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Windsor Realty and Management, Inc. v. Northeast Ohio Regional Sewer District

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 1, 2019

WINDSOR REALTY AND MANAGEMENT, INC., ET AL., Plaintiffs-Appellants,
v.
NORTHEAST OHIO REGIONAL SEWER DISTRICT, ET AL., Defendants-Appellees.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-818605

         JUDGMENT: AFFIRMED

          Lieberman, Dvorin & Dowd, L.L.C., Andrew K. Shibley, and Darren J. Dowd, for appellants.

          Eric Luckage, Chief General Officer, and Amanda L. Holzhauer, Assistant General Counsel, for appellee Northeast Ohio Regional Sewer District.

          Barbara A. Langhenry, Law Director, City of Cleveland, and Craig J. Morice and Christopher J. Heltzel, Assistant Directors of Law, for appellee City of Cleveland.

          JOURNAL ENTRY AND OPINION

          RAYMOND C. HEADEN, JUDGE

         {¶ 1} Plaintiff-appellant Windsor Realty and Management, Inc. ("Windsor") appeals from the trial court's orders granting defendants-appellees Northeast Ohio Regional Sewer District ("NEORSD") and the city of Cleveland Water Department's ("the city") joint motion for reconsideration and motions for summary judgment. For the reasons that follow, we affirm.

         I. Statement of the Facts

         {¶ 2} D&M Pine Crest Properties, L.L.C. ("D&M") owns the apartment building known as Pinecrest Apartments, and Windsor acts as the property manager of this building. The apartment building receives water and sewer services from the city and NEORSD, respectively.

         {¶ 3} Windsor claims the city and NEORSD overcharged Windsor for water and sewer consumption at the Pinecrest Apartments in 2005 and 2008. The parties attempted to resolve the alleged billing errors by undergoing inspections of the property to look for leaks; replacing water meters; and meeting with the director of utilities to negotiate a settlement agreement. The attempted remedies did not satisfactorily resolve the overcharges and Windsor filed a lawsuit in December 2013 against the city and NEORSD. D&M, the owner of the apartment building, was not included as a named plaintiff.

         {¶ 4} The parties proceeded with litigation. Windsor filed its first amended complaint on February 23, 2015. The city and NEORSD answered the first amended complaint on July 21, 2016, and July 22, 2016, respectively. As litigation proceeded, the trial court scheduled discovery cut-off date for the litigation to be April 28, 2017, and then proceeded to set the trial date for October 23, 2017. During discovery, defendants-appellees deposed Mark Priore, the president of Windsor and co-owner of D&M. During discovery, Mr. Priore testified that D&M owns the subject apartment building and pays all bills related to the property. Specifically, Mr. Priore testified that D&M is responsible for payment of the water and sewer bills. D&M and Windsor maintain separate bank accounts and D&M has its own account from which the utility bills are paid. Further, Mr. Priore testified that D&M has paid for all legal expenses related to this litigation. It was clear from the proceedings that invoices from defendants-appellees were mailed to Windsor and it was Windsor who negotiated with representatives of the city and NEORSD to attempt to resolve the disputed bills.

         {¶ 5} On May 26, 2017, after the discovery cut-off date, Windsor filed a second amended complaint attempting to add D&M as a new party-plaintiff. In support of its motion, Windsor claimed D&M may be the real party in interest. Windsor asserted the defendants would not be subject to undue delay or prejudice with the addition of the new party-plaintiff. The allegations within the second amended complaint were essentially the same as the original complaint, but the second amended complaint (1) added plaintiff D&M, (2) alleged that D&M and Windsor contracted with NEORSD and the city for the treatment of sewage and supply of water, and (3) incorporated allegations of negligent inspection of the water meter and promissory estoppel.

         {¶ 6} On June 1, 2017, the trial court granted Windsor's second amended complaint to approve the addition of D&M as a new party-plaintiff. The following day, the city and NEORSD filed a joint motion for reconsideration and opposition to plaintiffs motion for leave to amend complaint ("joint motion for reconsideration"). Windsor did not oppose the joint motion for reconsideration. On February 9, 2018, the trial court granted defendants' joint motion for reconsideration and denied Windsor's motion to file a second amended complaint because the motion was "improper and untimely."

         {¶ 7} Motions for summary judgment were filed by the city and NEORSD on May 4, 2018, and granted on July 26, 2018.[1] The court's ruling found Windsor did not have standing to maintain the lawsuit because Windsor could not establish that it had suffered an injury as a result of NEORSD and the city's alleged actions. Windsor filed this timely appeal.

         II. ...


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