         [Cite as Michnowicz v. Hines, 2012-Ohio-715.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



WILLIAM MICHNOWICZ,                              :       APPEAL NO. C-110048
                                                         TRIAL NO. A-0902904
        Plaintiff-Appellee,                      :

  vs.                                            :           O P I N I O N.

DANIEL J. HINES,                                 :

    Defendant-Third-Party-Plaintiff-             :
Appellant,
                                                 :
  vs.
                                                 :
ROGER WELLS, d.b.a. MIKE’S
CONSTRUCTION,                                    :

        Third-Party Defendant.                   :

                                                 :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed from is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: February 24, 2012


James W. Costin, for Plaintiff-Appellee,

Joyce V. Kimbler, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Judge.

        {¶1}      Defendant-appellant Daniel J. Hines appeals from a judgment of the

Hamilton County Court of Common Pleas directing a verdict for plaintiff-appellee

William Michnowicz in an action for damages caused after a water pipe in Hines’s

condominium unit ruptured. For the reasons that follow, we reverse the trial court’s

judgment.

                                  I. Background Facts

        {¶2}      Both Michnowicz and Hines owned condominium units at The

Residences at Summit View (“the condominium.”) On December 24, 2006, a water

pipe broke within Hines’s unit. The water pipe had travelled through a vanity to

Hines’s bathroom sink, and when it ruptured, water escaped to Hines’s floor and to

Michnowicz’s unit below, causing damage.

        {¶3}      The condominium instruments, specifically Article XI, Section 2 of

the condominium’s declaration, imposed upon Michnowicz and Hines, as unit

owners, the responsibility to “repair and maintain” their own units and the

components within their own units. Michnowicz pursued a claim against Hines for

damages under R.C. 5311.23, which provides, in relevant part, that “a * * * unit

owner * * * is liable in damages in a civil action for harm caused to any person * * *

by that individual’s failure to comply with any lawful provision of the condominium

instruments.” 1

        {¶4}      At trial, Michnowicz demonstrated that the ruptured section of the

water pipe had been a component of Hines’s unit, and that Hines had had the


1 Hines filed a third-party complaint for indemnification or contribution against Roger Wells,
d.b.a. Mike’s Construction, claiming that Wells had negligently installed the water pipe. The trial
court granted summary judgment to Wells after Wells demonstrated that he had not performed
any of the construction work and had merely been a member of a limited liability company, now
dissolved, that had performed conversion work for the owners of the apartment building.


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responsibility to maintain it under the condominium’s declaration. But Michnowicz

did not present any evidence concerning what had caused the water pipe to fail.

       {¶5}    Hines offered testimony from Mark Nichting, his insurance adjuster,

on the cause of the water pipe’s failure, as told to Nichting by Tony Elder, the

individual who had repaired the water pipe. Elder had died before the trial, and the

trial court sustained Michnowicz’s objection to the admission of this part of

Nichting’s testimony on hearsay grounds.

       {¶6}    Nichting was permitted to testify, however, that the water pipe had

been installed in an atypical arrangement, and that Hines could not have inspected

the water pipe inside the vanity cabinet without taking apart the cabinet because the

installer had glued a drawer shut. Hines corroborated this later testimony, and he

noted that he had no training in plumbing, suggesting that he would not have known,

upon inspection, if the plumbing had been installed erroneously.

       {¶7}    Hines also testified that he had purchased the unit after the building

had been converted from apartments to condominiums, and that he had had no

notice of any leaks in his unit while living there. But Hines admitted that he had

never inspected the plumbing connected to his half-bath sink.

       {¶8}    Both parties moved for a directed verdict at the close of all evidence.

According to Michnowicz, he had conclusively established Hines’s liability by

demonstrating that Hines had had the responsibility to maintain the water pipe, that

the water pipe had ruptured, and that he had been damaged as a result.

       {¶9}    Hines countered by arguing in part that he owed Michnowicz only the

duty of ordinary care to maintain the water pipe and that Michnowicz had failed to

demonstrate a breach of this duty and proximate cause. The trial court granted




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Michnowicz’s motion for a directed verdict and awarded him damages of $20,000.

This appeal followed.

                                    II. Liability

       {¶10}   In his first assignment of error, Hines argues that the trial court erred

by directing a verdict in favor of Michnowicz on the issue of liability. The trial court

may grant a motion for a directed verdict only if, after construing the evidence in the

light most favorable to the party against whom the motion is directed, “reasonable

minds could come to but one conclusion upon the evidence submitted and that

conclusion is adverse to such party.” Civ.R. 50(A)(4). This reasonable-minds test

requires the court “to discern only whether there exists any evidence of substantive

probative value that favors the position of the nonmoving party.” Goodyear Tire &

Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769

N.E.2d 835, ¶ 3.

       {¶11}   The trial court’s decision to grant a motion for a directed verdict

involves a question of law. Accordingly, our review is de novo. Id. at ¶ 4.

       {¶12}   Initially, Hines complains that the trial court did not clearly state the

grounds for the directed verdict. Thus, before we can address whether the evidence

met the standard for a directed verdict, we must first determine the theory that

Michnowicz prevailed upon.

       {¶13}   Michnowicz contends that the trial court found in his favor because it

determined, after reviewing all the evidence, “that [Hines] was in ‘exclusive control’

of his unit, it was [Hines’s] duty to maintain the components of his unit, the water

pipe in [Hines’s] unit failed, and [Michnowicz] was damaged as a result.” He also

states that Hines had a “duty to maintain the water system so that it [did] not cause

damage whether the failure results from lack of maintenance or inspection or the



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actions of a third party.” Although Michnowicz does not use the words “absolute

liability” to characterize the standard underlying his theory of recovery, we can only

conclude that “absolute liability” is what he means.

       {¶14}   Moreover, we conclude that the trial court imposed absolute liability

based on the failure of the water pipe and that the court did not impose liability

based on Hines’s violation of the duty to maintain, as set forth in the declaration. In

explaining its decision to remove the case from the jury, the court stated the

following:

               Basically, in this particular case, the plaintiff is a sitting

               duck. * * * [I]t is only fair that the upper dominant

               landowner who had exclusive control over this situation,

               within his own unit, within his own vanity, and the fact

               that it is, shall I say glued to the pipes, is of * * * no

               concern. His testimony was that yes with a hammer, I

               could have taken this vanity out. I can see my own

               pipes. It’s his responsibility. He could have taken it off.

               And he, the defendant * * * will be held liable for any

               and all damages caused by the flow of water.

       {¶15}   We are unable to agree, however, with Michnowicz and the trial court,

that the condominium association’s instruments and R.C. 5311.23(A) give rise to a

cause of action in absolute liability against a condominium unit owner for property

damage to other units caused by the failure of a component for which the owner had

the responsibility to maintain.

                             A. Ohio’s Condominium Act




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       {¶16}    Our analysis of this issue begins with a short summary of the

condominium as a form of real property. Condominium ownership is a statutory

creation.   See R.C. Chapter 5311 (codifying Ohio’s Condominium Act and its

amendments).

       {¶17}    Under the unique condominium “regime,” real estate is divided into

separate spaces, known as “units.” Kuehnle and Williams, Ohio Condomium Law,

Section 1:1, at 1 (2011); see also R.C. 5311.03. The owners of the units also own an

undivided interest as tenants in common with all of the other owners of units in the

“common elements,” which is generally comprised of the remainder of the property

that is not within one of the units. Id.

       {¶18}    All owners of units in a condominium property belong to the

condominium’s “[u]nit owners association.” R.C. 5311.01(DD). This association

“administers” the condominium property.             Id.; R.C. 5311.08(A)(1).      The

condominium instruments set forth the plan for condominium ownership of the

property, including defining the unit and its components and the maintenance and

repair responsibilities of the association and the unit owner. See R.C. 5311.01(M).

       {¶19}    The statutory section that Michnowicz relies upon in his claim for

relief, R.C. 5311.23(A), provides that “a declarant, developer, agent, or unit owner

or any person entitled to occupy a unit is liable in damages in a civil action for

harm caused to any person or to the unit owners association by that

individual’s failure to comply with any lawful provision of the

condominium instruments.” (Emphasis added.) Subdivisions (B) and (C) of

R.C. 5311.23 generally provide a statutory right to a declaratory judgment action to

determine legal rights under the condominium instruments or to obtain an

injunction, and a statutory right to a class action by unit owners. Subdivision (D)



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                     OHIO FIRST DISTRICT COURT OF APPEALS



authorizes the unit owners association to bring an action under the section “in its

own name, in the name of the board of directors, or in the name of the association’s

managing agent.”

                       B. The Condominium’s Instruments

       {¶20}   “The Declaration for the Residences at Summit View Condominium”

is part of the condominium’s instruments. See R.C. 5311.01(M). Article XI of that

declaration reads as follows:

               Section 1. Association Responsibility. The Association

               shall maintain and repair the Common Areas, including

               and not limited to utility facilities serving more than one

               (1) Unit, utility lines in the Common Areas, lawns,

               shrubs, trees, walkways, the balconies, and all the

               buildings which are part of the Common Areas,

               provided, however, that the Association shall not be

               required to perform normal cleaning of the individual

               unit balconies.

               Section 2. Individual Responsibility. Each Unit Owner

               shall repair and maintain the Unit or Units, and all

               components thereof, owned by that Unit Owner, and the

               balconies appurtenant to a Unit to the extent not the

               obligation of the Association.     Without limiting the

               generality of the foregoing, this repair and maintenance

               responsibility shall include repair and maintenance of

               all windows, screens and doors, including the frames,

               sashes and jambs, and the hardware therefor; and



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                  cleaning of the balconies. In the event a Unit Owner

                  shall fail to keep such balcony area clean, or in the event

                  the need for maintenance or repair of any part of the

                  Common Areas or Limited Common Areas is caused by

                  the negligent or intentional act of any Unit Owner or

                  Occupant, and the cost of repair is not covered by

                  insurance, the cost of such maintenance and repair shall

                  constitute a Special Individual Unit Assessment, as

                  hereinafter defined, on the Unit owned by such Unit

                  Owner. The determination that such maintenance or

                  repair is necessary, or has been so caused, shall be made

                  by the Board.


       {¶21}      Upon our review, we hold that the trial court erred by interpreting

Article XI, Section 2 and R.C. 5311.23(A) to impose on Hines absolute liability for

any damages to Michnowicz caused by the failure of a component in Hines’s unit that

Hines had the responsibility to maintain. Article XI, Section 2 merely sets forth the

responsibility of the owner to maintain the unit and its components, but it does not

define the scope of the duty to maintain.

       {¶22}      And R.C. 5311.23(A) simply subjects unit owners to statutory liability

to others for damages caused by the failure to comply with a provision of the

association’s instruments.        The trial court effectively eliminated this element of

proximate cause. Further, R.C. 5311.23(A) does not define a standard of care for the

underlying violation of a provision, and we do not believe the General Assembly

intended it to.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶23}     Thus, to prevail on his cause of action under R.C. 5311.23(A),

Michnowicz must establish (1) Hines’s responsibility to maintain the water pipe

under Article XI, Section 2 of the condominium declaration, (2) Hines’s failure “to

maintain” it, as contemplated by this provision, (3) and an injury proximately caused

by this failure to comply with this provision.

       {¶24}     The trial court erred by applying an absolute liability standard. And,

even if the trial court had applied the correct rule, we hold that the evidence would

not have support a directed verdict in favor of Michnowicz. See Civ.R. 50(A)(4).

Accordingly, we sustain the first assignment of error.

                                    III. Damages

       {¶25}     In his second assignment of error, Hines argues that the trial court

applied the wrong measure of damages.        This assignment of error is rendered moot

by our disposition of the first assignment of error, and we decline to address it. See

App.R. 12(A)(1)(c).

       {¶26}     Accordingly, we reverse the judgment of the trial court, and we

remand the case for further proceedings in accordance with law and consistent with

this decision.

                                                 Judgment reversed and cause remanded.

HENDON, P.J., and FISCHER, J., concur.


Please note:

        The court has recorded its own entry on the date of the release of this decision.




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