Wiles v. MillerWiles v. Miller
Rendered on August 22, 2013
Plymale & Dingus, LLC, Ronald E. Plymale and Michael R. Guluzian, for appellant.
Joyce V. Kimbler, for appellee Richard J. Miller.
Beau K. Rymers, for appellees R. Mitchell Daniels and Denise Daniels.
Andrew J. Kielkopf and Leslie A. Albeit, for appellee The Patio Room Factory, Inc.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Adam Wiles (“appellant“), appeals from judgments of the Franklin County Court of Common Pleas granting motions for summary judgment filed by defendant-appellee, Richard J. Miller (“Miller“), and defendants-appellees, R. Mitchell Daniels and Denise R. Daniels (“the Daniels“), and a motion to dismiss filed by defendant-appellee, The Patio Room Factory, Inc. (“Patio Room“). Because we conclude that Miller and the Daniels were each entitled to judgment as a matter of law and that
{¶ 2} On February 21, 2010, appellant traveled with his fiancée to the home of her grandmother, Sandra Carpenter (“Carpenter“), located at 2300 Minnesota Avenue, Columbus, Ohio. Carpenter rented the home at 2300 Minnesota Avenue from Miller. Shortly after arriving at Carpenter‘s home, appellant went outside and sat under the carport adjacent to the house. While appellant was sitting under the carport, it became detached from the house and collapsed. Appellant suffered injuries as a result of the collapse, including fractured ribs, a fractured thoracic vertebrae, and paraplegia. The carport that collapsed onto appellant had been installed in March of 1999, after the prior carport was damaged by ice. At the time the carport was installed, the Daniels owned the property at 2300 Minnesota Avenue.
{¶ 3} In July 2011, appellant filed a lawsuit against Miller and the Daniels. During discovery, appellant learned that the Daniels contracted with Patio Room for installation of the carport. Appellant then filed a first amended complaint in December 2011, naming Miller, the Daniels, and Patio Room as defendants. Appellant later filed a second amended complaint, adding Susan Karsher as a defendant and alleging that she installed the carport under the direction and control of the Daniels or Patio Room.1 Patio Room filed a motion to dismiss, asserting that the second amended complaint failed to state a claim upon which relief could be granted. Miller and the Daniels each filed motions for summary judgment, arguing that there were no genuine issues of material fact as to appellant‘s claims against them and that they were entitled to judgment as a matter of law. In separate judgments, the trial court granted the motions for summary judgment filed by Miller and the Daniels and granted the motion to dismiss filed by Patio Room.
{¶ 4} Appellant appeals from the trial court‘s judgments, assigning six errors for this court‘s review:
- The trial court erred in adopting the Magistrate‘s Decision to stay discovery during the pendency of dispositive motions because it prevented the Appellant from obtaining and
introducing additional evidence necessary for his response to the Appellees[‘] dispositive motions. - The trial court erred in granting Appellee, Patio Room Factory‘s Motion to Dismiss because the Appellant has a valid cause of action against Patio Room Factory.
- The trial court erred in granting Appellees Daniels’ Motion for Summary Judgment because Appellees breached a duty owed to Appellant.
- The trial court erred in granting Appellee Miller‘s Motion for Summary Judgment because there is a genuine issue of material fact as to whether Appellee had notice of the defective condition on the premises.
- The trial court erred in granting Appellees Daniels’ and Appellee Miller[‘]s motions for Summary Judgment because there are questions of fact as to the apportionment of fault for the defective condition of the premises.
R.C. 2305.131 is unconstitutional both facially and as applied.
{¶ 5} We begin our analysis with appellant‘s fourth assignment of error, which relates to his claims against Miller, who owned the property at the time that the carport collapsed. Next, we will consider appellant‘s third assignment of error, which relates to his claims against the Daniels, who owned the property at the time the carport was installed. We will then turn to appellant‘s fifth assignment of error, which relates to his claims against both Miller and the Daniels. Then we will consider appellant‘s second and sixth assignments of error, which relate to his claims against Patio Room and assertions related to the relevant statute of repose. Finally, we will consider appellant‘s first assignment of error, which addresses an order from the magistrate providing for a stay of discovery.
{¶ 6} In his fourth assignment of error, appellant asserts that the trial court erred by granting summary judgment in favor of Miller because there was a genuine issue of material fact regarding whether Miller had notice of a defective condition in the carport. Appellant asserted claims against Miller for negligence, nuisance, breach of a covenant (or warranty) of habitability, and violations of duties under the landlord-tenant law. Each of these claims involved a common allegation that Miller knew or should have known of a
{¶ 7} We review a grant of summary judgment de novo. Capella III, L.L.C. v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶ 16 (10th Dist.), citing Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). “De novo appellate review means that the court of appeals independently reviews the record and affords no deference to the trial court‘s decision.” Holt v. State, 10th Dist. No. 10AP-214, 2010-Ohio-6529, ¶ 9 (internal citations omitted). Summary judgment is appropriate where “(1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) 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.” Capella III at ¶ 16, citing Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, ¶ 6. Therefore, we undertake an independent review to determine whether Miller was entitled to judgment as a matter of law on appellant‘s claims against him.
{¶ 8} Under Ohio‘s landlord-tenant law, a landlord is required to, inter alia, comply with the requirements of all applicable building and housing codes and to make all repairs necessary to keep the premises in a fit and habitable condition.
{¶ 9} In addition to his statutory landlord-tenant law claim, appellant asserted a common law negligence claim against Miller, arguing that Miller knew or should have known that there was a dangerous condition in the attachment of the carport to the house and acted negligently by failing to repair the dangerous condition. Appellant also claimed that the condition of the carport constituted a private nuisance. The type of nuisance claim appellant asserted in this case is based in negligence and, therefore, the allegations of nuisance and negligence merge for purposes of our analysis. See Hurier v. Ohio Dept. of Transp., 10th Dist. No. 01AP-1362, 2002-Ohio-4499, ¶ 21. In order to demonstrate that Miller was negligent, appellant must establish that Miller had notice of a problem with the carport because he could not have violated a duty to repair it if he did not know that a repair was needed. See, e.g., Hill v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP-265, 2012-Ohio-5304, ¶ 12-15 (in negligence action, claimaint failed to establish that the department of corrections had actual or constructive notice that an electrical box cover had been removed). The issue of notice is also implicit in appellant‘s claim for breach of the warranty of habitability. See, e.g., Chapman v. Titleist Club, LLC, 6th Dist. No. WD-06-038, 2006-Ohio-6460, ¶ 24 (“Chapman failed to comply with the notice requirement imposed upon a tenant seeking to recover pursuant to a claim of breach of warranty of habitability.“).
{¶ 10} We begin our analysis of the fourth assignment of error by addressing an evidentiary issue. In his memorandum in opposition to Miller‘s motion for summary judgment, appellant cited a report prepared by James Nickoli, who was hired to investigate the cause of the carport collapse.
{¶ 11} Miller asserted that he was entitled to summary judgment because he had no notice of any problem with the carport prior to the collapse and, therefore, could not have violated any duty to repair it. Miller presented an affidavit attesting that he did not own the property when the carport was constructed and was not present when it was constructed. He attested that he conducted annual inspections of the property and that, prior to the collapse, he never discovered any problems with the carport. Miller further stated that neither Carpenter, nor any other tenant, ever notified him of any problems with the carport. Miller also relied on an affidavit from Carpenter, in which she asserted that, prior to the collapse of the carport, she was not aware of any defects associated with it and never reported a problem with the carport to Miller.
{¶ 12} Appellant‘s memorandum in opposition to Miller‘s motion for summary judgment did not allege that Miller had actual notice of a defective condition in the carport prior to the collapse. Rather, appellant asserted that Miller had constructive notice of a defective condition. Appellant argued that, because Miller was a landscape architect and owned multiple rental properties, he had superior knowledge of building and construction. Appellant also claimed that, based on this superior knowledge, Miller had sufficient time and opportunity to discover the defective condition during his annual inspections of the property. Appellant also argued that Miller failed to take reasonable steps to determine whether the carport was constructed according to code, including failing to ascertain whether a building permit had been obtained for the construction of the carport.
{¶ 13} In a similar case, we affirmed summary judgment in favor of a landlord, concluding that the landlord was not required to hire a professional inspector to satisfy his duties under the landlord-tenant law and that there was no genuine issue of material fact that the landlord knew or should have known of a defect prior to the accident. Lilly v. Bradford Invest. Co., 10th Dist. No. 06AP-1227, 2007-Ohio-2791, ¶ 29-31. In Lilly, the
{¶ 14} On appeal, this court rejected Lilly‘s claim that the landlord had a duty under the landlord-tenant law to hire a professional home inspector to discover defects in the property. Id. at ¶ 29. We noted that the landlord testified that he was able to look at properties and make necessary repairs and that he saw no defect in the staircase prior to the accident. Further, we noted that both Lilly and her husband testified that they had not provided the landlord with any notice of a defect in the staircase prior to the accident. Id. at ¶ 30. Accordingly, there was no genuine issue of material fact as to whether the landlord knew or should have known of a defect in the staircase prior to the accident, and the landlord was entitled to judgment as a matter of law. Id. at ¶ 31.
{¶ 15} In this case, Miller presented evidence demonstrating that he had no actual notice of any defect in the carport, and appellant did not submit any evidence to rebut this assertion. Therefore, we consider whether there was any genuine issue of material fact as to whether Miller had constructive notice of any defect in the carport—i.e., whether he should have known that there was some defect. Appellant argued that Miller should have discovered the alleged defect in the carport based on his knowledge of and exposure to construction practices, his experience as an owner of multiple rental properties, and the fact that he conducted annual inspections of the property. However, appellant did not
{¶ 16} Accordingly, we overrule appellant‘s fourth assignment of error.
{¶ 17} Next, we turn to appellant‘s third assignment of error, in which appellant argues that the trial court erred by granting the Daniels’ motion for summary judgment because the Daniels breached a duty owed to appellant. The Daniels did not have a landlord-tenant relationship with Carpenter or appellant and did not own the property at the time that the carport collapsed. However, appellant argues that, because the Daniels owned the property and used it as a rental property at the time the carport was replaced, they owed a nondelegable duty of reasonable care to future buyers and users of the property.
{¶ 18} Appellant asserted claims for negligence and nuisance against the Daniels; as explained above, those claims merge for purposes of analysis in this appeal because the nuisance claim relies on a finding of negligence. Appellant first argues that the Daniels violated their statutory duty under
{¶ 19} Appellant argues that his case is analogous to two decisions from other courts of appeals that held former property owners liable for injuries occurring after they had sold the respective properties. In Robinson v. C & L Assoc., L.L.C., 188 Ohio App.3d 649, 2010-Ohio-3118 (2d Dist.), the Second District Court of Appeals held that a landlord‘s sale of a property did not extinguish all of its duties to make repairs under the landlord-tenant law. Id. at ¶ 33. The Eighth District Court of Appeals also ruled that a former property owner could be held liable in negligence for the collapse of a staircase that occurred after he sold the property. VanAtta v. Akers, 8th Dist. No. 82361, 2003-Ohio-6615, ¶ 43. Despite appellant‘s argument, we conclude that each of these cases is distinguishable from the present appeal.
{¶ 20} In Robinson, the injured party, Teressa Robinson (“Robinson“), leased an apartment in April 2006 from C & L Associates (“C&L“). Robinson at ¶ 2. On multiple occasions between May and November 2006, Robinson notified the apartment complex manager and the maintenance manager about problems with the oven door in her apartment and received assurances that it would be repaired. Id. at ¶ 3. In late October 2006, C&L sold the apartment complex to another company. Five days after the sale, Robinson was injured when she fell while trying to open the oven door. Id. at ¶ 4. The trial court granted summary judgment in favor of C&L on Robinson‘s claims for negligence and nuisance, but the Second District Court of Appeals reversed, holding that the sale of the property did not relieve C&L of its prior obligation to make repairs under the landlord-tenant law. Id. at ¶ 33.
{¶ 21} One key distinction between Robinson and the present case is that there was never any landlord-tenant relationship between the Daniels and Carpenter, of whom appellant was a social guest when the carport collapsed. The Daniels sold the property to Miller in 1999, and Carpenter began renting the property from Miller in 2005. By contrast, the tenant in Robinson initially rented her apartment from C&L. Another important difference is the fact that the injury in Robinson occurred less than a week after C&L sold the property; while, in this case, the Daniels sold the property more than ten
{¶ 22} In VanAtta, the former property owner constructed the staircase that subsequently collapsed. VanAtta at ¶ 12. The Eighth District Court of Appeals ruled that, because the former owner had taken on an extensive building project on his own, he put himself in the position of a contractor. Id. at ¶ 41. Thus, the court held he could be liable in negligence as a contractor, not based on his position as a former owner of the property. Id. at ¶ 41-42. The court was careful to specify that it did not intend for all improvement or repair projects undertaken by homeowners to subject them to liability. Id. at ¶ 41. By contrast, in the present case, the Daniels contracted with the Patio Room for installation of the new carport, and the Daniels did not perform any of the work themselves.
{¶ 23} The Daniels argue that this case is more analogous to the Eighth District Court of Appeals’ decision in Steele v. McNatt, 102 Ohio App.3d 558 (8th Dist.1995). In Steele, tenants brought an action for wrongful death of their son and personal injury to their daughter caused by a fire at their rental home. Id. at 560. The tenants argued that both the former owner of the property and the owner at the time of the fire were liable in negligence for failure to install smoke detectors. Id. at 562. The Eighth District Court of Appeals held that the former owners of the property were divested of all rights and obligations to the property on the date it was transferred to the new owners. Because the former owners did not hold title to or control over the property on the day of the fire, they could not be held liable for the injuries resulting from the fire. Id. Relying on Steele, the Daniels assert that because they sold the property prior to the carport collapse they had no duty to appellant. Under the circumstances in this case, because the Daniels sold the property more than ten years prior to the carport collapse and because there was no evidence that they had any notice of a problem with the carport when it was installed or at
{¶ 24} Appellant also argues that the Daniels violated their statutory duty under
{¶ 25} Even where negligence per se is established, however, a plaintiff still must prove proximate cause. Sikora at 496, citing Chambers v. St. Mary‘s School, 82 Ohio St.3d 563, 565 (1998). Assuming for purposes of analysis that the Daniels failed to comply with applicable building codes by failing to obtain a building permit or ensuring that Patio Room obtained a building permit and that they had actual or constructive notice of the failure to obtain a building permit, appellant must still demonstrate that the failure to obtain a building permit was the proximate cause of his injuries. Other courts of appeal have determined that the failure to obtain a building permit under similar circumstances was not the proximate cause of subsequent injuries. See, e.g., Fox v. Weimerskirch, 3d Dist. No. 5-95-14 (Nov. 29, 1995) (“[E]ven assuming defendant was negligent per se in failing to properly obtain a building permit, plaintiff has not established that such negligence was the proximate cause of plaintiffs’ injury.“); Gottfried v. Bacon, 3d Dist. No. 16-87-32 (Oct. 10, 1989) (“[A] failure to obtain a building permit, if such failure occurred, could not possibly be the proximate cause of the plaintiff‘s injury.“). Similarly, in this case, even if we were to conclude that the Daniels violated a statutory duty by not obtaining or ensuring that a building permit was obtained, the failure to secure a permit was not the proximate cause of the collapse of the carport.
{¶ 27} Accordingly, we overrule appellant‘s third assignment of error.
{¶ 28} In his fifth assignment of error, appellant argues that the issue of apportionment of liability between Miller and the Daniels for the defective condition in the carport was a question of fact and, therefore, summary judgment was improper. In our analysis of appellant‘s third and fourth assignments of error, we conclude that the trial court properly granted summary judgment in favor of both Miller and the Daniels because there were no genuine issues of material fact as to appellant‘s claims against them. Generally, a finding of liability is a prerequisite for apportionment of liability. See, e.g., O‘Connell v. Chesapeake & Ohio RR. Co., 58 Ohio St.3d 226, 235 (1991) (in adopting the “same juror” rule for determining which jurors may participate in determining the apportionment of liability, explaining that “the determination of causal negligence on the part of one party [is] a precondition to apportioning comparative fault to that party“). Because the trial court properly granted summary judgment in favor of both Miller and the Daniels, they were not liable, and there was no issue as to apportionment of liability between them.
{¶ 29} Accordingly, we overrule appellant‘s fifth assignment of error.
{¶ 30} Next, we turn to appellant‘s second and sixth assignments of error, which are related because appellant makes various assertions related to the applicable statute of repose. In his second assignment of error, appellant asserts that the trial court erred by granting Patio Room‘s motion to dismiss. In his sixth assignment of error, appellant argues that the relevant statute of repose is unconstitutional. We will consider each of these assignments of error in turn.
{¶ 32} Appellant argues that the trial court should have treated Patio Room‘s motion to dismiss as a motion for judgment on the pleadings because Patio Room answered appellant‘s complaint before filing the motion to dismiss. “A
{¶ 33} Under Ohio law, a plaintiff must prove the following elements to establish a fraud claim: (1) a representation or, where there is a duty to disclose, concealment of a fact, (2) the representation was material to the transaction, (3) the representation was
{¶ 34} In the second amended complaint, appellant asserted that the carport was installed when the Daniels owned the property, sometime between October 31, 1996 and August 26, 1999. He claimed that Patio Room made certain representations about the carport and that, if those representations had not been made, the Daniels would have either declined to have the carport installed by Patio Room or would have insisted on changes in the installation of the carport. Appellant asserted that he was injured when the carport collapsed on February 21, 2010. Appellant did not claim that Patio Room made any representations about the carport directly to him or that he was in any way a party to the transaction between the Daniels and Patio Room. Presuming that all factual allegations in the second amended complaint are true, and construing all reasonable inferences arising from the complaint in appellant‘s favor, it is clear that appellant‘s fraud claim against Patio Room is based on alleged misrepresentations made by Patio Room to the Daniels. Therefore, appellant has failed to state a valid claim for fraud. See Moses at ¶ 21.
{¶ 35} Appellant claims that the trial court erred in granting Patio Room‘s motion to dismiss because his fraud claim is not based on the common law definition of fraud. Appellant appears to argue that
{¶ 37} Initially, we note that the ten-year limitation under
{¶ 38} Accordingly, we overrule appellant‘s second assignment of error.
{¶ 39} In his sixth assignment of error, appellant asserts that
{¶ 40} Accordingly, appellant‘s sixth assignment of error is overruled.
{¶ 41} Finally, we turn to appellant‘s first assignment of error, in which he asserts that the trial court erred by adopting the magistrate‘s decision to stay discovery while dispositive motions were pending. Appellant argues that this stay of discovery prevented him from obtaining and introducing additional evidence necessary to respond to the appellees’ dispositive motions.
{¶ 42} “A trial court acts within its discretion when it grants a stay of discovery pending the resolution of a dispositive motion.” Thomson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-782, 2010-Ohio-416, ¶ 32. Generally, we review a trial court‘s adoption, denial, or modification of a magistrate‘s decision for an abuse of discretion.
{¶ 43} The magistrate issued an initial pre-trial order requiring appellant to file an amended complaint within 25 days of the order. The order further specified that depositions would commence following the filing of the amended complaint. The order also required appellant to respond to the Daniels’ motion for summary judgment by July 1, 2012. Following a status conference, the magistrate issued a second pre-trial order on May 14, 2012, finding that it was appropriate to stay discovery until the court was able to rule on pending dispositive motions. The same day, appellant filed a motion to reopen discovery, which the magistrate denied. Appellant filed objections to the second pre-trial order; the trial court overruled these objections and adopted the magistrate‘s decision denying the motion to reopen discovery.
{¶ 44} It appears that the magistrate‘s order staying discovery only affected appellant‘s response to the Daniels’ motion for summary judgment. Appellant had already filed his memorandum in opposition to Miller‘s motion for summary judgment before the magistrate issued the second pre-trial order staying discovery. Although appellant filed his memorandum in opposition to Patio Room‘s motion to dismiss after the magistrate issued the second pre-trial order, courts have concluded that no additional discovery is needed for a court to rule on a motion to dismiss or a motion for judgment on the pleadings. See State ex rel. Brantley v. Ghee, 83 Ohio St.3d 521, 522 (1998) (“[N]o additional discovery was necessary for the court of appeals to resolve appellees’ motion for judgment on the pleadings.“); Lindow v. N. Royalton, 104 Ohio App.3d 152, 159 (8th Dist.1995) (“The completion of discovery is not relevant to the granting of a motion to dismiss.“). Moreover, in his objections to the magistrate‘s second pre-trial order, appellant focused on the need for additional discovery to respond to the Daniels’ motion for summary judgment.
{¶ 45} The trial court granted the Daniels’ motion for summary judgment based on its conclusion that, as a matter of law, they did not owe appellant any legal duty that would support his claims for negligence and nuisance. In our analysis of the third assignment of error, we agreed with the trial court‘s conclusion. Because the Daniels, as
{¶ 46} Accordingly, we overrule appellant‘s first assignment of error.
{¶ 47} For the foregoing reasons, we overrule appellant‘s six assignments of error and affirm the judgments of the Franklin County Court of Common Pleas.
Judgments affirmed.
TYACK and McCORMAC, JJ., concur.
McCORMAC, J., retired, of the Tenth Appellate District, assigned to active duty under the authority of
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