application of a generalized claim for negligence because the parties have already

defined the scope of their obligations. See Garofoli v. Whiskey Island Partners Ltd.,

2014-Ohio-5433, 25 N.E.3d 400, ¶ 22 (8th Dist.) (“Because all of the alleged duties

in this case arise out of the contract * * * the trial court properly granted summary

judgment to [defendant] on the negligence claim.”). The trial court did not err in

determining that the plaintiffs could not maintain a separate cause of action for

negligence because the Declaration and Bylaws establish the obligation of the

Association to maintain and repair the common areas. Accordingly, the Woods’ various claims reduce to a claim for breach

of contract. The Woods contend that the trial court erred in granting judgment on

these claims based on a series of specific alleged breaches.

A. Duty to Repair Ceiling in Kish’s Unit and Duty to Investigate, Supervise, and Stop the Unauthorized Demolition in Kish’s Unit

The Woods allege that the Association failed to discover, in a timely

fashion, that Kish was breaching the terms of the Declaration and, after discovering

that Kish had caused his contractors to remove the drop ceiling and appropriate a

common area to make it part of his personal unit, the Association’s efforts to

remediate the damage were inadequate.

“Condominium declarations and bylaws are contracts between the

association and the purchaser and are subject to the traditional rules of contract

interpretation.” Grand Arcade, Ltd. v. Grand Arcade Condominium Owners’ Assn.,

8th Dist. Cuyahoga No. 104890, 2017-Ohio-2760, ¶ 16, citing Nottingdale

Homeowners’ Assn., Inc. v. Darby, 33 Ohio St.3d 32, 35-36, 514 N.E.2d 702 (1987).

Specifically, the Woods point to language in the Declaration requiring the

Association to “arrange for the prompt repair and restoration of the damaged or

destroyed Condominium Property[.]” Declaration, Article XVIII(B).

There does not appear to be any dispute in this case that Kish did

exceed the scope of his building permits and conducted demolition of the common

area of the condominium. Nor does there appear to be any dispute but that the

Association has the authority to cause Kish to repair the ceiling himself for the

Association to have the repairs completed and bill Kish for the work. Instead, the dispute centers around the Associations’ claims that it

acted as soon as it could through the appropriate channels and that the solution the

Association chose, spray-in-foam, is adequate to restore the properties of the drop-

in ceiling that were lost during Kish’s remodeling project. The Association further

maintains that, while it may be preferable to restore the destroyed drop ceiling, such

a solution is cost prohibitive.

According to the Association, they investigated as quickly as they

could and pursued all reasonable legal avenues of enforcement against Kish’s

remodeling project. The difficulty, in the view of the Association, is that some

measure of remodeling is acceptable for a resident to undertake without obtaining

board approval and that Kish had obtained building permits from the city of Bay

Village. However, according to the verified complaint, “Plaintiff L. Wood notified

Sirow in or around September 2017 that the ceiling in [Kish’s unit] was being

removed. Sirow responded that [Kish’s unit] had a Bay Village building permit to

demolish and there was nothing he could do about it.”

Civ.R. 56 expressly permits a court to consider pleadings. In any

event, the verified complaint included a jurat swearing that the contents of the

complaint were true and accurate. Accordingly, the verified complaint is the

equivalent of an affidavit. R.C. 2319.02 (“An affidavit is a written declaration under

oath, made without notice to the adverse party.”). Thus, the Woods filed a sworn

statement that Cashelmara was notified that Kish was destroying common areas in

2017. Furthermore, a letter, dated September 3, 2018, which is attached to Timothy Wood’s affidavit in the Woods’ opposition to Cashelmara’s Motion for Summary

Judgment states that the ceiling of Kish’s unit must be replaced. The letter implies

the destruction of the ceiling was a known fact. It was not until nearly two months

later when the Association and Bay Village stopped the construction project of Kish.

The Association contends that the spray-in-foam along with the other

work done to seal the penetrations in the floor reasonably prevents any infiltration

of dust from Kish’s unit to the Woods’ unit. Accordingly, further expenditures on

the part of the Association would constitute an unnecessary expense for the other

members of the Association.

The affidavit attached to the Woods’ opposition to Cashelmara’s

motion for summary judgment averred that the dust continued to “invade” the unit

after the installation of the spray-in-foam. Cashelmara has produced the affidavit

of Sirow who opined that any additional dust infiltrating the Woods’ unit must come

from a source other than Kish’s unit.

This dispute is material. If the remediation efforts of the Association

are sufficient to restore the separation between the Woods’ and Kish’s units, then

the Association may well have properly restored the common area. However, if the

remediation efforts did not restore the separation between the units, a reasonable

factfinder may indeed determine that the Association failed to restore the common

area that Kish had destroyed. Such a dispute “can be resolved only by the trier of

fact.” Turner v. Turner, 67 Ohio St.3d 337, 342, 617 N.E.2d 1123 (1993).

Accordingly, we sustain these assignments of error insofar as the record establishes a dispute of material fact exists concerning whether the fire-retardant foam provides

an adequate substitute for the false ceiling and whether the Association was dilatory

in investigating Kish’s demolition.

B. Duty to Disclose the Release of Asbestos

The record reflects that Kish stated that he had removed asbestos

from the property. However, testing casts doubt on whether any asbestos was, in

fact, removed since there was no asbestos found in the tested dust. Other than Kish’s

statement that asbestos was present, there is no evidence that asbestos was removed

from Kish’s unit.

In any event, the burden rests on the Woods to show harm arising

from the alleged failure to disclose the alleged release of asbestos. In the absence of

any evidence that asbestos was ever in the structure, there is no evidence of any

possible harm caused by the alleged failure to disclose. Accordingly, appellants have

not shown that the trial court erred with respect to this allegation.

C. Woods’ Duty to Make a Claim on Their Insurance Policy and to Secure a Waiver of Subrogation Rights

The Association’s counterclaims contend that the Woods failed to

make a claim on their insurance policy and failed to ensure that their insurance

policy contained a waiver of the insurance company’s right to subrogate any claim

that the Woods may have against the Association.

Nothing in the Declaration expressly requires that the Woods submit

such a claim to their insurance company. Although the Declaration requires each

member to obtain a homeowner’s policy, there is no express requirement that a member of the Association make a claim on the policy. Appellee contends that

“[c]combined, the clear mandate of these provisions is that a unit owner will make

a claim under its own insurance policy in the event of damage to the interior of the

unit.” However, no quotation to the alleged “clear mandate” is provided. Instead,

this “clear mandate” is implied in the Declaration in a combination of the

requirement that each member must insure their own unit and that the Association’s

policies only cover common areas.

In any event, the availability of an insurance policy typically does not

establish a defense in favor of an alleged tortfeasor or a party who is alleged to have

breached a contract. See Vogel v. Wells, 57 Ohio St.3d 91, 101, 566 N.E.2d 154

(1991).

The Association produced evidence that the Woods had failed to

secure a waiver of subrogation rights on the part of the insurance company but

provides no evidence that the failure to obtain this waiver has caused the Association

any damages. Accordingly, we find that the court erred in granting summary

judgment in favor of the Association on the counterclaims.

Assignment of Error No. 3: The trial court erred when it ruled on Appellee’s Motion for Summary Judgment on Its Counterclaim despite admissions that were deemed admitted by rule and not withdrawn

The trial court has discretion — upon motion by a party — to permit

the withdrawal or amendment of Civ.R. 36(A) admissions. Id. at ¶ 15. Civ.R. 36

does not specify that a formal motion is required nor does the rule identify a time

when the motion must be filed. Balson v. Dodds, 62 Ohio St.2d 287, 290, 405 N.E.2d 293 (1980), fn. 2. Courts have accepted, absent a written or oral motion to

withdraw, various challenges to the truth of an admission as implicit motions to

withdraw. C.S.J. v. S.E.J., 8th Dist. Cuyahoga No. 108390, 2020-Ohio-492, ¶ 12.

Here, appellants contend that the trial court erred because “the

requested admissions deemed admitted by rule for Cashelmara’s failure to respond

were also entirely dispositive of the [counterclaims].” According to appellants, the

requests were propounded on May 10, 2021, with responses due by June 7, 2021.

On June 11, 2021, appellants filed “Notice of Defendant’s Admission of Requests for

Admission Due to Non-Response.” That same day, appellee filed a notice indicating

that the answers to the requests for admission had now been provided and that the

original failure to include them was an accidental oversight.

Appellants argues that the trial court erred in determining that the

discovery responses deemed the notice of admission moot. Appellants provide no

argument or evidence that appellee’s answers, being untimely by four days,

prejudiced appellants’ ability proceed with the case. Appellants have not shown that

the trial court abused its discretion. We overrule this assignment of error.

Assignment of Error No. 4: The trial court erred when it denied Appellants’ request for leave to move for summary judgment.

“[A] trial court has discretion to grant or deny leave to file for

summary judgment after the matter has been scheduled for pretrial or trial, and will

not be reversed without showing that discretion was abused.” Eberhard Architects, L.L.C. v. Schottenstein, Zox & Dunn Co., L.P.A., 8th Dist. Cuyahoga No. 102088,

2015-Ohio-2519, ¶ 13.

Appellants argue that the trial court erred in denying leave to file a

motion for summary judgment because appellants were entitled to judgment.

However, as discussed above, the record shows a dispute of fact concerning whether

the spray-foam insulation remediated the problem and whether the Association

intervened in a timely fashion. As a result, the Woods cannot show that the trial

court abused its discretion in denying leave to file a motion for summary judgment

and we overrule this assignment of error.

Assignment of Error No. 6: The trial court erred when it prematurely ruled on Appellee’s Motion in Limine Regarding Asbestos/Respiratory Issues.

Here, appellants contends that the trial court erred in granting a

motion in limine. However, that motion was for a trial that never happened.

Appellants cannot show any prejudice arising from the trial court’s resolution of that

motion in limine. Accordingly, we overrule this assignment of error.

Assignment of Error No. 7: The trial court erred when it arbitrarily struck Appellants’ Memorandum in Opposition to Third-party Defendants’ Motion for Summary Judgment.

The entirety of appellant’s argument on this assignment follows:

The trial court stuck the Woods’ Memorandum in Opposition to Kish’s Motion for Summary Judgement with reference to “JE 6/23/21 – which bears no relationship to the Woods’ Memorandum in Opposition to Kish’s Motion for Summary Judgment.” (See R. 77 (striking Cashelmara’s Supplemental Brief in Opposition to Kish’s Motion for Summary Judgment).) This was clear, reversible error. This is clearly a typographical error in the journal entry. The journal

entry referenced does indeed order that a supplemental brief of Cashelmara be

stricken and the description in a separate journal entry does indicate that a brief

filed by the Woods was stricken. However, the public docket contains Woods’ brief

while the Cashelmara brief was removed. This indicates that the inclusion of the

language in the description of the Woods brief is merely a clerical, and thus

harmless, error. As the case is remanded based on our resolution of the first two

assignments of error, we sustain this assignment of error, in part.

For the foregoing reasons we sustain appellant’s first two assignments

of error and seventh assignment of error, in part. We overrule appellant’s remaining

assignments of error and remand this case to the trial court for further proceedings

consistent with this opinion.

It is ordered that appellants and appellee share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

___ EILEEN A. GALLAGHER, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and EMANUELLA D. GROVES, J., CONCUR