Cerreta Interiors, L.L.C. v. New Moon, L.L.C.Cerreta Interiors, L.L.C. v. New Moon, L.L.C.
JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: October 23, 2025
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-22-973051
Appearances:
Ritzler, Coughlin & Paglia, Ltd., Michael A. Paglia, and Jonathon Angarola, for appellee Cerreta Interiors, LLC.
Collins, Roche, Utley & Garner, LLC, and Patrick M. Roche, for appellee Northeast Ohio HVAC, LLC.
Schneider Bell, Thomas J. Connick, and Jenna R. Bird, for appellants.
SEAN C. GALLAGHER, J.:
{¶ 1} The New Moon, LLC, Dawn Bartos, and Robert Bartos (collectively “New Moon“) appeal the judgment entered in favor of Northeast Ohio HVAC, LLC
{¶ 2} New Moon leased a commercial property from Cerreta. During the lease period, Cerreta hired NEO HVAC to perform work on the property. Employees of NEO HVAC relocated duct work in the building and in the process cut thrоugh a brick wall. According to the allegations in the complaint, the employees failed to take measures to prevent the spread of dust containing crystalline silica while making the cuts, such as isolating the area where the cuts occurred, external venting, or using a wet saw. Crystalline silica is a designated carcinogen with set exposure limitations. The lack of remedial efforts led to dust being spread throughout the building, covering New Moon‘s inventory and retail space.
{¶ 3} New Moon presented an expert who confirmed that crystalline silica was present in the dust created by NEO HVAC‘s work that had settled around the building. He did not conduct any testing to determine whether the dust was aerosolized in the breathable air but nonetheless determined that levels within the
{¶ 4} The pertinent claims against Cerreta advanсed by New Moon in the operative pleading are for breach of lease agreement, breach of landlord duties and responsibilities, negligence, declaratory and injunctive relief, negligent misrepresentation, fraudulent concealment, and constructive eviction, all of which are based on the causing or the failure to remediate the danger. The claims advanced against NEO HVAC are for negligence, breach of implied warranties, and nuisance for causing the spread of the dust.
{¶ 5} Cerreta filed a motion for summary judgment claiming that it cannot be held liable for thе hiring of NEO HVAC under general negligence principles. According to Cerreta,
while an employer is vicariously liable for the negligent acts of its employees committed within the scope of employment under the doctrine of respondeat superior, an employer of an independent contractor is not liable for the negligent acts of the independent contractor.” (Emphasis added.) [Hartings v. Nat. Mut. Ins. Co., 2014-Ohio-1794 (3d Dist.)] at ¶ 61, citing Pusey v. Bator, 94 Ohio St.3d 275, 278 (2002); Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 438 (1994).
(Emphasis in original.) No other argument was presented in Cerreta‘s motion for summary judgment pertaining to the remaining claims.
{¶ 6} NEO HVAC filed its separate motion for summary judgment claiming that (1) New Moon failed to present evidence in support of their claim for negligence because New Moon was unable to prove that the dust created by their work contained crystalline silica; (2) that there was no privity of contract for the purposes of the implied warranty claim; and (3) that nuisance was not the proper cause of action because the dust was a tangible and physical invasion of real property and fell under a trespass theory. According to NEO HVAC, and contrary to New Moon‘s undisputed evidence, “the record shows that any dust in the New Moon store was completely benign.” NEO HVAC primarily relied on an inadmissible statement from a Bureau of Workers’ Compensation Division of Safety and Hygiene letter purporting to conclude that the “respirable dust” was below the “ACGIH TLV” and the “OSHA PEL to Respirable Dust.” NEO HVAC never explained the meaning of those acronyms or their relevance to its argument presented in the summary-judgment motion.
{¶ 7} Further, that unauthenticated letter was introduced through Dawn Bartos‘s testimony, primarily limited to acknowledging receipt of it after her
{¶ 8} The trial court grаnted both motions, concluding that “pursuant to
{¶ 9} Appellate review of summary judgment is de novo, governed by the standard set forth in
{¶ 10} Cerreta‘s motion for summary judgment failed to address all claims advanced in the complaint. The solitary argument that it was not liable in tort for the acts of NEO HVAC as an indеpendent contractor could not dispose of the breach-of-contract, declaratory-relief, or negligence claims that are not only based on the alleged dispersing of the dust, but also the currently undisputed evidence of Cerreta‘s inadequate remediation. At the leаst, the summary-judgment motion could only result in a partial judgment. Cerreta‘s motion addressed less than all the claims asserted by New Moon. Further, although Cerreta cited the general rule that
{¶ 11} According to Cerreta‘s own citation to authority, in order to determine whether a party is an employee or an independent contractor, “[courts] must resolve the central question of ‘who had the right tо control the manner or means of doing the work[?]‘” Hartings, 2014-Ohio-1794, ¶ 62, quoting Bostic v. Conner, 37 Ohio St.3d 144 (1988), paragraph one of the syllabus. That form of “inquiry is fact-intensive and requires the consideration of a number of factors, none of which are dispositive by themselves.” (Emphasis added.) Id., citing Bostic at 146 and Hartings. The entirety of Cerreta‘s argument in favor of summary judgment was limited to the conclusory statement that “[i]n this case there is simply no reсord evidence Cerreta is liable for work performed by independent contractors; namely, Co-defendants NEO HVAC who allegedly caused this silica dust at dangerous levels . . . .” This is insufficient to sustain the burden of demonstrating the absence of genuine issues of material fact.
{¶ 13} NEO HVAC‘s motion for summary judgment was equally unavailing. Its motion was primarily focused on the claim that New Moon failed to demonstrate hazardous exposure based New Moon‘s expert‘s concession as to not conducting any airborne testing. New Moon presented evidence from its expert, documenting thе existence of unhealthy levels of crystalline silica in the settled dust around the building. From that, he opined that any airborne disbursement would be sufficient to cause injury. There is no dispute at this stage as to the hazardous nature of that substance at certain levels. NEO HVAC understandably disagrees with New Moon‘s
{¶ 14} Importantly, NEO HVAC identified nothing in the record establishing the fact that the hazardous material must be airborne to be actionable and goes so fаr as to question whether the trial court even considered the Bureau of Workers’ Compensation opinion as to the existence of airborne crystalline silica in the first place. Without the inadmissible statements from the report, however, the only evidence presented in the recоrd establishes the presence of above-normal levels of crystalline silica in the building following NEO HVAC‘s work.
{¶ 15} New Moon‘s expert‘s opinion, standing alone, creates a triable issue of fact even if the Board of Workers’ Compensation‘s conclusion is considered. According to the evidenсe presented in the record, NEO HVAC‘s work spread what is considered a known carcinogen around the interior of the building from which New Moon operated its retail store. New Moon‘s expert provided some evidence that the extent of the respirable concentration is unnecessary to his conclusions as to the dangers posed and damage caused by the spread of the carcinogen. Thus, according to the undisputed evidence within this record, the sole question is whether that exposure caused injury, and on that point, NEO HVAC provides no citation to any admissible pаrt of the record to demonstrate the absence of a genuine issue of
{¶ 16} Based on the foregoing, the trial court erred in granting both motions for summary judgment based on the limited arguments presented by NEO HVAC and Cerreta. The judgments entered agаinst New Moon are vacated, and this matter remanded for further proceedings.
The court finds there were reasonable grounds for this appeal.
It is ordered that appellants recover from appellees costs herein taxed.
It is ordered that a special mandate issuе out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, A.J., and EMANUELLA D. GROVES, J., CONCUR
Notes
If, in the course of everyday affairs, X receives a letter signed by Y, X assumes thаt Y wrote the letter. From an evidentiary point of view, the common law has not made that assumption. . . . [I]n litigation between X and Y, if X wishes to introduce into evidence a letter handwritten and signed by Y, X could “authenticate” the letter by direct testimony to the effect that he recognizes the handwriting and signaturе as that of Y because of previous correspondence between X and Y.Id.; see also State v. Hall, 2025-Ohio-3199, ¶ 245 (4th Dist.) (reviewing various methods of authenticating letters, including testimony establishing the declarant‘s knowledge of the writer‘s linguistic patterns or distinctive facts known only to the writer). NEO HVAC provides no authority in support of its argument that Dаwn Bartos‘s receipt or possession of the letter is sufficient authentication. Her deposition testimony was limited to establishing that she received the letter from the person she had spoken to at the Bureau of Workers’ Compensation who performed some form of testing. None of her testimony established that the writer drafted the disputed letter, only that it was presumed to have been signed by him. Because authentication is irrelevant to the outcome, this issue is simply noted.