[This opinion has been published in Ohio Official Reports at 80 Ohio St.3d 1209.]

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), 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. __________________ 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