Court of Appeals of Ohio, Twelfth District, Madison
STATE OF OHIO EX REL. FRANK LEE, et al., Relators-Appellants,
THE VILLAGE OF PLAIN CITY, Respondent-Appellee.
APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS Case No. CVH
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.
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
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
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
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. 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
13} Assignment of Error No. 1:
14} THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT ON THE LEES' TAKINGS/MANDAMUS CLAIM BASED ON THE
DEFENSE OF RELEASE.