Civil Appeal from Vandalia Municipal Court Trial Court Case No. 12-CVF-580
DAVID E. STENSON, Atty. Reg. #0042671, Attorney for Plaintiff-Appellant.
SCOTT A. LIBERMAN, Atty. Reg. #0058432, Attorney for Defendant-Appellee.
(¶ 1} Howard Mason appeals from the trial court's entry of summary judgment against him on his amended complaint seeking damages related to the repair of a natural-gas line.
(¶ 2} In his sole assignment of error, Mason contends the trial court erred in entering summary judgment for the appellee, Townhouses of Catalpa, where genuine issues of material fact exist.
(¶ 3} The record reflects that Mason owns a unit in the Townhouses of Catalpa, a condominium association. According to his amended complaint, he purchased the unit in March 2011. (Doc. #22 at ¶4). In August 2011, he discovered the unit's natural gas was not working. (Id. at ¶6). A Vectren utility technician "determined that there was a blockage in the line between the service line and the connection to the unit." (Id. at ¶7). Mason paid to have the line repaired. He then requested reimbursement from Townhouses of Catalpa, which claimed the repair was his responsibility and refused to pay. ( Id. at ¶8-11). In his amended complaint, Mason sought damages from Townhouses of Catalpa for breach of contract, temporary loss of use of his unit, and a violation of unspecified "Truth in Advertising Laws" with false advertising. ( Id. at ¶12-24).
(¶ 4} After Mason failed to respond to requests for admissions, Townhouses of Catalpa moved for summary judgment. (Doc. #30). It presented evidence that the gas-line blockage was not in the common service line that supplied all units. Rather, the blockage was in an underground line connecting Mason's unit to the common line. Townhouses of Catalpa relied on its governing declarations and by-laws to establish that Mason bore responsibility for repairing blockage in the gas line to his unit. Finally, it cited its requests for admissions, which, among other things, sought an admission that Mason had received the declarations and by-laws. Townhouses of Catalpa argued that Mason's failure to respond constituted an admission under Civ.R. 36(A).
(¶ 5} Mason opposed the motion. (Doc. #34). He argued that discovery remained "ongoing" and that he should be given time to cure his failure to respond to the requests for admissions. He further argued that the requests for admissions, even if deemed admitted, did not resolve the central issue, namely which party bore responsibility for repairing the blocked line. Finally, Mason argued, without elaboration, that he interpreted the declarations and by-laws differently than Townhouses of Catalpa and that this dispute constitutes a genuine issue of material fact.
(¶ 6} The trial court entered summary judgment for Townhouses of Catalpa. (Doc. #35). It found summary judgment proper "[f]or the reasons stated in Defendant's Motion[.]" We review this grant of summary judgment de novo, which means "we apply the standards used by the trial court, " Brinkman v. Doughty, 140 Ohio App.3d 494, 497, 748 N.E.2d 116 (2d Dist.2000). Summary judgment is appropriate when a trial court correctly finds "(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).
(¶ 7} Mason's assignment of error raises three issues. First, he claims a genuine issue of material fact exists regarding the location of the gas-line blockage. Second, he contends the requests for admissions, even if deemed admitted by his failure to respond, do not establish his responsibility for the repair. Third, he argues that the trial court erred in failing to address the truth-in-advertising claim in his complaint.
(¶ 8} Having reviewed the record, we believe the trial court erred in entering summary judgment for Townhouses of Catalpa. In support of its motion, Townhouses of Catalpa submitted an authenticated copy of the service-call tag from the Vectren technician who responded to Mason's complaint. The technician diagnosed the problem as "a block in houseline" that was "somewhere underground." (Doc. #30 at Exh. 2). For his part, Mason claimed the blockage was "in the line between the service line and the connection to the unit." (Doc. #22 at 7). The service-call tag and Mason's own allegations support Townhouses of Catalpa's argument that the blockage was in a gas line running from the common service line to Mason's unit. Townhouses of Catalpa persuasively argues in its brief that "[a] blockage between the service line (common line) and connection to the unit can only be in one place-the houseline."
(¶ 9} From a summary judgment perspective, however, the problem for Townhouses of Catalpa is that nothing in the declarations and by-laws before us establishes Mason's responsibility for the repair. Townhouses of Catalpa argued below, and asserts on appeal, that its governing documents "make an underground houseline the responsibility of the Family Unit owner." (Appellee's brief at 4). Having examined the documents attached to ...