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State ex rel. Lee v. The Village of Plain City

Court of Appeals of Ohio, Twelfth District, Madison

December 11, 2017

STATE OF OHIO EX REL. FRANK LEE, et al., Relators-Appellants,
THE VILLAGE OF PLAIN CITY, Respondent-Appellee.


          Steve J. Edwards, for relators-appellants, Frank and Twila Lee.

          Mazanec, Raskin & Ryder Co., L.P.A., Michael S. Loughry, James A. Climer, Frank H. Scialdone, and Isaac Wiles Burkholder & Teetor, LLC, Paul Michael LaFayette, Two Miranova Place, for respondent-appellee.


          PIPER, J.

         {¶ 1} Frank and Twila Lee, relator-appellants, appeal from the decision of the Madison County Court of Common Pleas, which granted summary judgment in favor of respondent-appellee, the Village of Plain City, Ohio ("Plain City" or "the village"). For the reasons discussed below, this court affirms the lower court's decision.

         {¶ 2} This case involves a longstanding property dispute. In 2004 the Lees contracted with homebuilder Manor Homes, to build a residential home in the Darby Estates platted subdivision in Plain City. Prior to the purchase, the Lees reviewed a plot and grading plan depicting their lot. The plan depicted a 20-foot public utility easement, running north/south, on the western portion of the lot. The plan further depicted a pre-existing underground sewer line running north/south through the center of this easement and approximately 10 to 12 feet away from the foundation walls of the Lees' future home. The sewer line, which exclusively drained storm water, began at the street and led into a water detention pond immediately behind the home. Manor Homes allegedly advertised this pond as a "wetland preserve" and the Lees paid an upcharge of $5, 000 on the lot price for the benefit of its proximity.

         {¶ 3} During the home's construction, the parties discovered that the sewer line was not centered in the easement as depicted in the plan. Instead, the sewer ran within several feet of the foundation wall of the Lees' home. The county and village refused to grant the Lees an occupancy permit because of the home's proximity to the sewer.

         {¶ 4} Manor Homes, which had installed the sewer system in the subdivision at some earlier time, submitted a plan to relocate the sewer away from the home to Plain City. However, an engineer disapproved of this plan, and recommended the installation of a new sewer line. Following that recommendation, and with the approval of Plain City, Manor Homes installed a new sewer line.

         {¶ 5} Manor Homes disconnected the old sewer line and left it in the ground. The company installed underground dams and concrete collars to protect the Lees' home from water migration. These protective structures are located partially in the public utility easement and partially on the Lees' property. A representative of Plain City monitored Manor Homes' work.

         {¶ 6} In 2006, the Lees filed a complaint against Manor Homes in federal court ("the federal litigation"). The complaint alleged that Manor Homes, while constructing the Lees' home, improperly placed the home's foundation within three feet of a sewer line, which violated Plain City's building codes. The Lees further alleged that Manor Homes performed their contract obligations in an unworkmanlike manner, which resulted in cracks in the basement walls, failure of the yard to drain properly, and excessive water leakage into the new home. The Lees asserted numerous legal claims, including breach of contract, breach of warranties, and negligence. The Lees additionally raised a claim alleging that Manor Homes committed a trespass by "digging up the ground in plaintiffs' backyard and installing permanent concrete like structures underground as part of the public storm water system."

         {¶ 7} Manor Homes thereafter filed a third-party complaint against Plain City, arguing that to the extent the Lees recovered against it, Manor Homes was entitled to indemnification and contribution from the village. In 2009, the Lees, Manor Homes, and Plain City settled the federal litigation. As part of the settlement agreement, the parties agreed to a mutual release of claims.

         {¶ 8} In 2014, the Lees filed this action, asserting three claims against the village. First, the Lees pled an action in mandamus alleging that the village failed to enforce its building codes or ordinances with respect to the proximity of the home to the sewer line, that the placement of the sewer line and dam structures constituted an unconstitutional taking, and requesting that the court compel the village to initiate a proceeding to compensate the Lees.[1] Second, the Lees set forth a declaratory judgment claim asking the court to determine whether the Lees or the village owned the sewer lines and dams. Third, the Lees asserted a nuisance claim, which alleged that the water detention pond produced stagnant water, rotting vegetation, collected trash, and was a breeding ground for mosquitoes. The Lees asked for an injunction prohibiting the village from diverting storm water into the pond.

         {¶ 9} Plain City moved for summary judgment, arguing that the federal litigation settlement agreement precluded the Lees' claims. In addition, and with respect to the nuisance claim, Plain City argued that it did not own the detention pond and that the Lees failed to join the pond's owner, an indispensable party. In support of summary judgment, Plain City offered the affidavit of its administrator, Kevin Vaughn. The Lees moved to strike Vaughn's affidavit on various evidentiary grounds, including lack of personal knowledge and hearsay.

         {¶ 10} The trial court rendered judgment in favor of Plain City on all claims. The court found that the Lees released Plain City from "all claims related to the sewers and dams." The court specifically stated that the settlement agreement released Plain City from the mandamus and declaratory judgment claims. With respect to the nuisance claim, the court noted that Vaughn's affidavit averred that the village did not own the detention pond and that the pond was owned by a private citizen. The court found this portion of Vaughn's affidavit admissible under an exception to hearsay. The court then granted summary judgment in favor of Plain City on the nuisance claim.

         {¶ 11} Plain City did not assert a counterclaim asking for a declaratory judgment. Nevertheless, after dismissing the Lees' declaratory judgment action, the court commented on some of the issues raised in the request for declaratory judgment. The court stated that Plain City owned the sewer lines within its utility easement and that the abandoned sewer line was "of no consequence" to the Lees and "at best a technical trespass."

         {¶ 12} The Lees appeal, raising six assignments of error. This court will address certain assignments of error collectively.

         {¶ 13} Assignment of Error No. 1:


         {¶ 15} ...

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