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.
.]
WINCHELL ET AL., APPELLANTS, v. BURCH ET AL., APPELLEES.
[Cite as Winchell v. Burch,
1997-Ohio-122
.]
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.
__________________
{¶ 1} The appeal in case No. 96-2268 is dismissed, sua sponte, as having
been improvidently allowed.
{¶ 2} 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),
.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.
LUNDBERG STRATTON, J., dissents.
__________________
SUPREME COURT OF OHIO
LUNDBERG STRATTON, J., dissenting.
{¶ 3} 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.
__________________
2
