[Cite as Georgetown of the Highlands v. Cleveland Div. of Water, 2016-Ohio-8039.]
                           STATE OF OHIO, CUYAHOGA COUNTY

                                 IN THE COURT OF APPEALS

                                        EIGHTH DISTRICT


GEORGETOWN OF THE HIGHLANDS )                             CASE NO. 102685
                              )
      PLAINTIFF-APPELLANT,    )
                              )
VS.                           )                           OPINION
                              )
CITY OF CLEVELAND DIVISION OF )
WATER, et al.,                )
                              )
      DEFENDANTS-APPELLEES.   )

CHARACTER OF PROCEEDINGS:                                 Civil Appeal from the Court of Common
                                                          Pleas of Cuyahoga County, Ohio
                                                          Case No. CV 13 809840

JUDGMENT:                                                 Affirmed.

APPEARANCES:

For Plaintiff-Appellant:                                  Atty. David M. Lynch
                                                          333 Babbitt Road
                                                          Suite 333
                                                          Euclid, Ohio 44123
For Defendants-Appellees:                                 Atty. John Mills
                                                          Assistant Director of Law
                                                          601 Lakeside Avenue
                                                          Room 106
                                                          Cleveland, Ohio 44114
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Seventh District Court Of Appeals
Sitting By Assignment

                                                          Dated: December 8, 2016
[Cite as Georgetown of the Highlands v. Cleveland Div. of Water, 2016-Ohio-8039.]
ROBB, J.


        {¶1}      Plaintiff-Appellant     Georgetown        of   the     Highlands     Condominium
Association appeals the decision of Cuyahoga County Common Pleas Court granting
summary judgment to Defendants-Appellees City of Cleveland (improperly named
City of Cleveland Division of Water). Two issues are presented in this case. The first
is whether the trial court’s interpretation of City of Cleveland Ordinance 535.30 (CCO
535.30) was correct.           The second issue is whether there is a genuine issue of
material fact as to how much Appellant owes for failing to pay the water bill. For the
reasons expressed below, the decision of the trial court is affirmed.
                                       Statement of the Case
        {¶2}      Appellant filed a complaint alleging Appellee breached a contract by
overcharging Appellant for water over a seven-year period, and that Appellee did not
individually bill each premise condominium owner as required by CCO 535.30(C).
6/28/13 Complaint; 4/3/14 Amended Complaint. Appellant also sought a Temporary
Restraining Order to prevent Appellee from turning off the water supply.
        {¶3}      Appellee filed a combined answer and counterclaim. In the answer,
Appellee denied the claims and asserted sovereign immunity, statute of limitations,
and standing as defenses.1 Appellee counterclaimed for outstanding water bills.
        {¶4}      In February 2014, Appellee moved for summary judgment asserting
Appellee was immune under R.C. Chapter 2744. It asserted the cause of action
brought, although labeled as a contract action, was not a contract claim, and the two
year statute of limitations in R.C. 2744.04(A) was applicable. Appellee also asserted
it was abiding by the mandates of CCO 535.30. Alternatively, Appellee contended
Appellant’s attempt to demand forced integration of its water system violated the
Ohio Constitution’s bar on extension of credit; it would cost Appellee $1.3 million to
update Appellant’s private system.2
        {¶5}      Appellant responded to Appellee’s motion for summary judgment
asserting Appellee was not immune because contract actions are not covered by the
Ohio Political Subdivision Tort Liability Act. However, even if the action was deemed


        1   Other defenses were asserted that are not at issue in this case.
        2   Appellee asserted other bases for summary judgment that are not at issue in this case.
                                                                                    -2-

to be a tort action, R.C. 2744.01(G)(2)(c) and R.C. 2744.02(B)(2) indicate Appellee
was not immune. Appellant further argued Appellee’s interpretation of CCO 535.30
was incorrect. It also asserted the cost to install individual meters would not be an
extension of credit. 4/3/14 Opposition Motion.
      {¶6}   Appellee replied to the motion in opposition. 4/11/14 Reply.
      {¶7}   The trial court granted Appellee’s summary judgment motion. The court
noted Appellant is comprised of 216 condominiums in Euclid, Ohio.               These
condominiums were originally a part of a complex constructed in the 1960s, which
included an apartment building and units now designated as condominiums. In the
1980s, the condominium part was split from the apartment building and converted
into individual units. The water distribution infrastructure, however, was not altered;
the property was constructed with one service line. There is a single water meter and
single shut-off value for the condominium development. The sole account for serving
the property is held in the Association’s name. Water is supplied by the City of
Cleveland under a contract with the City of Euclid.
      {¶8}   The trial court did not rule on the “standing, statute of limitations or
constitutionality” arguments raised in Appellee’s summary judgment motion. Instead,
the court focused on the plain language of CCO 535.30 and found it does not require
Appellee to bill each condominium unit separately. 5/27/14 J.E.
      {¶9}   Appellant appealed that decision.        6/23/14 NOA.   However, it was
dismissed for lack of a final appealable order because Appellee’s counterclaim had
not been resolved. 7/21/14 J.E.
      {¶10} Appellee then filed its second motion for summary judgment asserting it
was entitled to the amount owed on the delinquent water account. 9/19/14 Motion for
Summary Judgment. Attached to the motion was an affidavit from the Assistant
Administrator at the Department of Public Utilities’ Division of Water, Customer
Account Management Group. She avowed the account information for Appellant was
accurate, and there was a delinquent balance of $194,432.43. Laquania Graham
Affidavit. An affidavit from the interim Chief Financial Officer at the Department of
Public Utilities’ Division of Fiscal Control also avowed Appellant’s delinquent balance
was $194,432.43. Keith Cromer Affidavit. Meter test records accompanied by an
                                                                                     -3-

affidavit from the Superintendent of Distribution, Division of Water, Department of
Public Utilities were also attached to the motion for summary judgment.
       {¶11} Appellant responded to the second motion for summary judgment
asserting there was no balance sheet attached to Laquania Graham’s or Keith
Cromer’s affidavits. It further asserted the water usage documents attached to the
summary judgment motion showed bizarre discrepancies in water usage. It pointed
to the varying usages for the month of October for 2007 through 2014. Appellant
asserted material facts remained regarding consumption and meter accuracy.
11/11/14 Response to Appellee’s Second Summary Judgment Motion.
       {¶12} Appellee replied reasserting the bills were accurate, any variations in
water usage were attributable to estimated versus actual readings, changes in
occupancy, internal plumbing leaks, and seasonal use. 12/12/14 Reply; Laquania
Graham Affidavit. Also, Graham avowed the water decline from July 2013 to October
2013 was mirrored by increase from October 2013 to March 2014. Laquania Graham
Affidavit. Appellee also indicated any water leaks that were repaired occurred prior to
reaching the meter and, accordingly, were not billed to the customer. David Kaszian
Affidavit.
       {¶13} The trial court granted Appellee’s summary judgment motion; “Plaintiff
failed to offer competent evidence to create a genuine issue of material fact
concerning the outstanding and long term balance on its water account.” 2/3/15 J.E.
Judgment of $194,432.43 was entered for Appellee on its counterclaim. 2/3/15 J.E.
       {¶14} Appellant timely appealed the May 27, 2014 and February 3, 2015
judgment entries granting summary judgment for Appellee.
                                  Standard of Review
       {¶15} The assignments of error raised in this appeal address the trial court’s
grant of summary judgment for Appellee.         We review the trial court’s grant of
summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,
671 N.E.2d 241 (1996). Summary judgment is appropriate when: (1) there is no
genuine issue of material fact, (2) the moving party is entitled to judgment as a matter
of law, and (3) after construing the evidence most favorably for the party against
                                                                                  -4-

whom the motion is made, reasonable minds can reach only a conclusion that is
adverse to the nonmoving party. Civ.R. 56(C).
      {¶16} Once a moving party satisfies its burden under Civ.R. 56(C), the
nonmoving party may not rest upon the mere allegations or denials of the moving
party's pleadings; rather, it has a reciprocal burden of setting forth specific facts
demonstrating that there is a genuine triable issue. State ex rel. Zimmerman v.
Tompkins, 75 Ohio St.3d 447, 449, 663 N.E.2d 639 (1996).
                           First Assignment of Error
      “The trial court committed error in granting Cleveland’s first Motion for
Summary Judgment because weighing the facts and law in favor of Georgetown as
non-movant, the City of Cleveland was bound by its own ordinance prohibiting an up-
charge water rate for an individually owned parcel.”
      {¶17} The ordinance at issue provides:

      (a) All charges for water shall be made against the premises supplied
      or against the customer contracting for the service.

      (b) Upon special request, made by a customer accompanied by a list of
      premises owned by him or her, bills for water rent of all such premises
      shall be sent or delivered to such customer.

      (c) However, the amounts of water used by separate premises shall
      not be pooled or combined into one (1) charge, but separate charges
      shall be computed for separate premises.

CCO 535.30.
      {¶18} The trial court found this ordinance does not require Appellee to
individually bill each condominium unit:

      Plaintiffs maintain that this provision requires the City to bill each
      condominium unit separately. It does not. The plain language of the
      ordinance requires charges against the customer contracting for
      service. The customer who contracted for service in the instant case is
      Georgetown of the Highlands Condominium Association. Its bill has not
      been combined with any other account for any other premises owned
                                                                                        -5-

       by Georgetown of the Highlands Condominium Association as
       addressed in the ordinance taken as a whole.

       The developers of the complex constructed the property with one
       service line. As a result, there is one service account. Plaintiffs [sic]
       requested     relief,   that   the   Division   of   Water   reconfigure   the
       development’s private water distribution system to create separate
       service lines to each condominium unit or that the Division of Water
       exercise control over the private distribution system, is not consistent
       with law. * * *

       ***

       As the property currently exists, there is a single water meter and a
       single shut-off valve for the condominium development. Hence, there is
       one account that is properly billed as a single account subject to the
       rates applicable for water usage on that account.             Plaintiffs have
       presented no evidence that the rate applied was inconsistent with the
       water usage at the single meter.

5/27/14 J.E.
       {¶19} The court then cited to other City of Cleveland Ordinances that clearly
place the burden of installing services lines on the customer and establish the
standards for municipal distribution lines. 5/27/14 J.E.
       {¶20} Appellant argues the trial court incorrectly interpreted CCO 535.30. It
maintains the word “however” in division (c) modifies division (a). Accordingly, since
there are multiple premises in the condominium association, Appellee was required
to show on the bill individualized water consumption for each premises, rather than a
pooled amount for the entire condominium association.
       {¶21} Given the arguments, we are being asked to decide if the trial court’s
interpretation of the ordinance was correct. It has been explained, when a statute is
clear and unambiguous, it must be applied as written and no further interpretation is
necessary. State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74
Ohio St.3d 543, 545, 660 N.E.2d 463 (1996), citing State ex rel. Herman v.
                                                                                  -6-

Klopfleisch, 72 Ohio St.3d 581, 584, 651 N.E.2d 995 (1995). Thus, a reviewing court
may only interpret a statute where the words of the statute are ambiguous. State ex
rel. Celebrezze v. Bd. of Cty. Commrs., 32 Ohio St.3d 24, 27, 512 N.E.2d 332 (1987),
citing Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph one of the
syllabus. An ambiguity exists if the language is capable of more than one reasonable
interpretation. State ex rel. Toledo Edison Co. v. Clyde, 76 Ohio St.3d 508, 513, 668
N.E.2d 498 (1996).
      {¶22} The plain language of the statute supports the trial court’s
interpretation. Given the undisputed facts, the condominium association is one
premise. This property was constructed with one service line, one meter, one shut off
value, and therefore, one account. Appellant is the owner of the account; it is the
customer contracting for the service. There is no indication when the complex was
divided into condominium units in the 1980s, Appellant notified Appellee that the
customer was no longer a single premise, but rather a customer with multiple
premises requiring individual service lines and individualized billing.   Therefore,
Appellant’s contention that there are multiple premises because this apartment
complex was partly converted into condominium units and thus, each unit became a
premise, is unfounded; it does not correspond with the facts.
      {¶23} There is only one service line and only one account. This is not a
situation where the customer owns multiple premises with multiple service lines and
is having the supplier of water send only one bill.      This situation is akin to an
apartment building where there may be multiple units, but there is only one service
line, one water account, and the account is paid by the customer.
      {¶24} Therefore, the trial court’s interpretation of CCO 535.30 was correct.
We acknowledge Appellee asserts other arguments in support of the trial court’s
grant of summary judgment. Those arguments are standing, statute of limitations
and constitutionality; those arguments have been preserved for appeal by being
raised in the summary judgment motion. The trial court declined to address those
arguments and instead focused on the plain language of CCO 535.40. We likewise
do the same; due to our resolution of the plain language of CCO 535.30, Appellee’s
other arguments in support of summary judgment will not be addressed.
                                                                                      -7-

       {¶25} For the above stated reasons, this assignment of error has no merit.
The trial court’s grant of summary judgment for Appellee on Appellant’s complaint is
affirmed.
                            Second Assignment of Error
       “The trial court erred in granting Cleveland’s second Summary Judgment
Motion on its Counterclaim because material issues of fact were needed to be
determined at trial.”
       {¶26} Appellant contends there are genuine issues of material fact as to the
amount owed and accuracy of the usage. Appellant contends the evidence attached
to Appellee’s second summary judgment motion showed varying amounts of usage,
which called into question the accuracy of the meters. Appellee asserts there is no
genuine issue of material fact and it satisfied its burden.
       {¶27} Attached to the second motion for summary judgment are three
affidavits.   One is from Laquania Graham, the Assistant Administrator at the
Department of Public Utilities Division of Water, Customer Account Management
Group. 9/18/14 Graham Affidavit paragraph 1. Another is from Keith Cromer, the
interim Chief Financial Officer at the Department of Public Utilities’ Division of Fiscal
Control. 9/19/14 Cromer Affidavit paragraph 1. The last one is from David Kaszian,
the Superintendent of Distribution, Division of Water, Department of Public Utilities.
9/19/14 Kaszian Affidavit paragraph 1.
       {¶28} Graham and Cromer both avowed Appellant’s account currently had a
delinquent balance of $194,432.43 based on estimated and actual readings. 9/18/14
Graham Affidavit paragraph 7; 9/19/14 Cromer Affidavit paragraph 7. They both
attested the amount was accurate. 9/18/14 Graham Affidavit paragraph 6; 9/19/14
Cromer Affidavit paragraph 6. Both also averred they do not have “any reason to
believe these bills contain discrepancies or errors that would reduce” Appellant’s
outstanding bill.   9/18/14 Graham Affidavit paragraph 9; 9/19/14 Cromer Affidavit
paragraph 8. Both Graham and Cromer stated their review of the account indicated
the bills represent water actually used at the property. 9/18/14 Graham Affidavit
paragraph 11; 9/19/14 Cromer Affidavit paragraph 10. Attached to Graham’s affidavit
was the usage records.
                                                                                   -8-

      {¶29} Kaszian’s affidavit addressed meter tests performed on Appellant’s
meter. Attached to the affidavit were copies of the records of meter tests. 9/19/14
Kaszian Affidavit paragraph 5. In 2006 and 2009, the meter was tested and found to
be functioning properly.   9/19/14 Kaszian Affidavit paragraph 7-8.     In 2010, the
mechanical meter was replaced due to age, and the replacement meter was tested
and was functioning properly. 9/19/14 Kaszian Affidavit paragraph 9. In 2013, the
mechanical meter was replaced with a digital meter that was factory tested. 9/19/14
Kaszian Affidavit paragraph 10.
      {¶30} As stated above, Appellant responded and asserted the evidence
showed fluctuating amounts of consumption, which raised genuine issues of material
fact. Appellant responded with a reply and additional affidavits. Appellee explained
some of the fluctuation could be due to estimated versus actual readings. It is widely
known not all meter readings are actual, and when there are estimated readings
there is a fluctuation in the recorded usage. In her second affidavit, Graham alluded
to this fact. 12/12/14 Graham Affidavit paragraph 4-6. She also observed the decline
in water usage from July 2013 to October 2013 was mirrored by a similar increase in
usage from October 2013 to March 2014. 12/12/14 Graham Affidavit paragraph 7.
She further avowed, “Large commercial or residential properties such as Plaintiff’s
can see large fluctuations in metered water usage due to changes in occupancy,
internal plumbing leaks, season use (such as lawn care, swimming pools,
construction/renovation, etc.) or operation of the bypass valve around the meter.”
12/12/14 Graham Affidavit paragraph 9. She asserted, based on her experience,
readings from Appellant’s meter “do not demonstrate an uncommon fluctuation in
usage.” 12/12/14 Graham Affidavit paragraph 10.
      {¶31} Kaszian also provided a second affidavit.        He explained the 2010
replacement of the meter was due to a leak in the “brick vault.” 12/12/14 Kaszian
Affidavit paragraph 2. The water lost was not billed to Appellant because the leak
occurred before reaching the meter. 12/12/14 Kaszian Affidavit paragraph 3. He
also asserted that in 2014 the Division of Water notified Appellant of a leak in its
valves. 12/12/14 Kaszian Affidavit paragraph 8. The valves and any resulting leaks
                                                                                  -9-

were the responsibility of the customer and did not affect the accuracy of the meter.
12/12/14 Kaszian Affidavit paragraph 8.
      {¶32} Summary judgment was appropriately granted for Appellee. Other than
Appellant’s allegations, there is nothing to support its position that the meters are
inaccurate or water consumption was not accurately reported. In other words, there
is no evidence to dispute the averments of Appellee that Appellant owes $194,432.43
and the meter readings are accurate.
      {¶33} This assignment of error is without merit.      The trial court properly
granted summary judgment to Appellee on its counterclaim.
                                    Conclusion
      {¶34} Both assignments of error lack merit.      The trial court’s decision is
affirmed.




Donofrio, P.J., concurs.

Waite, J., concurs.

Seventh District Court Of Appeals
Sitting By Assignment



                                          APPROVED:

                                          _____________________________
                                          CAROL ANN ROBB, JUDGE
                                          SEVENTH DISTRICT COURT OF APPEALS
                                          SITTING BY ASSIGNMENT
