[Cite as Roth v. Tokar Tower Office Condominiums Unit Owners' Assn. Inc., 2023-Ohio-279.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF LORAIN )

RANDOLPH R. ROTH

Appellant

v.

TOKAR TOWER OFFICE 

CONDOMINIUMS UNIT OWNERS' 

ASSOCIATION, INC.

Appellee

C.A. No. 21CA011811

APPEAL FROM JUDGMENT

ENTERED IN THE

COURT OF COMMON PLEAS

COUNTY OF LORAIN, OHIO

CASE No. 16CV188367

DECISION AND JOURNAL ENTRY

Dated: January 31, 2023

SUTTON, Judge. 

{¶1} Plaintiff-Appellant Randolph R. Roth appeals from the judgment of the Lorain 

County Court of Common Pleas. This Court affirms. 

I.

{¶2} In February 2016, Mr. Roth filed this action against Tokar Tower Office 

Condominiums Unit Owners’ Association, Inc., (“Tokar”). The following facts were alleged in 

Mr. Roth’s complaint. Mr. Roth owned a unit in a condominium office building located at 124 

Middle Avenue in Elyria, Ohio. The complaint alleged that on or about January 6, 2014, a suite 

Mr. Roth owned in that office building, Unit 203, was flooded. Mr. Roth alleged the unit flooded 

as a result of a burst pipe, and the burst pipe was a result of Tokar’s negligent maintenance of a 

pipe located in the common area of the office building. 
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{¶3} The complaint alleged that since the date of the flooding, Unit 203 has been unfit 

as an office or storage space. The complaint contained claims for relief seeking damages for 

negligence, breach of contract, breach of fiduciary duty, violation of statutory duty imposed under 

R.C. 5311.14, slander of title, and illegal certificate of lien. Punitive damages were also included 

as a claim for relief. 

{¶4} On March 4, 2019, Tokar filed a partial motion for summary judgment on the 

claims of negligence, breach of contract, breach of fiduciary duty, and violation of R.C. 5311.14. 

Mr. Roth filed a response in opposition to Tokar’s partial motion for summary judgment. On 

October 21, 2019, the trial court granted Tokar’s partial motion for summary judgment.1

{¶5} Mr. Roth appealed the judgment of the trial court granting partial summary 

judgment to Tokar, assigning one error for this Court’s review. 

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN GRANTING [] TOKAR’S [] MOTION 

FOR PARTIAL SUMMARY JUDGMENT. 

{¶6} In his sole assignment of error, Mr. Roth argues that the trial court erred in granting 

partial summary judgment in favor of Tokar on the counts of the complaint alleging negligence, 

breach of contract, breach of fiduciary duty, and violation of statutory duty imposed under R.C. 

5311.14. We disagree. 

1 The dissent notes that the motion for summary judgment “did not include all of the 

allegations or timeframes discussed in the complaint.” We note the reason for this is because 

Tokar’s motion was a partial motion for summary judgment, and the remaining claims not 

addressed in the motion for summary judgment were either dismissed by Mr. Roth or settled 

between the parties. 
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Standard of Review for Summary Judgment

{¶7} Appellate review of an award or denial of summary judgment is de novo. Grafton 

v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). As this Court has previously noted, “[a] de 

novo review requires an independent review of the trial court’s decision without any deference to 

the trial court’s determination.” (Emphasis added.) Goodrich Corp. v. PolyOne Corp., 9th Dist. 

Summit No. 27691, 2016-Ohio-1068, ¶ 12, quoting State v. Ross, 9th Dist. Summit No. 26694, 

2014-Ohio-2867, ¶ 33, quoting State v. Consilio, 9th Dist. Summit No. 27761, 2006-Ohio-649, ¶ 

4. See also State v. Trivette, 9th Dist. Wayne No. 10CA0048, 2011-Ohio-4297, ¶ 7. “Accordingly, 

this Court stands in the shoes of the trial court and conducts an independent review of the record.” 

McFarland v. Niekamp, Weisensell, Mutersbaugh & Mastrantonio, LLP, 9th Dist. Summit No. 

28462, 2017-Ohio-8394, ¶ 14. 

{¶8} Summary judgment is appropriate under Civ.R. 56 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) viewing the evidence most strongly in favor of the nonmoving party, reasonable 

minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. 

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977), citing Civ.R. 56(C). A court must 

view the facts in the light most favorable to the nonmoving party and must resolve any doubt in 

favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359 (1992). A 

trial court does not have the liberty to choose among reasonable inferences in the context of 

summary judgment, and all competing inferences and questions of credibility must be resolved in 

the nonmoving party’s favor. Perez v. ScrippsHoward Broadcasting Co., 35 Ohio St.3d 215, 218 

(1988).
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{¶9} Summary judgment consists of a burden-shifting framework. The movant bears the 

initial burden of demonstrating the absence of genuine issues of material fact concerning the 

essential elements of the non-moving party's case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). 

Specifically, the moving party must support the motion by pointing to some evidence in the record 

of the type listed in Civ.R. 56(C). Id. at 292–293. Once the moving party satisfies this burden, the 

non-moving party has a reciprocal burden to “set forth specific facts showing that there is a genuine 

issue for trial.” Id. at 293. The non-moving party may not rest upon the mere allegations or denials 

in his pleadings, but instead must submit evidence as outlined in Civ.R. 56(C). Id. at 293; Civ.R. 

56(E). Evidence specified in Civ.R. 56 (C) is “pleadings, depositions, answers to interrogatories, 

written admissions, affidavits, transcripts of evidence, and written stipulations of fact.” Civ.R. 

56(C).

Deposition of Jay Tokar

{¶10} Jay Tokar testified that he is the president and majority owner of the Tokar Tower 

Office Condominiums Unit Owners’ Association. Tokar has no employees and hires

subcontractors to carry out its contractual obligations to the owners in the association, namely the 

repair and maintenance of the common elements or areas of the building. Mr. Tokar, as president 

of the association and the majority owner, decides what repairs are made to the building. 

{¶11} Mr. Tokar’s deposition elucidates the relationship between Tokar and Simplified 

Facilities. Mr. Tokar testified that Tokar entered into a contract with Simplified Facilities to 

inspect the premises of the building and report any issues with the elements of the common area 

to him. Mr. Tokar testified to the services Simplified Facilities provided, how often Simplified 

Facilities was on the premises, the nature by which Simplified Facilities conducted its inspections, 

and the process that was utilized to identify any problems noted by Simplified Facilities. 
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{¶12} With regard to the pipe that burst, Mr. Tokar testified a standpipe runs through all 

floors of the building, carrying water for the sprinkler system and the water pump in the basement. 

That standpipe is considered a common element of the building. Additionally, the pipes to 

bathrooms located on the third and sixth floors of the building are common elements. The pipes 

within each of the individual units are not considered common elements of the building, and each 

individual owner is responsible for the maintenance and repair of those pipes. 

{¶13} Mr. Tokar could not recall which pipe burst first on the day in question. Mr. Tokar 

originally stated he thought a pipe burst on the fifth floor, but then said the second-floor pipe burst 

first and the fifth-floor pipe burst second. He did concede the pipe that burst first was in a common 

area of the building, and, therefore, Tokar would have been responsible for the maintenance of the 

pipe that burst. 

Deposition of Randolph Roth

{¶14} Mr. Roth is a practicing attorney who owned space inside of the Tokar office 

building on both the second and sixth floors, including Unit 203. He testified he arrived at the 

office on a very cold day in January of 2014 and discovered that Unit 203 was flooded. He 

conceded the weather was very unusual at the time. He said he did not stick around because there 

were people in the office building working on mitigating the damage caused by the burst pipe, and 

that Jay Tokar told him the burst pipe was located on the fifth floor. 

{¶15} When asked how Tokar was negligent in its maintenance of the pipes, Mr. Roth 

responded “[t]he only thing I know is that your client takes care of the pipes, the pipes got frozen 

and there was a flood.” He later added, “[t]he pipes got frozen because there was bad weather, 

and it was really cold, and they didn’t insulate the pipes.”
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{¶16} Mr. Roth also gave deposition testimony that indicated all of the damages he was 

seeking pertained to losses and damage to his own unit within the Tokar office building, Unit 203. 

Negligence Claim

{¶17} “In order to establish an actionable claim of negligence, a plaintiff must show the 

existence of a duty, a breach of that duty, and an injury that was proximately caused by the breach.” 

Reiger v. Giant Eagle, Inc., 157 Ohio St.3d 512, 2019-Ohio-3745, ¶ 10. “The failure to prove any 

one of these elements is fatal to a claim of negligence.” Id. “The ‘proximate cause’ of a result is 

that which in a natural and continued sequence contributes to produce the result, without which it 

would not have happened.” Waugh v. Chakonas, 9th Dist. Summit No. 25417, 2011-Ohio-2764, 

¶ 8, quoting Bell v. Babcock & Wilcox Co., 9th Dist. Summit No. 15887, at *2 (Sept. 1, 1993), 

quoting Piqua v. Morris, 98 Ohio St. 42, paragraph one of the syllabus (1918). In the absence of 

“circumstances [that] clearly indicate an obvious cause and effect relationship,” “the issue of 

proximate cause is ordinarily one for determination by the jury.” Id., citing Ornella v. Robertson, 

14 Ohio St.2d 144, 151 (1968).

{¶18} In its motion for summary judgment, Tokar argued the pipes bursting was an “act 

of God” that exempted Tokar from liability, and further argued Tokar had maintained the duty it 

owed to the owners in the association by contracting with Simplified Facilities, the company 

contracted for site management. And because Simplified Facilities provided no notice to Tokar of 

any problems with the pipes, or any notice that the pipes would be susceptible to bursting, Tokar 

was not negligent in its duty owed to the association. 

{¶19} In response, Mr. Roth argued Tokar failed to exercise reasonable care and diligence, 

therefore making the bursting of the pipes not excusable as an “act of God.” With his brief in 

opposition to Tokar’s motion for summary judgment, Mr. Roth provided an affidavit in which he 
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alleged, among other things, that Tokar “did not fulfill its duty to provide heat or insulation to the 

utility shaft or Suite 203 resulting in the pipes freezing” and as a result of this breach of duty, Mr. 

Roth’s property was damaged. Mr. Roth did not point to any evidence to support his allegations.

{¶20} A disaster, to be attributed to the act of God, must be due directly and exclusively 

to a natural cause, without human intervention; if human agency cooperated with the violence of 

nature or the force of the elements, it is not an act of God. Parasson Corp. v. Nicholas, 9th Dist. 

Summit No. 8756, 1978 WL 215208, *3, citing City of Piqua v. Morris, 98 Ohio St. 42 (1918). 

Further, to qualify as a an “act of God,” such disaster “could not have been reasonably anticipated, 

guarded against or resisted.” Anderson v. Schar, 9th Dist. Wayne No. 97CA0004, 1997 WL 

823970, *3. However, as this Court has previously noted, “[h]eavy snows and cold temperatures 

during our winters are not unforeseeable.” Gauvreau v. Bosak, 9th Dist. Medina No. 847, 1979 

WL 207651, *1 (May 31, 1979). Therefore, we find that Tokar is not entitled to summary 

judgment on the grounds that the cold temperatures were an “act of God” because the cold 

temperatures were not unforeseeable. 

{¶21} Alternatively, Tokar also argued in its motion for summary judgment that there was 

no breach in its duty to maintain the common areas because Tokar contracted with a third-party, 

Simplified Facilities, to periodically inspect the premises and report any issues to Tokar. In 

support of its argument, Tokar points to the deposition of Jay Tokar, permissible evidence under 

Civ.R. 56(C). Mr. Tokar testified that Simplified Facilities was on site several times a month to 

make inspections, including inspections of the pipes in the building. Mr. Tokar also testified that 

Simplified Facilities provided no prior notice to Tokar of any problems with the pipes before the 

incident. 
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{¶22} Here, after Tokar met its initial burden under Civ.R. 56, Mr. Roth had the burden 

of establishing that a genuine issue of material fact remained regarding whether Tokar had 

breached its duty to maintain the common area. In his very brief response in opposition, Mr. Roth 

executed and attached an affidavit in which he merely recited the claims he alleged in his 

complaint. While a non-moving party may rely upon a self-serving affidavit to satisfy their 

reciprocal burden under Dresher, the affidavit must “point[] to a genuine issue of material fact.” 

Estate of Henderson v. Henderson, 9th Dist. Lorain No. 18CA011301, 2018-Ohio-5264, ¶ 9, citing 

Carpenter v. New Age Logistics, 9th Dist. Summit No. 27689, 2016-Ohio-281, ¶ 22. Allowing a 

non-moving party to avoid summary judgment by submitting an affidavit containing nothing more 

than contradictions of the moving party’s claims, “could enable the nonmoving party to avoid 

summary judgment in every case, crippling the use of Civ.R. 56 as a means to facilitate ‘the early 

assessment of the merits of claims, pre-trial dismissal of meritless claims, and defining and 

narrowing issues for trial.’” Belknap v. Vigorito, 11th Dist. Trumbull No. 2003-T-0147, 2004-

Ohio-7232, ¶ 27, quoting C.R. Witham Enterprises v. Maley, 5th Dist. Fairfield No. 01 CA 54, 

2002-Ohio-5056, ¶ 24. 

{¶23} On this record, we find that Tokar met its initial burden under Civ.R. 56 so as to 

shift the burden to Mr. Roth, who then failed to meet his burden under Dresher to demonstrate that 

a genuine issue of material fact existed as to whether Tokar was negligent. Therefore, the trial 

court properly granted summary judgment in favor of Tokar with regard to the negligence claim. 

Breach of Contract Claim

{¶24} In order to establish an actionable claim for breach of contract, a party must 

establish the following elements of a breach of contract: the existence of an agreement, that the 

non-breaching party fulfilled its obligations under the agreement; a breach without legal 
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justification; and damages to the non-breaching party. Niederst v. Niederst, 9th Dist. Summit No. 

28846, 2018-Ohio-5320, ¶ 1. 

{¶25} The parties do not dispute that an agreement existed. The contract stated:

Article XV: Repair and Maintenance by the Association

15.01 Repair and Maintenance. The responsibilities of the Association for repair 

and maintenance of the Unit include:

(a) All Common Areas, including exterior walls and windows of the Building, 

excluding air-conditioning and heating systems serving Units, and that portion of 

the Common Areas housing said air-conditioning and heating systems. 

(b) All portions of Units which contribute to support of the Building, including the 

foundation, the main bearing walls, but excluding painting, wallpaper, decoration 

or other work on the interior surfaces of walls ceiling and floors of Units. 

(c) All essential damage caused by work done by the Association. 

(Emphasis added.)

{¶26} In its motion for summary judgment, Tokar argued there was no evidence in the 

record to support the conclusion that Tokar breached the contract. Tokar pointed to the deposition 

of Jay Tokar’s testimony that Tokar fulfilled its contractual duty for the inspection and 

maintenance of the common areas of the building by contracting with Simplified Facilities to 

inspect the premises of the building and report any issues with the elements of the common area 

to him. In his deposition, Mr. Tokar testified to the services Simplified Facilities provided, how 

often Simplified Facilities was on the premises, the nature by which Simplified Facilities 

conducted its inspections, and the process that was utilized to identify any problems noted by 

Simplified Facilities. 

{¶27} Mr. Roth’s response in opposition to Tokar’s motion for summary judgment did 

not rebut Tokar’s contention that it did not breach the contract because it contracted with 

Simplified Facilities. Mr. Roth merely recited the language in the bylaws that required Tokar to 
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repair and maintain the common areas. Additionally, Mr. Roth did not allege any failure by Tokar 

to repair any common areas; rather, he only asserted damage to his own unit. 

{¶28} On this record, we find Tokar met its initial burden under Civ.R. 56. However, Mr. 

Roth failed to then meet his reciprocal burden under Dresher to demonstrate that a genuine issue 

of material fact existed as to whether Tokar breached the contract. Therefore, the trial court 

properly granted summary judgment in favor of Tokar with regard to the breach of contract claim. 

Claim for Violation of Statutory Duty under R.C. 5311.14(A)

{¶29} R.C. 5311.14(A) states: 

Unless provided otherwise in the declaration, damage to or destruction of all or any 

part of the common elements of a condominium property shall be promptly repaired 

and restored by the board of directors of the unit owners association. The cost of 

the repairs and restoration shall be paid from the proceeds of insurance, if any, 

payable because of the damage or destruction, and the balance of that cost is a 

common expense.

{¶30} In its motion for summary judgment, Tokar asserted that it timely made repairs to 

all of the common areas damaged by the flood and noted that the damages Mr. Roth is seeking are 

for damages to his property within his own unit. In support of this assertion, Tokar pointed to the 

deposition testimony of Mr. Tokar, who in his deposition explained how he immediately called his 

insurance company to report the burst pipe on the morning it happened, and that by the end of the 

day a restoration company was on site remediating both the burst pipe and any damage water 

caused to the common areas of the building. 

{¶31} In response, Mr. Roth did not point to any common areas of the building that Tokar 

failed to promptly repair or restore. The affidavit Mr. Roth attached to his response in opposition 

to Tokar’s summary judgment motion alleged damages to Mr. Roth’s own unit and his personal 

property. It did not, however, point to any damage or destruction to the common areas that Tokar 

failed to repair or restore. 
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{¶32} On this record, we find Tokar met its initial burden, thus requiring Mr. Roth to 

demonstrate that a genuine issue of material fact existed as to whether or not Tokar violated R.C. 

5311.14(A) by failing to restore or repair any damage or destroyed common areas of the building. 

Mr. Roth did not meet that burden. Therefore, the trial court properly granted summary judgment 

in favor of Tokar with regard to the claim for a violation of R.C. 5311.14(A). 

Breach of Fiduciary Duty

{¶33} In order to prove a breach of fiduciary duty claim, the plaintiff must establish (1) 

the existence of a duty arising from a fiduciary relationship; (2) a failure to observe the duty; and 

(3) an injury resulting proximately therefrom. We begin by examining the nature of Tokar’s duty 

to maintain the common areas of the property. First, Article XV of the office association bylaws 

requires Tokar to provide for the maintenance and repair of all common areas of the building. 

Second, R.C. 5311.14(A) indicates that “[u]nless provided otherwise in the declaration, damage to 

or destruction of all or any part of the common areas and facilities of a condominium property 

shall be promptly repaired and restored by the manager or board of managers.” Thus, by contract 

and by statute, Tokar in the instant case was obligated to maintain and repair the common areas. 

As Mr. Roth asserts, both the declaration and the statute impose a fiduciary duty on Tokar to act 

in the best interests of the property owners. See Behm v. Victory Lane Unit Owners' Assn., Inc., 

133 Ohio App.3d 484, 487 (1st Dist.1999). 

{¶34} However, as stated above, Tokar, in its motion for summary judgment, pointed to 

evidence in the record sufficient to meet its initial burden. It pointed to evidence that it contracted 

with Simplified Facilities for the maintenance of the common areas, and by immediately 

contacting its insurance company to repair the common areas once the pipes burst, and therefore 
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fulfilled its duty both under contract and statute. Mr. Roth did not point to evidence in the record 

to rebut Tokar’s evidence that it met its duty. 

{¶35} Therefore, on this record, we find that Tokar met its initial burden, thus requiring 

Mr. Roth to meet his burden under Dresher to demonstrate that a genuine issue of material fact 

existed as to whether Tokar violated the fiduciary duty Tokar owed him. Mr. Roth did not meet 

that burden. The trial court properly granted summary judgment in favor of Tokar with regard to 

the alleged breach of fiduciary duty. 

{¶36} Mr. Roth’s assignment of error is overruled. 

III.

{¶37} Mr. Roth’s assignment of error is overruled. The judgment of the Lorain County 

Court of Common Pleas is affirmed. 

Judgment affirmed.

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 Lorain, 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.

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.
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Costs taxed to Appellant.

BETTY SUTTON

FOR THE COURT

TEODOSIO, P. J.

CONCURS.

CARR, J.

DISSENTING.

{¶38} I respectfully dissent from the judgment of the majority. I agree that the trial court 

did not err in concluding that Tokar was not entitled to summary judgment based upon the act-ofGod defense. However, the remainder of the trial court’s analysis evidences that it inappropriately 

shifted the initial burden to the non-movant, Mr. Roth. The trial court stated: 

While Plaintiff alleges that Tokar’s failure to properly insulate the pipes or heat the 

utility shaft caused the pipes to break during the cold weather, Plaintiff has 

produced no expert report or other evidence of causation. Plaintiff has failed to 

produce any evidence that Tokar was aware of any problem with the pipes, that the 

pipes were not properly insulated, before they burst or that Simplified Facilities 

made any recommendations that Tokar failed to follow. Nether the deposition 

testimony submitted pursuant to Civ.R. 56 nor Plaintiff’s affidavit which generally 

recites the language of the Complaint demonstrate that there are issues of fact in 

dispute on his claims for negligence, breach of contract, violation of statutory duty 

R.C. 5311.14(A) and breach of fiduciary duty. Defendant Tokar’s motion for 

summary judgment is granted. 

{¶39} Given the foregoing, “the trial court failed to properly consider [the] motion for 

summary judgment.” Lopez v. Hulburt, 9th Dist. Summit No. 28817, 2018-Ohio-2499, ¶ 9. I 

would sustain Mr. Roth’s assignment of error and remand the matter for the trial court to properly 

review the matter in the first instance. See id. at ¶ 10 (“This Court has repeatedly held that issues 

raised in summary judgment motions, but not considered by the trial court will not be decided by 
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this Court in the first instance.”) (Internal quotations and citations omitted). To do otherwise, 

“effectively depriv[es] the non-prevailing party of appellate review.” (Internal quotations and 

citations omitted.) Id. This is particularly important in this instance as the motion for summary 

judgment was extremely brief, did not include all of the allegations or timeframes discussed in the 

complaint,2and did not extensively elucidate Tokar’s relationship between it and the company it 

hired to do inspections or the extent of that company’s duties. 

APPEARANCES:

RANDOLPH R. ROTH, Attorney at Law, pro se, for Appellant.

MATTHEW M. DUFFY, Attorney at Law, for Appellee.

MOLLY A. STEIBER HARBAUGH, Attorney at Law, for Appellee.

2 For example, in the motion for summary judgment, Tokar asserted that it did not violate 

the duty in provision XX of the contract. However, the complaint alleged two provisions were 

violated, Articles XV and XX.