Winchell v. Burch - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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WINCHELL ET AL., APPELLANTS, V. BURCH ET AL., APPELLEES.
[Cite as Winchell v. Burch (1997), ___ Ohio St.3d ___.]
Appeal dismissed as improvidently allowed -- Appellate procedure -- Supreme
Court jurisdiction -- Actual conflict between appellate districts on rule of
law must exist before certification of conflict is proper.

(Nos. 96-2268 and 96-2334 -- Submitted September 23, 1997 -- Decided
November 5, 1997.)

APPEAL from and CERTIFIED by the Court of Appeals for Portage County,
No. 95-P-0150.
__________________

Rex W. Post, for appellants.

Mitchell L. Alperin, for appellees.

Brouse & McDowell and Jay P. Porter, urging affirmance for amicus
curiae, The Oaks of Aurora Condominium Association.
__________________

The appeal in case No. 96-2268 is dismissed, sua sponte, as having been
improvidently allowed.

There being no conflict, the cause in case No. 96-2334 is dismissed, sua
sponte, as having been improvidently certified. S.Ct.Prac.R. IV(2)(B); Whitelock
v. Gilbane Bldg. Co. (1993), 66 Ohio St.3d 594, 613 N.E.2d 1032.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.

LUNDBERG STRATTON, J., dissents.
__________________

LUNDBERG STRATTON, J., dissenting. I respectfully dissent and would find
that the addition of the Burches' new enlarged deck reduced the percentage of

ownership of common areas so as to require a unanimous vote of all unit owners to
amend the Declaration of Condominium Ownership in compliance with R.C.
5311.04(D). Therefore, I would find that the Second Appellate District's
interpretation of R.C. 5311.04(D) in Falls Homeowners' Assn., Inc. v. Aveyard
(July 27, 1994), Montgomery App. No. 14250, unreported, 1994 WL 409626, is
the correct interpretation and would reverse the judgment of the court of appeals in
this case.

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