[Cite as Coeurvie v. McGonigal, 2014-Ohio-4321.]


STATE OF OHIO                   )                       IN THE COURT OF APPEALS
                                )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

SHARRON COEURVIE                                        C.A. No.    27095

           Appellant

           v.                                           APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
RICHARD MCGONIGAL, et al.                               COURT OF COMMON PLEAS
                                                        COUNTY OF SUMMIT, OHIO
           Appellees                                    CASE No.   CV 2012 01 0487

                                DECISION AND JOURNAL ENTRY

Dated: September 30, 2014



           BELFANCE, Presiding Judge.

           {¶1}   Sharron Coeurvie appeals the trial court’s award of summary judgment in favor of

defendants Richard McGonigal, Wendy McGonigal, and Treasure Loft Properties, LLC

(collectively, “the Defendants”). For the reasons set forth below, we affirm in part1 and reverse

in part.

                                                   I.

           {¶2}   In March 2010, Ms. Coeurvie, while looking for a location to live and operate a

business, inspected a home owned by Treasure Loft Properties, a limited liability company

owned by Mr. and Mrs. McGonigal. The McGonigals were not present during Ms. Coeurvie’s

inspection of the home but were represented by Mr. McGonigal’s father. During Ms. Coeurvie’s

inspection, she observed mold in the bedroom closet, which was located behind the shower, and




           1
         Ms. Coeurvie has not challenged the trial court’s award of summary judgment on her
claim that the defendants violated Summit County Health Code sections 1668.02 and 1668.07.
                                                 2


brought it to the attention of Mr. McGonigal’s father. Mr. McGonigal’s father told Ms. Coeurvie

that the moisture she saw was typical in a home of that age.

       {¶3}    Ms. Coeurvie subsequently leased the property in April 2010 and lived there

sporadically until the fall of 2010 after which time she lived in the home on a full-time basis. On

February 19, 2011, Ms. Coeurvie e-mailed Mr. McGonigal to tell him that she was experiencing

moisture in a cupboard in her bedroom as well as the closet, causing her to have to wash the

clothes and blankets that she had been storing there. She e-mailed Mr. McGonigal again on

February 23, 2011, to ask him to do something about the mold in the house, asserting that she

would wake up with a sore throat and nasal congestion. She wrote another e-mail the next day

and told Mr. McGonigal that she could not sleep in the bedroom any longer due to the mold. Ms.

Coeurvie moved out of the house and eventually was diagnosed with medical conditions related

to exposure to mold.

       {¶4}    Ms. Coeurvie filed a complaint against the Defendants, asserting claims of

negligence, negligence per se, and a violation of Summit County Health Code sections 1668.02

and 1668.07. Following a period of discovery, the Defendants moved for summary judgment,

arguing that there was no genuine issue of material fact as to their lack of notice or constructive

notice of the mold. Ms. Coeurvie responded in opposition, and the Defendants replied. The trial

court granted the Defendants’ motion for summary judgment and dismissed all of Ms.

Coeurvie’s claims.

       {¶5}    Ms. Coeurvie has appealed, raising two assignments of error for our review.

                                               II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
       WHEN FACTUAL ISSUES EXISTED REGARDING NOTICE[.]
                                                 3


       {¶6}    In Ms. Coeurvie’s first assignment of error, she argues that the trial court erred in

granting summary judgment on her claims of negligence and negligence per se because there was

a genuine issue of material fact as to whether the Defendants had actual or constructive notice of

the mold. We agree.

       {¶7}    This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). “We apply the same standard as the trial court,

viewing the facts in the case in the light most favorable to the non-moving party and resolving

any doubt in favor of the non-moving party.” Garner v. Robart, 9th Dist. Summit No. 25427,

2011-Ohio-1519, ¶ 8.

       {¶8}    Pursuant to Civ.R. 56(C), summary judgment is appropriate when:

       (1) No genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a summary

judgment motion, the movant “bears the initial burden of demonstrating that there are no genuine

issues of material fact concerning an essential element of the opponent’s case.” (Emphasis sic.)

Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996).         If the movant satisfies this burden, the

nonmoving party “‘must set forth specific facts showing that there is a genuine issue for trial.’”

Id. at 293, quoting Civ.R. 56(E).

       {¶9}    Ms. Coeurvie pleaded both negligence and negligence per se causes of action.

“‘To prevail in a negligence action, the plaintiff must show (1) the existence of a duty, (2) a

breach of that duty, and (3) an injury proximately resulting from the breach.’” Hackett v. TJ

Maxx, 9th Dist. Summit No. 24978, 2010-Ohio-5824, ¶ 12, quoting Robinson v. Bates, 112 Ohio
                                                4


St.3d 17, 2006-Ohio-6362, ¶ 21. “At early common law, a landlord generally was immune from

tort liability for any injuries sustained by any person due to dangerous conditions on a leased

premises in the exclusive possession of a tenant, even if the dangerous condition existed at the

commencement of the tenancy.” Shump v. First Continental-Robinwood Assocs., 71 Ohio St.3d

414, 417 (1994).      However, there are exceptions to this general immunity, including

“concealment or failure to disclose known, nonobvious latent defects; defective premises held

open for public use; defective areas under the landlord’s control; failure to perform a covenant to

repair; breach of a statutory duty; and negligent performance of a contractual or statutory duty to

repair.” Id. at 418. “R.C. 5321.04 is one of the statutory exceptions to a landlord’s common-

law immunity and has expanded the duties a landlord owes to persons using rented residential

premises.” (Internal quotations and citations omitted.) Id. at 419.

       {¶10} R.C. 5321.04(A) provides, in pertinent part for this appeal, that “[a] landlord who

is a party to a rental agreement shall * * * (1) [c]omply with the requirements of all applicable

building, housing, health, and safety codes that materially affect health and safety[, and] (2)

[m]ake all repairs and do whatever is reasonably necessary to put and keep the premises in a fit

and habitable condition[.]”    R.C. 5321.04(A)(1)-(2).    “A landlord’s violation of the duties

imposed by R.C. 5321.04 (A)(1) or 5321.04(A)(2) constitutes negligence per se, but a landlord

will be excused from liability under either section if he neither knew nor should have known of

the factual circumstances that caused the violation.” (Emphasis omitted.) Sikora v. Wenzel, 88

Ohio St.3d 493 (2000), syllabus.

       {¶11} The trial court determined that there was no dispute of material fact that the

Defendants were unaware of the mold that caused Ms. Coeurvie’s injuries. In reaching its

determination, it relied on the affidavit of Mr. McGonigal in which he denied he or his wife had
                                                5


ever seen or had knowledge of mold in the home prior to Ms. Coeurvie’s February 23, 2011 e-

mail. However, while the summary judgment evidence2 may not establish that the Defendants

had actual knowledge of the toxic mold, Ms. Coeurvie’s deposition testimony3 and the report of

her expert Connie Morbach at least establish a dispute of fact as to whether the Defendants

should have known about the mold. See Sikora at syllabus.

       {¶12} Ms. Coeurvie testified during her deposition that, when she was viewing the

house, she noticed mold growing in the bedroom closet on the wall that abutted the shower in the

bathroom. She mentioned the mold to Mr. McGonigal’s father, who was showing her the house,

and he told her “‘It’s normal for places where there’s moisture like in the shower.’” While Ms.

Coeurvie did not request that the mold be remedied at that time, she did bring the existence of

mold to the attention of the Defendants’ representative who then, instead of investigating further,

assured her that the mold was normal.

       {¶13} Ms. Morbach opined in her report that her inspection of the home revealed long-

term water damage. According to Ms. Morbach, the water intrusions dated back decades. Ms.

Morbach also noted that there were indications that repairs had been attempted but that those


       2
          Ms. Coeurvie submitted a number of unauthenticated documents in support of her
motion in opposition to summary judgment that she now references in her appellate brief.
“Unauthenticated documents and affidavits not based on personal knowledge have no
evidentiary value and should not be considered by the court in deciding whether summary
judgment is appropriate. Nonetheless, this Court has held that unless the opposing party objects
to the admissibility of improper evidence, the trial court may, but need not consider the
evidence.” (Internal quotations and citations omitted.) Cheriki v. Black River Industries, Inc.,
9th Dist. Lorain No. 07CA009230, 2008-Ohio-2602, ¶ 6). However, the Defendants did object
to Ms. Coeurvie’s documents and, therefore, they cannot be considered. See id.
        3
          We note that Ms. Coeurvie’s deposition is not signed by the court reporter who took it.
See Civ.R. 30(F)(1)(a). However, both parties referred to portions of Ms. Coeurvie’s deposition,
and the trial court considered it in rendering its decision. See Wallner v. Thorne, 189 Ohio
App.3d 161, 2010-Ohio-2146, ¶ 18 (9th Dist.) (“The trial court retains discretion to either
consider or ignore improper Civ.R. 56 evidence, however, when there has not been any objection
to the evidence.”). Therefore, we consider it as well.
                                              6


attempted repairs did not remedy the water damage. Instead, the repairs essentially concealed

the evidence of the damage.

       {¶14} Ms. Morbach’s expert opinion that water damage had been continuous and long-

term, when viewed in the light most favorable to Ms. Coeurvie, would create the inference that

the Defendants were aware of the water damage and possibly even the intrusions themselves

given that they had owned the home for a number of years. See Waugh v. Lynch, 8th Dist.

Cuyahoga No. 100432, 2014-Ohio-1087, ¶ 10 (“In order to show that a landlord had constructive

notice, an injured plaintiff has the burden of showing that the defect in question must have

existed for such a length of time that the landlord, by exercising reasonable care, should have

discovered it.”) (Internal quotations, citations, and emphasis omitted.). Given this knowledge,

Ms. Coeurvie’s statement to Mr. McGonigal’s father, that she observed mold in the closet,

should have at least prompted some investigation in order to insure that the residence was in a

habitable condition. See R.C. 5321.04(A)(2) (“A landlord who is a party to a rental agreement

shall * * * [m]ake all repairs and do whatever is reasonably necessary to put and keep the

premises in a fit and habitable condition[.]”) (Emphasis added.). Thus, Ms. Coeurvie’s summary

judgment materials demonstrated that there was a material dispute as to whether the Defendants

should have known about the mold in this case.4 See Waugh at ¶ 10.

       {¶15} Accordingly, Ms. Coeurvie’s first assignment of error is sustained.




       4
         The Defendants incorrectly suggest that Ms. Coeurvie raises the issue of constructive
notice for the first time on appeal. While Ms. Coeurvie’s motion in opposition to summary
judgment is not elegantly drafted, it does contain facts and arguments concerning constructive
notice.
                                                 7


                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED WHEN IT ALLOWED APPELLEES TO
       SUBMIT NEW EVIDENCE AND EXPERT REPORTS ALONG WITH THEIR
       REPLY BRIEF IN CONTRAVENTION OF THE LOCAL RULES OF COURT
       AND FUNDAMENTAL FAIRNESS[.]

       {¶16} Ms. Coeurvie argues in her second assignment of error that the trial court

improperly permitted the Defendants to submit additional evidence with their reply brief.

However, the trial court did not grant the Defendants’ motion to submit additional evidence and

did not consider the evidence.      Furthermore, given our resolution of Ms. Coeurvie’s first

assignment of error, this assignment of error is moot. See App.R. 12(A)(1)(c). Accordingly, it is

overruled.

                                              III.

       {¶17} Ms. Coeurvie’s first assignment of error is sustained, and her second assignment

of error is overruled. The judgment of the Summit County Court of Common Pleas is reversed

to the extent it awarded summary judgment on Ms. Coeurvie’s negligence per se and negligence

claims, and the matter is remanded for further proceedings consistent with this opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                8


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellees.




                                                    EVE V. BELFANCE
                                                    FOR THE COURT



WHITMORE, J.
CONCURS.

MOORE, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

JOHN F. BURKE, III, Attorney at Law, for Appellant.

JAMES J. GUTBROD, Attorney at Law, for Appellees.
