Papa's Homes, L.L.C. v. Maple Park Terrace Condominium Assn., Inc.

[Cite as Papa's Homes, L.L.C. v. Maple Park Terrace Condominium Assn., Inc., 2020-Ohio-5621.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

PAPA’S HOMES, L.L.C., :

Plaintiff-Appellant, :
No. 109298
v. :

MAPLE PARK TERRACE :
CONDOMINIUM ASSOCIATION, INC.,

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 10, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-904652

Appearances:

Michael Westerhaus, for appellant.

Ott & Associates Co., L.P.A., Steven M. Ott, and Lindsey A.
Wrubel, for appellee.

SEAN C. GALLAGHER, J.:

Papa’s Homes, L.L.C., appeals the judgment entered in favor of Maple

Park Terrace Condominium Association, Inc., upon a motion for summary

judgment. For the following reasons, we affirm.
 Maple Park is incorporated under R.C. Chapter 5311 to administer the

property known as Maple Park Terrace Condominium Unit Owners Association,

Inc. The corporation maintains a building containing condominium units and the

attached common areas and structures associated therewith. Papa’s Homes owns

one of the units within the complex. According to Papa’s Homes, a water leak

originating from above caused damage to Papa’s Homes’ interior structure — in its

presuit written communications with Maple Park, it was specified that the water

caused damage to the floor and ceiling of Papa’s Homes’ unit. Papa’s Homes claims

that the ceiling and flooring are part of the common structure under the control and

maintenance of Maple Park and that unit owners are only responsible for the

fixtures and interior space of the unit. In response to Papa’s Homes’ request for the

association to remediate the damage, Maple Park sought clarification on the cause

of the damage, stating that it would be responsible to fix any water intrusion caused

by its maintenance responsibility that caused damage to what Maple Park

considered to be Papa’s Homes’ property, but if the source of the water damage was

a leak from another unit’s fixtures or utilities, that party would bear responsibility.

Papa’s Homes has never provided information as to the source of the water

intrusion.

After the unsuccessful attempt to have Maple Park cover the costs to

repair its interior ceiling and floor, and the accompanying mold, Papa’s Homes

unilaterally initiated an insurance claim against Maple Park’s insurance policy,

despite being told only the board of directors for the association could take that step.
Although the insurance provider remitted a check based on Papa’s Homes’ claim,

the check was payable to Maple Park as the policy holder. Papa’s Homes forwarded

the check to Maple Park in the hopes of having the proceeds distributed.

Maple Park returned the check to the insurance company, stating that

no claim was properly instituted since only representatives for Maple Park can

initiate a claim against that policy. Maple Park further notified Papa’s Homes that

any request to file a claim against the association’s insurance policy would be

declined unless documentation was provided demonstrating that the association

was responsible for the cause of the water intrusion, again based on the presumption

that the damage was caused to portions of the unit under the owner’s maintenance

and repair responsibility. Maple Park further cited Article X, Provision B of the

Declaration of Condominium Ownership for Maple Park Terrace (“Declaration”),

which provides that each owner of a condominium unit is responsible for

maintaining, repairing, or replacing at his own costs all portions of the family unit,

all internal installations and fixtures, “all windows and doors of his Family Unit and

all associated structures and fixtures therein, which are appurtenances to the family

unit.” Id.

According to Papa’s Homes, the unit “consists of all of the space

enclosed and bounded by the perimeter walls, floors and ceiling of each such unit,

and shall include all fixtures within such boundaries of each such Unit, which serve
such Unit only.”1 Papa’s Homes claims that the floor and ceiling damage on the

interior of its unit is outside the scope of how the family unit is defined, and

therefore, it is responsible only for the interior space between the specified

boundaries, but not the boundary itself. The logical conclusion from Papa’s Homes’

interpretation is that every unit owner in Maple Park would necessarily be required

to seek permission to “make alterations” to the interior walls, ceiling, or floor within

the interior of the family unit before any alteration could take place (such as

replacing flooring material or installed carpeting) under Article X, Provision B(6).

That provision provides that no owner is permitted to “make any alterations in the

portions of the Family Unit or the building which are to be maintained by [Maple

Park] * * * without first obtaining written consent of the Managers.” Id. There is no

evidence of such a requirement. In fact, the Declaration appears to contemplate that

the “boundary” is included within the definition of the family unit. Under Article X,

Provision B(4), a unit owner may not paint, decorate, or change the appearance of

any portion of the building not “within the walls” of the family unit — suggesting

that the walls within the family unit are considered to be part of the family unit and

1 Although it appears that Schedule 2 attached to the Declaration, which contains
the definition of “Family Unit,” is not part of the appellate record, Maple Park has not
objected to this court’s consideration of the definition under the de novo review of the
trial court’s Civ.R. 56 determination. LTF 55 Properties v. Charter Oak Fire Ins. Co., 8th
Dist. Cuyahoga No. 108956, 2020-Ohio-4294, ¶ 34 (the failure to otherwise object to
improperly admitted evidence submitted by a party in consideration of a motion for
summary judgment waives any error in considering that evidence under Civ.R. 56(C)),
quoting Citizens Bank, N.A. v. Richer, 8th Dist. Cuyahoga No. 107744, 2019-Ohio-2740,
¶ 32, and Stegawski v. Cleveland Anesthesia Group, Inc., 37 Ohio App.3d 78, 83, 523
N.E.2d 902 (8th Dist.1987).
thus exempted from the requirement to seek permission to make alterations to the

portions of the building that are to be maintained by Maple Park.

Nevertheless, after no evidence implicating the condominium

association’s maintenance of the building’s structure or common areas was

produced, Maple Park notified Papa’s Homes of its belief that the upstairs unit

owner experienced a leak in a toilet causing the water intrusion into Papa’s Homes’

unit, and because Maple Park was not responsible for causing the water damage or

for the maintenance of the interior floor and ceiling, the association’s insurance

policy was not applicable. Maple Park again offered Papa’s Homes the opportunity

to demonstrate that the water intrusion was the responsibility of the association.2

Papa’s Homes initiated a lawsuit against Maple Park seeking

reimbursement for the cost to remediate the water damage to the interior structure

of its unit, claiming that such damage was considered to the common area for which

the condominium association was responsible. During the pretrial proceedings,

Maple Park filed a motion for summary judgment under Civ.R. 56, claiming that

there was no evidence that the leak was caused by anything related to a utility or

structure that fell under Maple Park’s obligation to maintain. According to Maple

2 There is no evidence in the record demonstrating the actual source of the water
intrusion. Any discussion as to that source appears only in Papa’s Homes and Maple
Park’s correspondence attached to the affidavit of Maple Park’s property manager, in
which Maple Park iterated its belief that the water damage emanated from a leaky toilet
in another unit. On this point, for the purposes of this appeal, the parties primarily rely
on the allegation in the complaint that Papa’s Homes suffered water damage “apparently
from the Unit above, to the interior of [its] unit.” Maple Park denied that allegation in its
answer.
Park, Papa’s Homes’ recourse was to seek damages from the neighbor from where

the water intrusion originated or to institute an insurance claim with its own policy

provider. Papa’s Homes responded that the interior structure, its flooring and

ceiling, damaged by the water leak was the responsibility of the condominium

association under the express terms of the Declaration and that it was not required

to prove its claim within the summary judgment proceedings. Papa’s Homes

provided no evidence in support of its brief in opposition to the summary judgment

but, instead, relied on the allegations in the complaint as a basis to state the

existence of a genuine issue of material fact with respect to the source of the water

intrusion and the extent of the interior damage. The trial court granted judgment in

favor of Maple Park based on the undisputed evidence presented through its

affidavits and accompanying documentary evidence.3 See, e.g., Maddy v.

Honeywell Internatl. Inc., 8th Dist. Cuyahoga Nos. 108698 and 109066, 2020-

Ohio-3969, ¶ 71 (concluding that documents may be introduced as evidentiary

material under Civ.R. 56(E) through a properly framed affidavit); Natl. Collegiate

Student Loan Trust 2005-3 v. Demers, 2d Dist. Clark No. 2018-CA-93, 2019-Ohio-

1475, ¶ 16 (same).

Appellate review of summary judgment is de novo, governed by the

standards set forth in Civ.R. 56. Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-

3 Although the ruling granted judgment in favor of Maple Park upon the claims in
the complaint, the trial court found issues of material fact with respect to Maple Park’s
compulsory counterclaims. Those counterclaims were eventually dismissed, terminating
all claims as between all parties in the action.
8374, 75 N.E.3d 161, ¶ 14. Summary judgment is appropriate only when “[1] no

genuine issue of material fact remains to be litigated, [2] the moving party is entitled

to judgment as a matter of law, and [3] viewing the evidence in the light most

favorable to the nonmoving party, reasonable minds can reach a conclusion only in

favor of the moving party.” Id., citing M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65,

2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12. Once the moving party has satisfied its

initial burden of identifying specific facts in the record that demonstrate an

entitlement to summary judgment under Civ.R. 56, the nonmoving party has a

reciprocal burden to set forth specific facts showing there is a genuine issue for trial.

Crenshaw v. Cleveland Law Dept., 8th Dist. Cuyahoga No. 108519, 2020-Ohio-921,

¶ 33, citing Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d

264.

Under the sole assignment of error, Papa’s Homes claims (1) that the

trial court erred in granting summary judgment because a plaintiff has no burden to

prove its case in a complaint under Civ.R. 8(A), which only requires a short and plain

statement of a claim for relief; and (2) that the trial court erred in concluding that

Papa’s Homes was responsible for the cost to repair the interior structure of the unit

because under the terms of the Declaration a unit owner is only responsible for the

interior space of the unit, between the walls and ceiling, but not the wall or ceiling

itself. Neither claim has merit.

Although it is true that a short and plain statement of a claim under

Civ.R. 8 should survive a motion to dismiss under Civ.R. 12, such a conclusion is
irrelevant to the current proceedings, which proceeded under Civ.R. 56. Under the

latter rule, summary judgment “shall be” entered “if the pleadings, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of evidence,

and written stipulations of fact” demonstrate that there are no genuine issues of

material fact and “the moving party is entitled to judgment as a matter of law.”

Civ.R. 56(C). Further, when a moving party properly supports its motion for

summary judgment, “an adverse party may not rest upon the mere allegations or

denials of his pleadings, but his response, by affidavit or as otherwise provided in

this rule, must set forth specific facts showing that there is a genuine issue for trial.”

Civ.R. 56(E); Dresher at 293.

In this case, Papa’s Homes alleged that a water leak caused damage

to the interior structure of its unit. Maple Park provided an affidavit from

representatives of the condominium association, which authenticated the

communications it received from Papa’s Homes stating their belief, in part based on

Papa’s Homes’ representation, that the cause of the damage to the Papa’s Homes

unit originated from the upstairs neighbor. After the damage occurred, Papa’s

Homes sent a letter documenting that the floor and ceiling in its unit had been

damaged. Further, through the same affidavits, Maple Park authenticated the

Declaration that set forth the unit owner’s responsibility to make repairs to all

portions of the unit, including the doors and windows and all structures and fixtures

that are appurtenances to the family unit.
 Under Article X, Provision B of the Declaration, the unit owner is

responsible “to maintain and repair all windows and doors of his Family Unit and of

all associated structures and fixtures therein, which are appurtenances to his Family

Unit.” Although it would be tempting to narrowly construe that provision in this

appeal so that “all associated structures” merely modified the obligation to repair

the windows and doors, such an interpretation would effectively obviate the

remaining portions of that clause that expressly refer to all structures and fixtures

“therein, which are appurtenances to the family unit.” The phrase “structures and

fixtures therein” must necessarily be considered as referencing the family unit, and

not just the windows and doors. “Appurtenances” is a broadly defined term of art.

See, e.g., Terry v. Kellstone, Inc., 6th Dist. Erie No. E-12-061, 2013-Ohio-4419, ¶ 34,

quoting Black’s Law Dictionary 118 (9th Ed.2009). “An appurtenance is defined as

‘something that belongs or is attached to something else.’” Id. And further, “[t]he

Dictionary of Real Estate Appraisal, at 127, defines ‘fixture’ as: ‘An article that was

once personal property but has since been installed or attached to the land or

building in a rather permanent manner, regarded in law as part of the real estate.’”

Litton Sys. v. Tracy, 88 Ohio St.3d 568, 572, 2000-Ohio-427, 728 N.E.2d 389.

Papa’s Homes has not asked for a narrow interpretation of that provision and

provides no analysis with respect to whether the floor or ceiling is contemplated

under the broader definitions. App.R. 16(A)(7). In relying on the section, Maple

Park necessarily presumes that the ceiling and floor are covered thereunder.
 Thus, the more pertinent question, largely left unanswered by Papa’s

Homes, is whether the floor and ceiling alleged to have been damaged would be

considered part of the unit owner’s responsibility under the phrase “all associated

structures and fixtures therein, which are appurtenances to the family unit” or

whether another provision within the Declaration controls the outcome. In light of

the fact that Maple Park in part relied on Article X, Provision B, in support of

summary judgment, the burden shifted to Papa’s Homes to demonstrate an

ambiguity in the contractual language or evidence upon which it could be concluded

that a genuine issue of fact existed for trial as to whether the damage by the water

intrusion to the ceiling and flooring was Maple Park’s responsibility.

Thus, under Civ.R. 56, Papa’s Homes bore the burden to

demonstrate, with evidence contemplated under that rule, that a genuine issue of

material fact existed for trial or that the terms of the Declaration were susceptible to

multiple interpretations necessitating resolution by the trier of fact. Either way,

Papa’s Homes cannot rely on the allegations in the complaint to satisfy its reciprocal

burden. Civ.R. 56(E); Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264. In light of the

fact that Maple Park satisfied its burden of proof to demonstrate the absence of

genuine issues of material fact, the burden shifted to Papa’s Homes to present

conflicting evidence. Papa’s Homes’ reliance on the allegations in the complaint is

not sufficient to withstand the properly framed and supported motion for summary

judgment. There is no merit to the argument otherwise.
 And finally, Papa’s Homes has not identified any provision of the

Declaration to support its claim that the condominium association is responsible for

repairing damage to the interior structure or the floors and ceiling of the unit such

that the condominium association’s insurance policy, which covers damages to the

common areas for which the association is responsible, would be relevant. Papa’s

Homes argues that Maple Park’s own interpretation of the Declaration is not

relevant, but provides no source for its claim that the Declaration set forth the

condominium association’s responsibility to repair the interior structures of a unit,

including the ceiling and flooring, nor does Papa’s Homes provide a reasonable

interpretation of the Declaration to support its conclusion. App.R. 16(A)(7).

Instead, Papa’s Homes appears to argue that the contractual interpretation in this

case is a matter for trial, despite the lack of an argument demonstrating an

ambiguity in the terms of the Declaration.

If a contract is clear and unambiguous, then its interpretation is a

matter of law. Davis v. Loopco Industries, Inc., 66 Ohio St.3d 64, 66, 1993-Ohio-

195, 609 N.E.2d 144. Papa’s Homes has not demonstrated, let alone argued, that

the terms of Article X, Provision B, as read in conjunction with the definition of

“unit” it provided, are ambiguous. See, e.g., Koslowski v. Co-Moor Townhouse

Idlewood S. Condominium #5 Assn., 8th Dist. Cuyahoga No. 97508, 2012-Ohio-

3254, ¶ 11 (although the unit owner is responsible for all interior walling and flooring

including a subfloor slab, the association is responsible for the substrate that

supports the owner’s subfloor as a matter of law). As a result, the interpretation of
the Declaration is a matter of law and capable of resolution under Civ.R. 56, and the

trial court did not err by finding in favor of Maple Park as a matter of law.

In light of the limited arguments presented, we are unable to conclude

that that the ceiling and flooring damaged by the alleged water leak that originated

from the upstairs neighbor’s unit is the responsibility of the association or that the

trial court erred in finding the contractual language to be unambiguous. Papa’s

Homes has not demonstrated any ambiguity in the terms of the Declaration stating

that the unit owner is responsible for all costs to repair internal installations,

fixtures, windows, and doors, along with all associated structures and fixtures,

which are appurtenances to the family unit, and is also responsible for the cost to

repair all portions of the unit, defined as the space enclosed and “bounded by the

perimeter walls, floors and ceiling” of each such unit. The trial court did not err in

concluding that the association is entitled to judgment as a matter of law.

In light of the foregoing, we affirm.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue 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 Rule 27

of the Rules of Appellate Procedure.

___________________________________
SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR