2022 Ohio 1496
Ohio Ct. App.2022Background
- Timothy and Lani Wood own Unit 31 in the Cashelmara condominium; Unit 27 (below them) was purchased by SK2 Properties (Steve Kish), who began a renovation in 2017.
- Kish removed the drywall drop ceiling separating the units and installed a furnace in the plenum, producing substantial dust/debris and alleged heat and dust infiltration into the Woods’ unit.
- The Woods complained repeatedly (Aug. 2017–Dec. 2019). Bay Village found Kish had misrepresented permit scope in Oct. 2018, issued a stop-work order, and the court later enjoined unapproved work.
- The Association investigated, hired expert Donald Plunkett and Bureau Veritas; recommended resealing the separation. The remediation implemented was spray-in fire‑retardant foam and sealing penetrations; asbestos testing showed no asbestos in sampled dust.
- The Association concluded in Feb. 2020 it would not expend more effort; the Woods sued for declaratory/injunctive relief, breach of contract, breach of fiduciary duty (derivative), failure to supervise, and negligence. The trial court granted summary judgment for the Association and on its counterclaims; Woods appealed.
- The court of appeals found genuine disputes of material fact about (1) whether the Association was dilatory in investigating/stopping Kish’s demolition and (2) whether the spray-foam remediation adequately restored the common area separation; remanded those claims, affirmed dismissal of fiduciary and asbestos-disclosure claims, and reversed on the counterclaim subrogation issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Association breached Declaration by failing to timely stop Kish and restore common area (ceiling) | Woods: Association knew/was notified in 2017 and delayed; remediation (spray-foam) was inadequate to restore unit and prevent dust/heat | Association: acted as soon as practicable, pursued city/legal remedies, foam and sealing adequately restored separation and further expense would be unreasonable | Genuine issue of material fact exists on timeliness and adequacy of remediation; remanded for trial |
| Whether fiduciary-duty claim against Association is viable | Woods: board had duties to members to stop/remedy breach | Association: board duties are to the corporation; no directors/officers named as defendants | Fiduciary claim fails as pleaded (derivative claim must be against officers/directors or vindicate corporate right); summary judgment affirmed on this claim |
| Whether failure to disclose asbestos release supports relief | Woods: Kish reported asbestos removal; nondisclosure harmful | Association: testing found no asbestos; no evidence of asbestos release or resulting harm | No evidence of asbestos presence or harm; trial court ruling upheld |
| Whether Woods breached obligations re: insurance/subrogation (Association’s counterclaim) | Woods: Declaration does not expressly require owners to make claims or secure waivers; no proof of damages from missing waiver | Association: members must insure units and make claims; Woods failed to obtain waiver of subrogation | Trial court erred granting summary judgment on counterclaim — Association showed failure to obtain waiver but not damages; appellate court reverses summary judgment on counterclaims and remands for further proceedings |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 671 N.E.2d 241 (de novo review of summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (movant burden and nonmovant reciprocal burden on summary judgment)
- Nottingdale Homeowners' Assn., Inc. v. Darby, 33 Ohio St.3d 32, 514 N.E.2d 702 (declaration/bylaws treated as contract)
- Turner v. Turner, 67 Ohio St.3d 337, 617 N.E.2d 1123 (fact issues on remediation/damages for trial)
- Vogel v. Wells, 57 Ohio St.3d 91, 566 N.E.2d 154 (availability of insurance does not automatically absolve alleged tortfeasor)
- Garofoli v. Whiskey Island Partners Ltd., 25 N.E.3d 400 (contract-defined duties preclude separate negligence claim)