The opinion
[Cite as Griffey v. Riverside Commons Condominium Unit Owners' Assn., 2020-Ohio-4363.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Patricia Griffey, et al., :
Plaintiffs-Appellants, :
No. 19AP-681
v. : (C.P.C. No. 18CV-4098)
Riverside Commons Condominium : (REGULAR CALENDAR)
Unit Owners' Association, et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on September 8, 2020
On brief: Mazanec, Raskin & Ryder Co., L.P.A.,
Doug Holthus, and Cara M. Wright, for appellants. Argued:
Cara M. Wright.
On brief: Gallagher, Gams, Tallan, Barnes & Littrell, LLP,
M. Jason Founds, and Robert J. Kidd, for appellees. Argued:
Robert J. Kidd.
APPEAL from the Franklin County Court of Common Pleas
NELSON, J.
{¶ 1} Some months after defective gutters and downspouts for their unit at the
Riverside Commons Condos were fixed, James and Patricia Griffey sued the Condominium
Unit Owners' Association over claimed foundation and siding damages they said had arisen
from the gutter problems. See, e.g., Appellants' Brief at 7-8 ("There is no dispute that
repairs were * * * undertaken by the Association to correct the deficiencies in the gutters
and downspouts. However, the significant damage resulting from the improperly installed
gutters and downspouts, such as the damage related to the water intrusion and damage to
the block foundation wall, were not repaired by the Association."). After a bench trial, the
trial court ruled against them, finding that "Plaintiffs failed to prove any resulting damages"
No. 19AP-681 2
from the now remedied gutter problem: "Notably, neither [the Griffeys' certified remodeler
who inspected the premises nor the Association's structural engineering expert] testified
that problems exist behind the siding and/or that the foundation will require repair."
Sept. 5, 2019 Decision Following Bench Trial at 3. The Griffeys establish no error with the
trial, and we will affirm the judgment of the trial court.
{¶ 2} Apparently when the gutters and downspouts were replaced following
weather damage in 2010, gutters of the wrong size were installed. The Griffeys made
various complaints, including in February of 2017 to condo management agent
representative Kandace Watkins (who was informed by Ms. Griffey, in their first contact
since Ms. Watkins began her work in June 2016, "that she was having a problem with her
gutter and she suspected some structural issues"). See Tr. at 101. In response, the
management agent had a gutter extender installed in March 2017. Id. at 101-02. That
repair proved ineffective. Asked at trial by the Griffey's counsel: "And so the board
undertook to put in new gutters with larger dimensions, correct?" Ms. Watkins answered,
"Correct." Id. at 93.
{¶ 3} The September 2017 gutter replacement followed recommendations for
replacement from both the Griffey's expert, Master Certified Remodeler Peter Robinson
(who visited in April 2017 and provided a May report), and the Association's structural
engineering expert, David Holtzapple (who followed up his July structural inspection with
an August 2017 letter). But whereas Mr. Robinson had noticed "dampness" and
"tremendous humidity" in a crawlspace and detected what he saw as signs of deterioration
to a foundation wall, see Tr. at 116-17, Mr. Holtzapple had reported that "[t]he crawlspace
was dry and did not smell damp," and that there were no structural problems with the
foundation, see id. at 268-70 and Def. Ex. B., Aug. 18, 2016 Holtzapple letter. Beyond the
gutter replacement, Mr. Holtzapple's report recommended no structural changes, and
Mr. Robinson's recommended that rear siding be removed and inspected for mold, rot, or
insect damage.
{¶ 4} The Griffeys sued the Association on May 16, 2018, alleging negligence,
breach of warranty, breach of fiduciary duty, and breach of contract. In due course, and
supported by affidavits from Mr. Robinson and Ms. Griffey, they filed a summary judgment
motion; the Association's opposition invoked Mr. Holtzapple's inspection and attached an
No. 19AP-681 3
affidavit from him authenticating his August 18, 2017 letter, along with an affidavit from
Ms. Watkins. The Griffeys in reply protested that the Association had not named those
witnesses within the deadlines specified by local rule or during discovery; they argued that
any testimony from Mr. Holtzapple or Ms. Watkins be excluded from consideration. Mar.
21, 2019 Reply at 1-2.
{¶ 5} The Association then sought leave to disclose its witnesses. Mar. 27, 2019
Motion for Leave to File Disclosure of Witnesses Out of Rule, Instanter. The Association
asserted that it had "prepared the Initial Disclosure of Witnesses for this case on October 1,
2018," but, "due to a clerical error, the disclosure was not filed with the Court"; the
Association's lawyer had realized the error only upon receiving the Griffeys' Reply. Id. at 2.
The Association argued that the untimely disclosure of Ms. Watkins and Mr. Holtzapple
would not unfairly prejudice the Griffeys because both witnesses were "well-known" to
Ms. Griffey. Id. She herself had "disclosed a representative of [the Association] in her
disclosure," and Ms. Watkins was the person with whom she "ha[d] communicated in
dealing with the Association [regarding] these issues." Id. Moreover, Mr. Holtzapple's
August 18, 2017 report had been "previously provided to the Plaintiff over a year and a half
[earlier] and discussed in correspondence between [the parties' counsel] as far back as
December 29, 2017 and as [recently] as December 28, 2018." Id. Trial was months away,
and the Association offered to "make the witnesses available for deposition forthwith." Id.
at 2-3.
{¶ 6} The Griffeys opposed the Association's motion for leave, saying it was
"patently false" that they had not been prejudiced because discovery had closed and they
had relied "upon the witnesses who had been disclosed and the discovery responses (or
really, the lack thereof)" in drafting the motion for summary judgment. Apr. 2, 2019
Plaintiffs' Combined Brief in Opposition at 3.
{¶ 7} The trial court promptly granted as "well taken" the motion for leave to
disclose witnesses. Apr. 4, 2019 Decision at 4. After considering the parties' competing
affidavits, the trial court denied the Griffeys' summary judgment motion because "a
material issue of fact remain[ed] as to whether and to what extent Plaintiffs ha[d] been
damaged by the improperly installed gutters and downspouts." Id.
No. 19AP-681 4
{¶ 8} Before trial, the Griffeys renewed their request that the trial court prevent the
Association from presenting evidence. Aug. 6, 2019 Motion to Preclude Defendants from
Calling Witnesses and Presenting Exhibits at Trial. The trial court declined to do so,
overruling the motion the following week as trial began. Aug. 13, 2019 Transcript at 2.
{¶ 9} In the event, the Griffeys themselves called Ms. Watkins as part of their case.
(She testified, among other things, that the new gutters had been installed in response to
the Griffeys' complaints; that Mr. Holtzapple had reported finding no dampness in the
crawl space; and that the Association had received no report that anything was wrong with
the siding. Tr. at 93, 96-97.) They also called Association Board representative Lynn
Stoycheff, whose testimony included that the Griffeys had "wanted to have the siding taken
down and checked, but there was no evidence that there was a need to do it"; when
examined by the Association's counsel, she further averred that she was not aware of any
report from either expert recommending foundation or crawl space repairs, and that no one
ever had shown the board any particular problem with the siding. Id. at 44, 56-58.
{¶ 10} Mr. Robinson testified, too, reiterating that he had encountered crawl space
"dampness" on his April 2017 visit, explaining the gutter problems he observed, discussing
what he saw as (reparable) foundation block "deterioration," with "loose concrete
particles," and saying again that he would recommend taking off the rear wall siding "in
order to detect any potential * * * wood rot" that he believed, in the words of the Griffeys'
lawyer, "could be a legitimate concern." Id. at 117, 127-30, 135-36. On cross-examination,
he acknowledged that his written report had not recommended foundation repairs, that he
had no evidence of siding mold or mildew, and that if there had been water behind the
siding, he would have expected evidence of such a problem to appear over the period
between his 2017 inspection and the 2019 trial. Id. at 139-40, 143.
{¶ 11} And Ms. Griffey spoke to the gutter problems, her expressions of concern to
the property manager in 2014 or 2015 about foundation deterioration, three or four
unsuccessful requests to speak with the Association board, and the concerns she expressed
to Ms. Watkins in 2017 about the foundation and siding, as well as about the Association's
March 2017 attempted gutter fix with the extender installation. Id. at 160, 167, 169-70, 221-
22. She also discussed the expert reports and her having shown Mr. Holtzapple what she
viewed as the problems. See, e.g., id. at 222. She testified that she paid Mr. Robinson a
No. 19AP-681 5
total of $400 for his inspection, id. at 210, and that she had obtained legal counsel in
August of 2017 (at a point after the Association had had Mr. Holtzapple conduct his
July 2017 inspection, and in "response" to an Association communication that included
agreement to fix the gutters), id. at 171. She paid that first lawyer $1,380, she said, and she
testified to invoices from her current lawyers. Id. at 210-11.
{¶ 12} On cross-examination and without objection, Ms. Griffey identified her two
claims in the case as being that the Association had breached its contract by failing to make
foundation repairs and by not removing the rear siding to determine whether there had
been any water damage. Id. at 225-26. She acknowledged that Mr. Robinson's report "did
not make a recommendation" that the foundation be repaired. Id. at 226. As to the siding,
when asked with reference to her expert Mr. Robinson's testimony that any issue of water
behind the siding would have manifested itself by the time of trial, she responded: "I have
not seen anything visually myself to report that." Id. at 228. She did not take the
Association up on its offer to have her remove siding as part of discovery because "[i]t is not
my responsibility," and she conceded that "I don't have any proof" of underlying water
damage. Id. at 229. Nonetheless, she said she did want enough of the siding removed "to
see what, if anything, has happened in seven years." Id. at 230; see also id. at 237 (looking
to disclosures for when she sells the condo: "I want to be able to show, well, this was
inspected. This was done. No damage. No structural damage.").
{¶ 13} After the close of their case, the Griffeys voluntarily dismissed their
negligence, breach of warranty, and breach of fiduciary duty claims, leaving their breach of
contract claim. Id. at 251; Decision Following Bench Trial at 2.
{¶ 14} The Association called Mr. Holtzapple. He testified to his inspection and to
Ms. Griffey having walked him around to identify her areas of concern, that he found no
evidence of water intrusion in the crawl space, and that he had determined that the
foundation "was structurally sound and stable so no repairs would have been necessary."
Id. at 268-70 (adding that concrete "pitting" has no structural significance). He described
the gutter problem and his recommendation that the gutters be fixed. Id. at 271-72, 279.
He observed no issues with the siding, and also agreed that any problems of water behind
the siding would have manifested themselves by the time of trial. Id. at 273, 293, 301.
No. 19AP-681 6
{¶ 15} The parties agreed to submit written closing arguments. Urging judgment
for their breach of contract claim, the Griffeys correctly noted that they were required to
prove that they had a contract with the Association, that they had performed their part of
it, that the Association had breached the contract, and that they suffered resulting damage
or loss. Aug. 28, 2019 Plaintiffs' Closing Statement at 7, citing Jarupan v. Hanna, 173 Ohio
App.3d 284, 294 (1oth Dist.2007). They argued that while they had established that they
had satisfied their obligation to pay Association fees, they also had shown "by a
preponderance, that the Association breached the contract by failing to inspect – for latent
defects – repair and maintain the common area at issue; the concrete block wall foundation,
the siding and the supporting structural rear wall of Plaintiffs' Unit and its component
systems." Plaintiffs' Closing Statement at 8. As itemized damages, they listed the $400
cost of the Robinson inspection, $1,380 for the first lawyer (hired after the Holtzapple
inspection), and $11,021.50 for the second set of lawyers (for work done after the gutter
repairs were finished, but "not including through trial"). Id. at 9.
{¶ 16} Finding against the Griffeys, the trial court noted that the Association had
"performed the requested repair to the gutters and downspouts," and found that the
Griffeys had failed to establish that any other work was required. Decision at 2, 3-4.
"Defendant investigated Plaintiffs' [foundation and siding] claims and determined that no
work beyond repair of the gutters and downspouts was necessary"; Plaintiffs "failed to
prove their breach of contract claims" relating to those matters. Id. at 4. And "even if the
Court were to find Defendant in breach for failing to repair the improperly installed gutters
and downspouts sooner, the * * * Plaintiffs failed to prove any resulting damages." Id. at 3.
Mr. Robinson's invoices did not include an "hourly rate or hourly breakdown of services,"
the trial court added, and the Griffeys had "provided no invoices or any other information
regarding the type of legal work performed" by their first lawyer, or what his hourly rate or
amount of work had been. Id.
{¶ 17} The Griffeys appeal that decision based on two assignments of error:
[1.] The Trial Court erred and abused its discretion in
permitting Defendant/Appellee to submit an expert witness
disclosure out of rule and in permitting that expert witness to
testify at the trial of this matter.
[2.] The Trial Court's Judgment Entry and Decision following
bench trial was against the manifest weight of the evidence.
No. 19AP-681 7
Appellants' Brief at 1. We are not persuaded.
{¶ 18} Under their first assignment of error, the Griffeys contend that the trial court
erred in admitting the testimony of Mr. Holtzapple because the Association was delinquent
in disclosing him as a witness. Citing Loc.R. 43.04 of the Franklin County Court of
Common Pleas, General Division, which states that "[a]ny witnesses not disclosed in
compliance with this rule may not be called to testify at trial, unless the Trial Judge orders
otherwise for good cause and subject to such conditions as justice requires," they argue that
"the Association never demonstrated any good cause" for its violation of rule and "protocols
of discovery." Appellants' Brief at 12. That argument, we note, may not quite jibe with the
local rule, which on its face permits a trial court to allow testimony for good cause and as
appropriately conditioned. Compare Jubilee Ltd. Partnership v. Hosp. Properties, Inc.,
10th Dist. No. 09AP-1145, 2010-Ohio-5550, ¶ 46 ("Loc.R. 43 permits the trial judge to allow
the testimony 'for good cause and subject to such conditions as justice requires' ") and Basil
v. Wagoner, 10th Dist. No. 94APE12-1716, 1995 Ohio App. LEXIS 3965, at *6 (Sep. 12,
1995) (rule "permits the trial judge to allow the testimony 'for good cause * * *"), with Dees
v. Traffic Specialists, 10th Dist. No. 96APE07-972, 1997 Ohio App. LEXIS 789, at *5-6
(Mar. 4, 1997) ("We cannot say that the trial court abused its discretion in finding that
appellant failed to show good cause, pursuant to Loc.R. 43.04, for failing to disclose Herald
as a witness in a timely manner"; exclusion upheld as discovery sanction).
{¶ 19} In any event, the well-established standard is that: "An appellate court
reviews a trial court's decision to allow the testimony of an undisclosed witness under an
abuse of discretion standard." Jubilee at ¶ 45 (citations omitted); see also Pang v. Minch,
53 Ohio St.3d 186 (1990), paragraph one of the syllabus (applying abuse of discretion
standard to trial court ruling denying motion in limine seeking to exclude testimony of non-
disclosed medical expert under local rule). And we have made very clear that in the exercise
of that discretion, a trial court may permit appropriately conditioned testimony by a witness
belatedly disclosed where there is no undue prejudice or surprise: "Our past cases have
considered whether a party suffered 'undue prejudice or surprise' if the witness was
permitted to testify when not properly disclosed prior to trial." RAE Assocs. v. Nexus
Communications, Inc., 10th Dist. No. 14AP-482, 2015-Ohio-2166, ¶ 42 (citing Woodruff v.
Barakat, 10th Dist. No. 02AP-351, 2002-Ohio-5616, ¶ 17, and adding that "[i]f opposing
No. 19AP-681 8
counsel is on notice of the existence of a potential witness and the content of the testimony,
the court may be reluctant to exclude the witness from testifying"). See also Jubilee at ¶ 47
("the trial court did not abuse its discretion because HPI was not prejudiced").
{¶ 20} Here, it is undisputed that Mr. Holtzapple and his views were well known to
plaintiffs even before they filed suit; Ms. Griffey had accompanied him on his inspection,
and they had a copy of his report. Moreover, he had been identified as a witness months
before trial: the Association had used his affidavit in opposing summary judgment and
moved for leave to identify him as a witness while also offering him for deposition, and the
trial court granted that leave on April 4, 2019, some four and a half months or so before the
trial.
{¶ 21} Under these circumstances, we cannot say that the trial court abused its
discretion in permitting Mr. Holtzapple to testify. See also, e.g., Heilman v. Weltzheimer,
10th Dist. No. 80AP-524, 1981 Ohio App. LEXIS 10746, at *4 (May 28, 1981) (where
appellant "could have moved the court for an order compelling discovery," but failed to do
so, trial court did not abuse its discretion in refusing to exclude undisclosed witness);
Woodruff, 2002-Ohio-5616, at ¶ 17 (no prejudice to defendant where "several weeks before
trial the parties had the opportunity to take [plaintiff's expert's] deposition" after initial
failure to disclose expert); Basil, 1995 Ohio App. LEXIS 3965, at *6 (no prejudice where
appellants were "on notice of the existence of the potential witnesses and were provided
with the 'entire files' of the experts well before the trial date, yet after the original discovery
deadline had lapsed").
{¶ 22} We overrule the Griffeys' first assignment of error (and for that reason among
others do not follow what we take to be the Association's suggestion to assess whether the
Griffeys failed to meet their burden even looking only to their own evidence, see Appellee's
Brief at 31-32).
{¶ 23} The Griffeys' second assignment of error, that the trial court's judgment was
against the manifest weight of the evidence, requires us to undertake a "limited reweighing
of the evidence" in something of the role of a " 'thirteenth juror.' " Chefor v. Morgan, 10th
Dist. No. 13AP-100, 2013-Ohio-4213, ¶ 11-12 (citations omitted). "[I]n reviewing a
judgment under the manifest-weight standard, a court of appeals weights the evidence and
all reasonable inferences, considers the credibility of witnesses, and determines whether,
No. 19AP-681 9
in resolving conflicts in the evidence, the finder of fact clearly lost its way." Brown v. Dept.
of Rehab. & Corr., 10th Dist. No. 13AP-804, 2014-Ohio-1810, ¶ 19. We are guided in this
effort by a " 'presumption in favor of the finder of fact' " that applies to questions of weight
and credibility. Id. at ¶ 19, quoting Eastley v. Volkman, 132 Ohio St.3d 328, ¶ 21. " 'If the
evidence is susceptible of more than one construction, the reviewing court is bound to give
it that interpretation which is consistent with the verdict and judgment, most favorable to
sustaining the verdict and judgment.' " Eastley at ¶ 21, quoting Seasons Coal Co., Inc. v.
Cleveland, 10 Ohio St.3d 77, 80 (1984) (further citation omitted).
{¶ 24} Having reviewed the evidence, we cannot say that the trial court clearly lost
its way in concluding that the Griffeys failed to establish damage from any Association
breach of contract. Mr. Robinson did testify that he perceived "deterioration of the siding,"
Tr. at 145, but the Griffeys were not arguing that the siding necessarily needed to be
replaced; their claim, rather, was that the rear siding should be taken off and inspected for
possible rot, mold, or the like. Mr. Robinson averred that any such hypothetical issues
likely would have become manifest by the 2019 trial date (a point in which Mr. Holtzapple
concurred), while Ms. Griffey conceded that no expert had said that repairs to the wall were
necessary and that she had not seen indicia of water intrusion behind the siding. Id. at 143-
44, 226, 228. Mr. Holtzapple's testimony that he witnessed no damage to the siding and
saw no need to tear it apart, Tr. at 273, 281-82, 293, 301, only bolsters the trial court's view
that the Griffeys failed to show that "problems exist behind the siding." Decision at 3, 4.
{¶ 25} The Griffeys' case that their foundation needed to be repaired was scarcely
stronger. Mr. Robinson found a crawl space damp, but Mr. Holtzapple found it dry when
he went there; in any event, the Griffeys pointed to no damage linked to the Robinson
observations and offered no evidence that the crawl space was damp at any time after the
September 2017 gutter replacement. Mr. Robinson's report did not specify foundation
repairs (although he discussed possible remedial approaches at trial), and Mr. Holtzapple
(a structural engineer who said that he "made a general inspection of the entire property,"
including the rear wall, and examined the areas pointed out by Ms. Griffey, Tr. at 268, 277)
testified strongly that none were needed: "no repairs would have been necessary" because
"it was structurally sound and stable," Tr. at 270.
No. 19AP-681 10
{¶ 26} The trial court's conclusions that the Griffeys failed to establish their
(unquantified) claims of siding and foundation damage were not against the manifest
weight of the evidence. And they make no supportable argument as to why, having lost on
what they said their breach of contract claims were, see, e.g., Tr. at 225-26, Plaintiffs'
Closing Statement at 7-8, they now should be entitled to legal fees for their first lawyer (as
apparently retained after the Association had summoned Mr. Holtzapple to inspect and had
agreed to replace the gutters, see Tr. at 173), or for their current counsel (whose billing
records don't start until after the gutters were fixed, see Plaintiff's Ex. 19). Further, the
trial court was entirely correct that the Griffeys provided no information as to what their
first lawyer did, or what his rates or hours were. See Decision at 3.
{¶ 27} And while we might have been persuaded to uphold a trial court award of
$400 to the Griffeys for what they paid Mr. Robinson, we cannot say that, with every
reasonable intendment and presumption made in favor of the judgment, the trial court's
failure to make such an award goes against the manifest weight of the evidence. See
Eastley, 132 Ohio St.3d 328, 334. The trial court was unable to determine any "hourly
breakdown" of Mr. Robinson's services, Decision at 3, potentially including his crawl space
explorations and the like. More significantly, perhaps, the Griffeys do not explain why the
trial court should have been compelled to conclude that absent Mr. Robinson's visit, the
gutters would not have been fixed. They point us to no such direct testimony and, while the
Griffeys had been complaining about gutter-related issues for a prolonged period, the
Association had made its first attempt to respond to the problem in March 2017 (before
Mr. Robinson appeared on the scene) when it installed the gutter extender/diverter that
proved unsuccessful; further, the Association's agent testified that "the Griffeys still had
complaints about water overshooting their gutter" after the diverter was installed, "[a]nd
so the board undertook to put in new gutters with larger dimensions." Tr. at 93 (Ms.
Watkins agreeing with proposition of the Griffeys' counsel). That an inference is permitted
does not make it mandatory, and we think that this is a situation in which "although a finder
of fact is permitted to draw reasonable inferences from proven facts, it is not required to do
so." Charles v. Peters, 2d Dist. No. 2015-CA-52, 2016-Ohio-1259, ¶ 24 (citations omitted).
Even if Mr. Robinson's bills can be severed from the Griffeys' underlying contract claims
No. 19AP-681 11
regarding the foundation and siding, we cannot appropriately reverse the trial court on this
score under the manifest weight of the evidence standard.
{¶ 28} We overrule the Griffeys' second assignment of error.
{¶ 29} We affirm the judgment of the Franklin County Court of Common Pleas that
heard the evidence at trial.
Judgment affirmed.
SADLER, P.J. and BRUNNER, J., concur.