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Wayne Mutual Insurance Co. v. Parks9/13/2000
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Appellants, Wayne Mutual Insurance Company and James Chaney, appeal from the decision of the Summit County Court of Common Pleas granting summary judgment in favor of Appellees, Elizabeth Tullos and Shannon Simon. We reverse.
I.
On June 3, 1997, Elizabeth Tullos ("Tullos"), Shannon Simon ("Simon") and Anzia Parks ("Parks") entered into a written lease agreement with James Chaney ("Chaney") for an apartment located at 322 Torrey Street, Akron, Ohio. The term of the lease was for the 1997-98 school year. The apartment included a common living room, kitchen area and three separate bedrooms. The written lease agreement contained the following two clauses:
MULTIPLE OCCUPANCY: It is expressly understood that this agreement is between Lessor and Lessees whom have signed this document jointly and severally, and each and every Lessee shall be fully liable for timely payment of all installments and for full performance of all other provisions of this agreement.
*
DAMAGE OR DESTRUCTION: In case of damage or destruction *Lessee agrees to pay for all damages or destruction caused by Lessee or Lessee's invitees or guests.
On October 29, 1997, a fire occurred in the apartment. After returning home from class Tullos and Simon noticed a strange burning smell coming from Parks' bedroom. They opened the bedroom door and discovered the blaze. All attempts to extinguish the flames were unsuccessful until the fire department arrived. The cause of the fire is undisputed. Parks left a burning candle sitting on a box of Xerox paper that slowly burnt down and ignited the entire bedroom.
The fire caused severe heat, water and smoke damage. Wayne Mutual Insurance Company ("Wayne Mutual") insured Chaney's rental property. Wayne Mutual paid Chaney $20,183.56 for the property damages caused by the fire. Pursuant to the insurance agreement Wayne Mutual was subrogated to the claims of its insured in the amount paid.
On July 22, 1998, Wayne Mutual and Chaney filed a complaint against Tullos, Simon, and Parks. Wayne Mutual and Chaney sought recover on a theory of negligence, breach of contract and a violation of R.C. Chapter 5321, Ohio Landlord-Tenant Act. They argued all three tenants were jointly and severally liable for the fire damages. Tullos and Simon filed a joint answer, but Parks failed to respond. On November 30, 1998, the trial court rendered default judgment against Parks in favor of Wayne Mutual in the amount of $20,183.56 with 10% per annum interest and costs and judgment in favor of Chaney in the amount of $500 with 10% per annum interest.
On April 30, 1999, Wayne Mutual and Chaney moved for summary judgment. The basis of their motion was the language of the lease agreement and the tenant's obligations under R.C. 5321.05. In response, Tullos and Simon argued that joint and several liability was dependent on a tenant's knowledge of a co-tenant's negligence and alleged Tullos and Simon had no knowledge of Parks' negligent conduct. Their response also contained the following language " ontrary to Plaintiff's Motion, Defendants Tullos and Simon are not responsible for the negligence of Anzia Parks and are entitled to summary judgment." Besides the mere mention of entitlement to summary judgment, Tullos and Simon never moved for summary judgment on their own behalf.
On August 26, 1999, the court denied Wayne Mutual and Chaney's motion for summary judgment and granted a summary judgment in favor of non-movants, T
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