Court of Appeals of Ohio, Eighth District, Cuyahoga
WINDSOR REALTY AND MANAGEMENT, INC., ET AL., Plaintiffs-Appellants,
NORTHEAST OHIO REGIONAL SEWER DISTRICT, ET AL., Defendants-Appellees.
Appeal from the Cuyahoga County Court of Common Pleas Case
Lieberman, Dvorin & Dowd, L.L.C., Andrew K. Shibley, and
Darren J. Dowd, for appellants.
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.
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,
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
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. 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.