Polk v. Landings of Walden Condominium Association8/5/2005
{ } Appellants, Herbert A. Polk ("Herbert Polk") and Marilyn Polk, appeal from the July 30, 2004 judgment entry of the Portage County Court of Common Pleas, dismissing appellants' claims against defendants, The Landings of Walden Condominium Association ("the Landings"), Aurora Management, Inc. ("Aurora"), and Erie Insurance Company ("Erie"), and against appellees, Lumbermens Mutual Casualty Company ("Lumbermens"), and Cincinnati Insurance Company ("Cincinnati").
{ } On March 8, 2001, appellants filed a complaint against the Landings, Aurora, Erie, Lumbermens, and Cincinnati, alleging breach of contract against all five; breach of fiduciary duty, negligence, and failure to disclose presence of known toxic molds against the Landings and Aurora; and declaratory relief, lack of good faith, and reformation against Erie, Lumbermens, and Cincinnati. On May 9, 2001, Erie and appellee Cincinnati filed separate answers. On May 10, 2001, the Landings filed an answer. On May 22, 2001, appellee Lumbermens filed an answer. Aurora filed an answer on June 6, 2001.
{ } On December 17, 2001, appellants filed an amended complaint reasserting essentially the same claims against the Landings, Aurora, Erie, Lumbermens, and Cincinnati. On December 21, 2001, appellee Lumbermens filed an answer. On December 31, 2001, appellee Cincinnati filed an answer. Erie filed an answer on January 17, 2002. On March 18, 2002, the Landings and Aurora filed an answer.
{ } On August 20, 2003, appellee Cincinnati filed a motion for summary judgment pursuant to Civ.R. 56. On August 22, 2003, appellee Lumbermens and Erie filed motions for summary judgment. On November 14, 2003, appellants filed a combined motion for declaratory relief and brief opposing Erie's motion for summary judgment. Also, on November 14, 2003, appellants filed a combined motion for declaratory relief and brief opposing the motions for summary judgment of appellee Lumbermens and appellee Cincinnati.
{ } Pursuant to its March 29, 2004 judgment entry, the trial court granted Erie's motion for summary judgment.
{ } In its March 29, 2004 judgment entry, the trial court granted appellee Cincinnati's motion for summary judgment in part and denied it in part. The trial court granted appellee Cincinnati's motion for summary judgment regarding appellants' claims for breach of contract, and denied its motion with respect to loss or damage by mold to scheduled personal property, for lack of good faith, and for reformation. The trial court denied appellants' motion for declaratory relief. Upon reconsideration, and by agreement of the parties, the trial court indicated in its June 8, 2004 judgment entrythat appellants' reformation claim was moot.
{ } Also, on March 29, 2004, the trial court granted appellee Lumbermens's motion for summary judgment in part and denied it in part. The trial court granted appellee Lumbermens's motion for summary judgment regarding appellants' claims for breach of contract and denied its motion with respect to loss or damage by mold to personal property and for lack of good faith. The trial court denied appellants' motion for declaratory relief. Upon reconsideration, the trial court indicated in its June 8, 2004 judgment entry that appellants' claims were not timely filed and granted appellee Lumbermens's motion for summary judgment regarding appellants' claims for loss or damage by mold.
{ } The facts pertinent to this appeal are as follows: Appellants purchased their condominium in 1989, and obtained homeowner's insurance from appellee Lumbermens in 1990. According to appellant Herbert Polk's deposition, between 1990 to 1997, appellants experienced persistent water int
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