[Cite as Smith v. Ironwood , 2022-Ohio-875.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

WARREN COUNTY

TERRI EGELSTON SMITH, et al., Appellees and Cross-Appellants,

- vs -

IRONWOOD AT SHA KER RUN, et al., Appellants and Cross-Appellees. :

:

:

:

:

: CASE NOS. CA2021-07-065 CA2021-08-068

O P I N I O N

3/21/2022

CIVIL APPEAL FROM WARREN CO UNTY COURT OF COMMON PLEAS Case No. 19 CV 91902

Young, Reverman & Mazzei Co., LPA, and Bradford C. Weber, for a ppellees and crossappellants. John K. Benintendi, for appellants and cross-appellees.

M. POWELL, P.J. {¶ 1} Appellants and Cross-appellees, Towne Properties Asset Manageme nt Company and Towne Properties Assets Management Company, Ltd. (c ollectively "Towne Properties"), and Ironwood at Shaker Run Condominium Owners' As sociation, Inc. ("Ironwood"), appeal the Warren County Common Pleas Court's May 7, 2019 Decision andWarren CA2021-07-065 CA2021-08-068

- 2 - Entry denying appellants' motion for summary judgment, and foll owing a bench trial, the trial court's August 21, 2020 Final Judgment Entry granting jud gment to appellees and cross-appellants, Terri Smith and her husband Douglas Smith (Te rri and Douglas individually and the Smiths collectively), on their negligence claim. The Smiths crossappeal the trial court's July 20, 2021 Amended Final Judgment E ntry granting judgment to appellants on the Smiths' breach-of-contract claim. {¶ 2} In 2012, the Smiths purchased a condominium unit located on Dou ble Eagle Court in the Ironwood at Shaker Run Condominium development in Warren County, Ohio. Towne Properties services the community by providing maintenanc e work, including the

removal of accumulations of snow and ice in the winter. After moving into their condominium, the Smiths received Ironwood's Resident Handbook ( "handbook"), which includes policies on snow removal, prohibits the use of chemica l de-icers, and only allows the use of sand for "traction in icy conditions." {¶ 3} On January 19, 2015, at approximately 7 a.m., Terri exited her condominium through her garage and walked down her driveway toward her husb and's vehicle, which was parked in a parking space opposite her condominium. Terri' s driveway was dry, but after taking several steps across Double Eagle Court, Terri sli pped and fell on ice, suffering serious physical injuries. The area where Terri fell was dark and was illuminated neither by the garage door opener light nor the light on the outside of he r garage. {¶ 4} The parking space where her husband's vehicle was parked abuts a large, slopped, and grassy island separat ing Double Eagle Court from a nother street in the condominium development. The ice upon which Terri fell apparen tly resulted from water runoff from the slopped island. The water would run off the el evated island, across the parking spaces and Double Eagle Court, and into a curb drain. The area where Terri fell isWarren CA2021-07-065 CA2021-08-068

- 3 - part of the common areas within the condominium development and is controlled by Ironwood and serviced by Towne Properties. {¶ 5} Following his wife's fall, Douglas called Murry Feldstein, appe llants' then association manager, to report the accident. Feldstein acknowl edged there was a drainage problem in the area and to be careful. Several months after Te rri's fall, Ironwood issued a notice to condominium owners, announcing it had contracted to h ave French drains installed "along the bottom of the [island] that drains onto Do uble Eagle [Court]." The notice indicated that "[t]he goal is to eliminate the large amount of drainage (water and ice) that comes off of this hill and is negatively affecting the roadways and can become hazardous

at times." {¶ 6} On January 30, 2019, the Smiths filed a complaint against appel lants, alleging negligence and breach of contract. 1 The Smiths alleged that (1) the ice Terri slipped on was an unnatural accumulation of ice, (2) appellants were aware of the drainage problem and accumulation of ice and water prior to Terri's fall, (3) ap pellants had a duty to warn Terri of the dangerous condition, and (4) appellants failed to reason ably maintain the common areas, including Double Eagle Court. The Smiths asserted that appellants' negligence caused Terri's injuries and Douglas' loss of consortium. The S miths further alleged that the handbook constituted a contract between appellants and the Smit hs and that appellants breached it by failing to maintain Double Eagle Court and the p arking area in a reasonably safe condition, resulting in Terri's injuries. {¶ 7} Appellants moved for summary judgment on both claims. Appellan ts argued they owed the Smiths no duty of care because the ice upon which Terri fell was not an

1. The Smiths originally filed a complaint in 2017, subsequent ly dismissed it without prejudice, and timely refiled it.Warren CA2021-07-065 CA2021-08-068

- 4 - unnatural accumulation of ice, appellants lacked superior knowl edge of the ice accumulation, and the Smiths' negligence claim was barred by th e open and obvious doctrine. Appellants further argued the Smiths failed to attac h any contract to the complaint and failed to present any evidence that appellants assumed a co ntractual duty to remove snow or ice from the parking area. {¶ 8} On May 7, 2019, the trial court denied appellants' motion for s ummary judgment regarding the Smiths' negligence claim. The trial cou rt found there were genuine issues of material fact regarding whether the ice upon which Te rri fell was a natural accumulation or an unnatural accumulation caused by appellants. The trial court also rejected appellants' argument that darkness was an open and obv ious condition at the time of Terri's fall negating any duty appellants owed Terri. Regar ding the Smiths' breach-ofcontract claim, the trial court stated that "no argument was pu t forward * * * and, therefore, this Court cannot grant summary judgment as to the breach of co ntract claim[.]" {¶ 9} Appellants moved the trial court to reconsider its summary judg ment decision, arguing that the court had improperly placed the burden of proo f on appellants to demonstrate that the ice was a natural accumulation, and noting that appellants had in fact addressed the breach-of-contract claim in their summary judgmen t pleadings. The trial

court denied the motion for reconsideration. The breach-of-con tract claim remained pending before the trial court following the conclusion of the summary judgment stage. {¶ 10} The parties stipulated damages and the matter proceeded to a be nch trial in August 2020. Terri, Douglas, and Feldstein testified. On Augu st 21, 2020, the trial court found appellants liable for negligence. Although the trial cou rt found that the ice upon which Terri slipped and fell was a natural accumulation of ice, it fu rther found that appellants "had

actual or constructive notice that the natural accumulation cre ated a condition substantiallyWarren CA2021-07-065 CA2021-08-068

- 5 - more dangerous than Terri or another condominium owner would as sociate with ice." The trial court rejected the application of both the open and obvio us doctrine and the step-inthe-dark rule. The trial court awarded the Smiths "the stipula ted damages amount of $75,000." The trial court did not analyze or resolve the Smith s' breach-of-contract claim, and did not award damages with respect to that claim. {¶ 11} Appellants appealed the trial court's denial of their summary j udgment motion and the court's judgment in favor of the Smiths to this court. On February 8, 2021, we dismissed the appeal for lack of a final appealable order due t o the trial court's failure to

address the Smiths' breach-of-contract claim and the lack of Ci v.R. 54(B) language in the trial court's judgment entry. See Smith v. Ironwood at Shaker Run Condominium Owners'

Assn. , 12th Dist. Warren No. CA2020-08-051, 2021-Ohio-346. The tria l court subsequently revisited the matter based upon the trial record. {¶ 12} On July 20, 2021, the trial court reiterated its judgment in fa vor of the Smiths on their negligence claim but ruled in favor of appellants on t he Smiths' breach-of-contract claim, as follows: [T]he Court finds Defendants owed Terri a duty of ordinary care to maintain the premises in a reasonably safe condition, were aware of a natural accumulation of snow and ice that was substantially more dangerous than normally associated with snow and ice, and breached their duty by not addressing this known accumulation of snow and ice before Terri's fall. The Court further finds the handbook in question is not a contract and, even if it were to be construed as a contract, Defendants did not breach the contract by failing to clear ice from around Terri's condominium. {¶ 13} Appellants now appeal the trial court's May 7, 2019 denial of t heir summary judgment motion and the trial court's August 21, 2020 judgment finding them negligent, raising four assignments of error. The Smiths cross-appeal the trial court's July 20, 2021 dismissal of their breach-of-contract claim, raising one cross- assignment of error.Warren CA2021-07-065 CA2021-08-068

- 6 - Appellants' third assignment of error will be addressed out of order; their second and fourth assignments of error will be addressed together. {¶ 14} Assignment of Error No. 1: {¶ 15} THE TRIAL COURT ERRED IN DENYING APPELLANTS' MOTION FOR

SUMMARY JUDGMENT. {¶ 16} Appellants argue that the trial court erred in denying their mo tion for summary judgment because (1) the ice upon which Terri slipped and fell was a natural accumulation of ice that was not substantially more dangerous than one would normally associate with ice, (2) darkness was an open and obvious condition, and (3) th ere was no evidence that the parking area was negligently designed or that the drainage system caused an unnatural

accumulation of ice. {¶ 17} An appellate court reviews a trial court's decision on a motion for summary judgment de novo, independently and without deference to the de cision of the trial court. A N Bros. Corp. v. Total Quality Logistics, L.L.C. , 12th Dist. Clermont No. CA2015-02-021, 2016-Ohio-549, ¶ 18. However, any error in denying a summary j udgment motion is

rendered moot or harmless if the motion is denied due to the ex istence of genuine issues of material fact, and a subsequent trial results in a verdict i n favor of the party who did not move for summary judgment. Id. ; Jackson v. Hogeback , 12th Dist. Butler No. CA2013-10- 187, 2014-Ohio-2578, ¶ 12, citing Continental Ins. Co. v. Whittington , 71 Ohio St.3d 150, 157, 1994-Ohio-362. Essentially, "a party may not appeal an or der denying summary judgment after a full trial on the merits because that order re tains its interlocutory character as simply a step along the route to final judgment." A N Bros Corp . at ¶ 18; Ortiz v. Jordan , 562 U.S. 180, 184, 131 S.Ct. 884 (2011). Once a case proceeds to trial, the full record is developed, and this record supersedes the limited record existi ng at the time of theWarren CA2021-07-065 CA2021-08-068

- 7 - summary judgment motion. A N Bros Corp. at id. ; Ortiz at id. {¶ 18} The trial court denied appellants' motion for summary judgment finding there were genuine issues of material fact regarding whether the ice upon which Terri slipped and

fell was a natural or unnatural accumulation of ice. Because t he case subsequently proceeded to a bench trial, which resulted in a verdict in favo r of the Smiths, any error in denying appellants' motion for summary judgment is rendered moo t or harmless. South v. Browning , 12th Dist. Warren No. CA2012-09-088, 2013-Ohio-1491, ¶ 28. {¶ 19} Appellants' first assignment of error is overruled. {¶ 20} Assignment of Error No. 3: {¶ 21} THE TRIAL COURT'S DECISION IS AG AINST THE MANIFEST WEIGHT OF

THE EVIDENCE BY MISAPPLYING THE LAW TO THE FACTS. {¶ 22} Appellants argue that the trial court's judgment in favor of th e Smiths on their negligence claim is against the manifest weight of the evidence

. {¶ 23} "The standard of review for a manifest weight challenge in a ci vil case is the same as that applied to a criminal case." Holmes v. Lakefront at W. Chester , 12th Dist. Butler No. CA2021-05-046, 2022-Ohio-99, ¶ 34; Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 17. When considering a challenge to the mani fest weight of the evidence, an appellate court weighs the evidence and all reason able inferences, considers the credibility of witnesses, and determines whether in resolvi ng conflicts in the evidence, the finder of fact clearly lost its way and created a manifest miscarriage of justice warranting

reversal and a new trial ordered. Holmes at id .; Eastley at ¶ 20. {¶ 24} In a negligence action, a plaintiff must prove the existence of a duty owed, a breach of that duty, and an injury proximately caused by the br each. Gentry v. Collins , 12th Dist. Warren No. CA2012-06-048, 2013-Ohio-63, ¶ 13.Warren CA2021-07-065 CA2021-08-068

- 8 - {¶ 25} Generally, an owner or occupier of land does not owe a duty to business

invitees to remove natural accumulations of snow and ice or to warn such invitees of the dangers inherent to such accumulations. Holbrook v. Kingsgate Condominium Assn. , 12th Dist. Butler No. CA2009-07-193, 2010-Ohio-850, ¶ 13. This is b ecause the dangers associated with natural accumulations of snow and ice are typic ally considered to be so open and obvious that an owner or occupier may reasonably expec t that a business invitee will safeguard himself against those dangers. Id. , citing Sidle v. Humphrey , 13 Ohio St.2d 45 (1968), paragraph two of the syllabus. This general rule, k nown as the no-duty winter rule, is subject to two exceptions. {¶ 26} Under the first exception, a duty to exercise reasonable care t o protect business invitees arises when an owner or occupier has actual o r constructive notice that a

natural accumulation of snow or ice has created a condition sub stantially more dangerous than an invitee would normally associate with snow and ice. Holbrook at ¶ 14 (hereinafter the "substantially more dangerous exception"). In order for li ability to attach under this exception, the owner or occupier must have some "superior knowl edge" of the existing danger. Id. {¶ 27} This exception was first applied by the Ohio Supreme Court in Mikula v.

Tailors , 24 Ohio St.2d 48 (1970). The supreme court found that "a nat ural accumulation of snow which fills or covers [a deep] hole [in the surface of a p arking lot] is a condition substantially more dangerous than that normally associated with snow," and that a business invitee "is not bound to anticipate that condition as an ordina ry hazard resulting from the

snow." Id. at 57. Mikula and its progeny have limited this exception to cases in which a natural accumulation of ice or snow conceals another danger. See Crossman v. Smith

Clinic , 3d Dist. Marion No. 9-10-010, 2010-Ohio-3552; Cooper v. Valvoline Instant OilWarren CA2021-07-065 CA2021-08-068

- 9 - Change , 10th Dist. Franklin No. 07AP-392, 2007-Ohio-5930; Koss v. Cleveland Holding Corp. , 8th Dist. Cuyahoga No. 34111, 1975 Ohio App. LEXIS 6565 (July 10, 1975). {¶ 28} Under the second exception, an owner or occupier has a duty to exercise reasonable care to protect business invitees from unnatural, i. e., man-made or mancaused, accumulations of snow or ice. Holbrook , 2010-Ohio-850 at ¶ 16. Unnatural

accumulations of snow or ice refer to causes and factors other than the winter weather's low temperatures, strong winds, and drifting snow. Id . at ¶ 17. "[T]he melting of ice and snow and subsequent refreezing is insufficient, standing alone, to impose liability," and instead, the owner or occupier must do something that causes th e snow or ice to accumulate in an unexpected location or manner in order for the accumulation to be

considered unnatural. Id. This exception, therefore, applies when the owner is actively negligent in permitting or creating an unnatural accumulation o f snow or ice. Miller v. Tractor Supply Co. , 6th Dist. Huron No. H-11-001, 2011-Ohio-5906, ¶ 10. {¶ 29} This appeal implicates only the substantially more dangerous ex ception to the no-duty winter rule. The trial court found that the ice upon w hich Terri slipped and fell was a natural accumulation. The Smiths do not challenge this findi ng. In this regard, the Smiths testified that there was no evidence appellants created the Jan uary 19, 2015 icy accumulation upon which Terri slipped and fell. Thus, to preva il on their negligence claim at trial, the Smiths were required to prove that the natural ac cumulation of ice was substantially more dangerous than Terri could have appreciated and that appellants had superior knowledge of the existing danger. Holbrook v. Oxford Hts. Condominium Assn. , 8th Dist. Cuyahoga No. 81316, 2002-Ohio-6059, ¶ 40. {¶ 30} The trial court found that appellants were liable under the sub stantially more dangerous exception because although the ice upon which Terri s lipped and fell was aWarren CA2021-07-065 CA2021-08-068

- 10 - natural accumulation of ice, appellants "had actual or construc tive notice that the natural accumulation created a condition substantially more dangerous t han Terri or another condominium owner would associate with ice." Specifically, the trial court found that appellants knew about the drainage problem in the area and that such drainage problem "increased the level of naturally accumulating ice in the area outside [the Smiths'] condominium in a manner that made the condition substantially m ore dangerous than one would normally associate with ice in the wintertime." {¶ 31} There is no evidence that the ice upon which Terri fell conceal ed another hazard or danger nor is there evidence that the ice created a c ondition substantially more dangerous than normally associated with ice or snow. The only hazard involved in Terri's injuries was the slippery nature of the naturally accumulated i ce on Double Eagle Court and the parking area. Miller , 2011-Ohio-5906 at ¶ 14; Cooper , 2007-Ohio-5930 at ¶ 24. "Black ice, moreover, is not a condition substantially more dangerous than is normally associated with freezing rain" or the natur al thaw and freeze cycles in wi ntertime life in Ohio. Miller at ¶ 14, 16. The trial court applied the substantially more dange rous exception based only upon the quantity of ice that had naturally accumulated. Howev er, contrary to the trial court's reasoning, the mere quantity of naturally accumulating ice does not invoke the substantially more dangerous exception to the no-duty winter ru le. {¶ 32} Furthermore, there is no evidence that appellants had superior knowledge of the icy condition. The Smiths testified that they had traverse d Double Eagle Court and the parking area "outside their condominium countless times since 2 012 to get to their respective vehicles and had never encountered invisible ice lik e this on the ground before." The Smiths each conceded they had no evidence appellants were a ware of the icy condition or whether anyone had fallen on ice on Double Eagle Court prior to Terri's fall. There is noWarren CA2021-07-065 CA2021-08-068

- 11 - evidence that anyone, including the Smiths, had reported the ic y condition of Double Eagle Court and the parking area on January 19, 2015, to appellants. See Oxford Hts. , 2002- Ohio-6059; Mayes v. Boymel , 12th Dist. Butler No. CA2002-03-051, 2002-Ohio-4993. Feldstein testified appellants had no knowledge of anyone falli ng on ice in the condominium development prior to Terri's fall; furthermore, appellants had no knowledge that water runoff from the island made the ice upon which Terri slipped and fell more hazardous than what one would expect in the wintertime. While Feldstein acknowledg ed there was a "drainage problem" in the area, the Smiths' testimony shows they were equ ally aware that water drained off the elevated island, across Double Eagle Court and the parking area, and into

the curb drains located on the condominium side of the street. In fact, Douglas testified he

had discussed it with Terri on occasion. {¶ 33} This court has previously held that "snow and ice are a part of wintertime life

in Ohio and hazardous winter weather conditions and their atten dant dangers are to be expected in this part of the country." Mayes at ¶ 14. In light of the Smiths' testimony, Terri had both actual and constructive knowledge of the dangers prese nted by natural accumulations of ice and snow. As stated above, appellants did not have superior knowledge of an unreasonably dangerous condition different from that presented by natural accumulations of ice and snow generally. Rather, the evidence shows that the parties had equal knowledge of the dangers resulting from the natural accum ulations of ice and snow. {¶ 34} The trial court, therefore, erred in finding appellants liable to the Smiths for negligence under the substantially more dangerous exception to the no-duty winter rule. {¶ 35} In light of the foregoing, we find that the decision of the tri al court granting judgment in favor of the Smiths on their negligence claim is ag ainst the manifest weight of the evidence. Appellants' third assignment of error is well-ta ken and sustained.Warren CA2021-07-065 CA2021-08-068

- 12 - {¶ 36} Assignment of Error No. 2: {¶ 37} THE TRIAL COURT ERRED IN MISAPPLYING THE OPEN AND OBVIOUS

DOCTRINE IN ITS FINAL JUDGMENT ENTRY. {¶ 38} Assignment of Error No. 4: {¶ 39} THE TRIAL COURT ERRED IN NOT APPLYING THE STEP-IN-THE-DARK

RULE. {¶ 40} The trial court rejected the application of the open and obviou s doctrine "because black ice, by its nature, is invisible." The court fu rther rejected the application of the step-in-the-dark rule "as Terri had knowledge of where she was walking due to her repeated trips to the vehicle parking lot for several years pri or to the fall." 2 In their second assignment of error, appellants argue that the trial court misa pplied the open and obvious doctrine by improperly focusing on the hazard, the black ice, r ather than on the darkness

itself. 3 In their fourth assignment of error, appellants argue the tri al court erred by not applying the step-in-the-dark rule. {¶ 41} Given our resolution of appellants' third assignment of error, their second and fourth assignments are moot and need not be considered. App.R. 12(A)(1)(c); Vesper v.

Otterbein Lebanon , 12th Dist. Warren No. CA2021-02-016, 2021-Ohio-4545.

2. The step-in-the-dark rule "holds generally that one who, fr om a lighted area, intentionally steps into total darkness, without knowledge, information, or investigation as t o what the darkness might conceal, is guilty of contributory negligence as a matter of law." Posin v. A. B. C. Motor Court Hotel , 45 Ohio St.2d 271, 276 (1976). See also Hissong v. Miller , 186 Ohio App.3d 345, 2010-Ohio-961 (2d Dist.), in which the S econd District Court of Appeals compares the open and obvious doctrin e and the step-in-the-dark rule; Prater v. United Steel Workers of Am. Local 1949 , 3d Dist. Marion No. 9-79-22, 1980 Ohio App. LEXIS 10284 (Mar. 21, 1980), in which the Third District Court of Appeals held th at the step-in-the-dark rule was not applicable in part because the plaintiff was traversing the same general a rea she had successfully traversed without mishap moments before. 3. The Ohio Supreme Court has held that "'darkness' is always a warning of danger, and for one's own protection it may not be disregarded." Jeswald v. Hutt , 15 Ohio St.2d 224 (1968), paragraph three of the syllabus. We have recognized that "darkness is an open and obv ious condition." Gentry v. Collins , 12th Dist. Warren No. CA2012-06-048, 2013-Ohio-63, ¶ 22.Warren CA2021-07-065 CA2021-08-068

- 13 - {¶ 42} We now turn to the Smiths' cross-assignment of error: {¶ 43} THE TRIAL COURT ERRONEOUSLY FOUND THAT A BREACH OF

CONTRACT CASE HAD NOT BEEN ESTABLISHED. {¶ 44} The Smiths based their breach-of-contract claim on Ironwood's r esident handbook and alleged that appellants breached the handbook/cont ract by failing to maintain Double Eagle Court and the parking area in a reasonably safe co ndition, resulting in Terri's injuries. The trial court found that the handbook did not meet the requirements of a contract

and therefore did not establish a maintenance contract between appellants and the Smiths. The court further found that, even assuming the handbook was a contract, the Smiths failed to prove appellants breached it. In their cross-assignment of error, the Smiths argue that the trial court erred in its decision because in determining ap pellants' obligations and responsibilities, the court solely limited its examination to t he handbook instead of examining the totality of the ev idence, including Feldstein's t estimony. {¶ 45} The handbook states that a homeowner in the condominium develop ment automatically becomes a "member of the Ironwood at Shaker Run C ondominium Owners Association," that each member is required to pay a "monthly As sessment," and that Ironwood is governed by a set of documents, including Ironwood' s Declaration of Condominium Ownership. The handbook encourages homeowners to r ead the Declaration and Ironwood's by-laws. {¶ 46} Pursuant to the handbook, (1) Ironwood has a general responsibi lity to maintain "[a]ll private roadways, driveways, pavements, sidewal ks, and uncovered parking areas," (2) snow captains act as a liaison to Ironwood's Board of Trustees and determine "if snow removal is required pursuant to guidelines approved by the Board," (3) in the event snow removal is required, snow captains and building representa tives report if theWarren CA2021-07-065 CA2021-08-068

- 14 - sidewalks and parking areas were adequately cleared to ensure s afety, and (4) "snow pushing" is part of the annual budget and is performed by an in dependent contractor. The handbook provides that the independent contractor "will remove snow after the snow has stopped and only after an accumulation of 2 inches," prohibits the use of chemical de-icers because such use would void the concrete warranty, and permits the "use of sand only to provide traction in icy conditions." The handbook is silent as to when ice should be

removed. {¶ 47} Feldstein testified that appellants' responsibilities at the ti me of Terri's fall included maintaining the common areas, driveways, sidewalks, an d parking areas, removing snow, and treating for ice. {¶ 48} The elements of a claim for breach of contract "include the exi stence of a contract, performance by the plaintiff, breach by the defendant , and damage or loss to the plaintiff." Oxford Hts. , 2002-Ohio-6059 at ¶ 33. {¶ 49} A contract is a "promise or a se t of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes a duty." Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations , 61 Ohio St.3d 366, 369 (1991). The essential elements of a contract include "an o ffer, an acceptance, a meeting of the minds, an exchange of consideration, and certain ty as to the essential terms

of the contract." Turner v. Langenbrunner , 12th Dist. Warren No. CA2003-10-099, 2004- Ohio-2814, ¶ 13. "In order to declare the existence of a contr act, both parties to the contract must consent to its terms; there must be a meeting of the minds of both parties; and the contract must be definite and certain." (Citations omitted.) Episcopal Retirement Homes at 369; Economy Linen & Towel Serv., Inc. v. McIntosh , 12th Dist. Butler No. CA2000-11- 226, 2001 Ohio App. LEXIS 4145, *5 (Sep. 17, 2001).Warren CA2021-07-065 CA2021-08-068

- 15 - {¶ 50} We find no error in the trial court's dismissal of the Smiths' breach-of-contract

claim. The Smiths did not submit Ironwood's Declaration of Con dominium Ownership or its by-laws and there is no evidence the documents include any resp onsibility for ice removal. The handbook was provided to the Smiths only after they had pur chased their condominium unit. There were therefore no offer and no acceptance and the handbook was not part of the Smiths' condominium purchase agreement. Rather, as the tri al court aptly found, the "handbook is simply a notification to condominium unit owners o f the services that come with their payment of a condominium association fee. * * * The handbook does not establish a meeting of the mind between [appellants] and [the Smiths], no r does it contain any evidence of 'consent' between the parties." We further note th at the Smiths failed to provide any written evidence of their performance of the alleged contra ct between them and appellants (i.e., payment of their monthly fee). See Oxford Hts. , 2002-Ohio-6059 at ¶ 33,

fn. 1. {¶ 51} The Eighth District's Oxford Hts. opinion supports our analysis. In that case, Susan Holbrook, a condominium owner, slipped and fell on an icy sidewalk as she was entering her condominium. She and her husband sued the condomi nium association, alleging breach of contract based upon a letter they had receiv ed from the association. The letter referred to the association's snowplow contract with an independent contractor for snow and ice removal and stated that the snowplow contract prov ided for removal of snow when the snow accumulation reached a depth of two inches, and f or ice removal "as the need occurs." In opposing summary judgment, the Holbrooks argu ed that the letter was a maintenance contract between them and the association. The Eig hth District upheld the trial court's grant of summary judgment to the association. {¶ 52} In so holding, the court of appeals found that the letter recei ved by theWarren CA2021-07-065 CA2021-08-068

- 16 - Holbrooks did not constitute a contract between them and the as sociation because The letter clearly does not meet the requirements [of a contrac t]. It is simply a letter to "Unit Owners," which presumably includ ed [the Holbrooks], outlining certain provisions of the contract f or snow and ice removal between Continental Management Company (who is not a party to this action) and Rustic . It does not address [ the Holbrooks' ] contractual obligations nor evince any "meeting of the minds" by the Holbrooks and Oxford Heights or either party's consent to the alleged contract. Therefore, i t does not establish a maintenance contract between the Holbrooks and Oxford Heights. [W]ithout any evidence of a contract, the Holbrooks' breach of contract claim necessarily fails. Oxford Hts. , 2002-Ohio-6059 at ¶ 32-33. {¶ 53} The Eighth District further found that "even assuming for the s ake of argument that the letter * * * somehow created a contract between [the H olbrooks] and Oxford Heights, * * * [they] failed to present any evidence regarding breach of its terms." Id. at ¶ 34. Specifically, the court of appeals found that the Holbrooks "pr esented no evidence that there was a two inch or greater accumulation of snow on the sidewalk prior to Susan's fall that should have been removed pursuant to the contract." Id. at ¶ 35. Moreover, the Holbrooks "failed to present any evidence that Oxford Heights breached it s duty to treat the ice at the entryway to [the Holbrooks'] cond ominium," because they "presen ted no evidence regarding when the ice had formed or how long it had been on th e ground." Id. at ¶ 36. {¶ 54} Similar to the letter in Oxford Hts. , the handbook relied upon by the Smiths is simply informational and lacks t he requirements to form a contr act between them and appellants. The handbook therefore does not establish a mainte nance contract between the Smiths and appellants. Moreover, even if the handbook coul d be considered a contract between the parties, the Smiths failed to prove appellants brea ched it as the Smiths presented no evidence that the conditions were such as to invok e appellants' responsibilityWarren CA2021-07-065 CA2021-08-068

- 17 - to remove the ice upon which Terri slipped and fell. As the tr ial court stated, the "handbook provides only for the removal of snow above two inches and do n ot place any requirements on [appellants] to remove an accumulation of ice. The overwhel ming evidence at trial is that Terri slipped and fell on ice rather than snow. Thus, no breach of contract can be found

in this case." {¶ 55} Nevertheless, the Smiths assert that Oxford Hts. is distinguishable because Feldstein's testimony established that Ironwood had a duty to t reat the common areas for

ice and that Ironwood was aware of the water and ice issues in the area where Terri fell. However, the evidence in Oxford Hts. also indicated that the association was aware ice was forming on the ground from water dripping from icicles that hun g from the condominium's gutters. The association's awareness was based upon the husban d's multiple telephone calls to the association the prior winter. Oxford Hts. is therefore not distinguishable and is applicable here. {¶ 56} The Smiths' cross-assignment of error is overruled. {¶ 57} In light of the foregoing, we find that the trial court's judgm ent in favor of appellants on the Smiths' breach-of-contract was proper but tha t the trial court's judgment in favor of the Smiths on their negligence claim was improper. Accordingly, the trial court's July 20, 2021 Amended Final Judgment Entry granting judgment in favor of appellants on the Smiths' breach-of-contract claim is affirmed; however, the trial court's August 21, 2020 Final Judgment Entry and the court's July 20, 2021 Amended Fina l Judgment Entry granting judgment in favor of the Smiths on their negligence claim are r eversed and judgment on that claim is hereby entered on behalf of appellants. {¶ 58} Judgment affirmed in part and reversed in part.

S. POWELL and HENDRICKSON, JJ., concur.