Northwest Ohio Properties, Ltd. v. Lucas Cty. , 2018 Ohio 4239 ( 2018 )

[Cite as Northwest Ohio Properties, Ltd. v. Lucas Cty., 2018-Ohio-4239.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Northwest Ohio Properties, Ltd. Court of Appeals No. L-17-1190
Appellant/Cross-Appellee Trial Court No. CI0201602638
v.
County of Lucas, et al. DECISION AND JUDGMENT
Appellees/Cross-Appellant Decided: October 19, 2018
*****
Marvin A. Robon and Zachary J. Murry, for appellant/cross-appellee.
Julia R. Bates, Lucas County Prosecuting Attorney, John A. Borell
and Kevin A. Pituch, Assistant Prosecuting Attorneys, for appellees
Lucas County.
John J. McHugh, III, for appellee/cross-appellant Gulfstream
Development, Ltd.
*****
SINGER, J.
{¶ 1} Appellant, Northwest Ohio Properties, Ltd., and intervening
defendant/cross-appellant Gulfstream Development, Ltd. (“Gulfstream”), appeal the
June 26, 2017 judgment of the Lucas County Court of Common Pleas. For the following
reasons, we affirm the trial court’s judgment.
{¶ 2} Appellant sets forth two assignments of error:
1. The Trial Court committed reversible error by entering summary
judgment in favor of the Defendant-Appellee Lucas County and
Intervening Defendant/Cross-Appellant Gulfstream Development, Ltd.
2. The Trial Court committed reversible error by denying Plaintiff’s
Cross-Motion for Partial Summary Judgment when the undisputed material
facts of the case established that Plaintiff was entitled to summary
judgment on its ejectment claim and where Plaintiff’s ejectment claim is
not subject to Ohio’s political subdivision tort immunity statutory scheme.
Gulfstream sets forth two cross-assignments of error:
1. The trial court erred prejudicially in granting the Civ.R. 15(B)
pretrial motion to amend the pleadings to conform to the evidence without
affording the intervening defendant any opportunity to oppose the motion.
2. The trial court erred prejudicially in determining that the
intervening defendant was responsible for the payment of any and all tap
fees to be prospectively charged by Lucas County to plaintiff for its
connection to the sanitary sewer line.
2.
Facts
{¶ 3} Appellant owns over 60 acres of land at the corner of Crissey Road and
Central Avenue in Lucas County, Ohio. Near appellant’s land, Watermark Properties,
Ltd. V (“Watermark”), owned property which was being developed into Waterside
Sylvania, a residential subdivision (“the subdivision”). Ankney Enterprises, Inc. (“AE”)
acted as the manager of Watermark, and Duane Ankney was the managing member of
AE.
{¶ 4} Watermark’s property did not have access to sanitary sewer service, so
sewer lines needed to be constructed. It was proposed that one of these sewer lines, a
force main, would be installed underground on ten feet of appellant’s property. To that
end, on September 1, 2006, Marvin Robon, managing member of appellant, sent a letter
to “Duane Ankney, of Watermark,” which provided in pertinent part:
My understanding is that we can tap the force main, so I have asked
Colin Gil to install two (2) reducers which we will pay for * * *.
My understanding is a construction easement is needed to install the
line, so we agree to give you permission and Colin Gil permission to go on
the property for such installation provided there is no charge to us for
tapping into the force main.
Please sign a copy of this letter and return it to me.
{¶ 5} On the bottom of the letter, under the heading, “Acceptance and
Agreement,” it is stated:
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“Duane Ankney on behalf of the entity that will own the force main
hereby agrees and consents to the foregoing agreement.” Ankney signed
the letter on September 11, 2006.
{¶ 6} Colin Gil, president of Snowden Construction Company, Inc., contracted
with Ankney to install the force main across appellant’s property. Construction of the
sewer project commenced, with oversight by the office of the Lucas County Sanitary
Engineer (“Engineer”), and a sewer system including the force main was installed
connecting the subdivision to a newly constructed pumping station.
{¶ 7} Robon, in an October 5, 2007 letter, advised the Engineer of appellant’s
agreement with Ankney. Robon also informed the Engineer that “[m]y understanding is
that this force main and pumping station are going to be dedicated to the county and we
want you to be aware that we expect a free tap in the future.”
{¶ 8} The Engineer, in his October 10, 2007 letter in response to Robon, initially
denied Robon’s demand of “free taps,” as no connections directly to the force main had
been approved by the Engineer’s office. Later, however, the Engineer agreed to allow
two taps into the force main, in accordance with the September 2006 agreement, once
appellant determined how its property would be developed.
{¶ 9} In 2009, Huntington National Bank (“HBN”) took a cognovit judgment
against Watermark, and sought to foreclose on a mortgage granted to Watermark.
Watermark was placed into receivership.
4.
{¶ 10} In 2012, HBN sold and assigned its judgment against Watermark to
Waterside Sylvania, LLC (“WSLLC”). WSLLC then sought to foreclose on
Watermark’s mortgage. In April 2013, all matters affecting title to the Watermark
property were settled. Thus, WSLLC became the new owner of the subdivision property,
and Gulfstream became the new developer of the subdivision, with Ankney as the
managing member of Gulfstream.
{¶ 11} Since the completion of the sewer project in 2007, the Lucas County
defendants have operated and maintained the sewer system, but have not accepted
ownership of it. Moreover, appellant has never tapped into the force main on its
property. However, the subdivision utilizes the sanitary sewer and the Lucas County
defendants collect sewage fees from residents of the subdivision.
Lawsuit
{¶ 12} On May 3, 2016, appellant filed its complaint against the County of the
Lucas, Lucas County Board of County Commissioners, Lucas County Sanitary Engineer,
Lucas County Engineer, Lucas County Plan Commission, Lucas County Recorder, The
Hartford Financial Services Group, Inc., and Huntington Bancshares, Inc. Appellant set
forth six claims in the complaint relating to the force main sewer line across its property:
trespass; injunction; unjust enrichment/compensation; tortious interference with business
relations; conspiracy; and declaratory judgment on bonds.
{¶ 13} On August 10, 2016, appellant voluntarily dismissed Huntington
Bancshares, Inc. as a defendant.
5.
{¶ 14} On August 12, 2016, appellant filed an amended complaint which
incorporated all of the causes of action in its original complaint and added/substituted
HBN as a defendant, and added three causes of action relating to the force main on its
property: violation of constitutional rights; ejectment; and breach of contract.
{¶ 15} The Lucas County defendants filed a motion for judgment on the pleadings
moving to dismiss all nine of the claims alleged against them.
{¶ 16} On November 3, 2016, Gulfstream filed a motion to intervene as a
defendant; the motion was granted. On November 4, 2016, Gulfstream filed its answer to
appellant’s amended complaint.
{¶ 17} On November 14, 2016, appellant voluntarily dismissed The Hartford
Financial Services Group, Inc., and HBN as defendants, and dismissed the conspiracy
and declaratory judgment on bonds claims.
{¶ 18} On March 17, 2017, appellant filed a motion for partial summary judgment
on its ejectment claim.
{¶ 19} On March 24, 2017, the trial court issued a judgment granting, in part, the
Lucas County defendants’ motion for judgment on the pleadings. The court found the
Lucas County defendants were immune from suit with respect to the tortious interference
with business relations claim, as well as any damage claim associated with the
trespassing and ejectment claims. In addition, the court dismissed the claim for
injunction, and dismissed all claims against the County of Lucas.
6.
{¶ 20} On April 21, 2017, the Lucas County defendants filed a motion for
summary judgment with respect to appellant’s remaining claims of trespass, unjust
enrichment, violation of constitutional rights, ejectment and breach of contract.
{¶ 21} On May 19, 2017, appellant voluntarily dismissed its unjust enrichment
claim, violation of constitutional rights claim and breach of contract claim.
{¶ 22} On June 21, 2017, appellant filed a motion to amend pleadings to conform
to the evidence. Appellant noted “Gulfstream has asserted an interest in the sanitary line
and has joined the claims of the Lucas County Defendants that an easement by estoppel
exists across [appellant’s] property.” Appellant sought to amend the pleadings to
“impute [appellant’s] claims against the Lucas County Defendants to Gulfstream as
well.” And, “any order to ejectment and/or writ of possession issued by the Court
regarding the sanitary sewer line should apply with equal force to both the Lucas County
Defendants and Gulfstream.” Appellant’s motion to amend pleadings was granted.
{¶ 23} On June 26, 2017, the trial court issued a judgment granting the Lucas
County defendants’ motion for summary judgment with respect to appellant’s trespass
and ejectment claims, and denying appellant’s motion for partial summary judgment on
its ejectment claim.
{¶ 24} The court found appellant “entered into an enforceable agreement with
Watermark to grant Watermark an easement for the purpose of installing a sewer line on
its property and that agreement has not been breached * * * [and] the terms [of the
agreement] are clear and unambiguous.” The court also stated “[t]he term ‘no charge’ [in
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the agreement] clearly means that plaintiff will not be charged for tapping into the force
main * * *. The court reads this provision to mean that any charges were to be paid by
Watermark, and now must be paid by Gulfstream * * *.” The court further found
appellant “has failed to establish that defendants do not have a legal right to have the
sewer line on the property.”
{¶ 25} The court, in order to fulfill the terms of the contract, ordered appellant “to
specifically perform its contracted duty to provide an easement for the sewer.” The court
observed “Gulfstream has raised the defense that plaintiff ‘entered into an agreement
permitting and consenting to the construction of the sanitary sewer across its property,
which agreement constitutes * * * a de facto easement.’” This defense was treated as a
counterclaim, pursuant to Civ.R. 8(C), as the issue had been briefed by the parties, and
justice so required.
{¶ 26} Appellant appealed and Gulfstream filed a cross-appeal.
Analysis
Appellant’s First Assignment of Error
{¶ 27} At the outset we note that appellant’s only remaining causes of action are
for trespass, where appellant pursues removal or severance of the force main, and
ejectment, where appellant seeks a writ of possession and removal of the force main.
{¶ 28} Appellant contends the trial court erred by entering summary judgment for
the Lucas County defendants and Gulfstream. Appellant argues “there can be no dispute
that neither Defendant Gulfstream nor Lucas County have any express easement on, or
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right to use, Plaintiff’s property.” Appellant also asserts the September 2006 letter
agreement cannot act as a conveyance of easement rights as it did not conform to the
requirements of R.C. 5301.01. Appellant further contends it was denied the benefit of the
bargain in 2006, so no easement or right to use or possess its property was ever conveyed.
Summary Judgment Standard
{¶ 29} We review a trial court’s summary judgment decision on a de novo basis.
Grafton v. Ohio Edison Co., 77 Ohio St. 3d 102, 105, 671 N.E.2d 241 (1996).
Accordingly, we undertake our own independent examination of the record and make our
own decision as to whether the moving parties are entitled to summary judgment. Dupler
v. Mansfield Journal, 64 Ohio St. 2d 116, 119-120, 413 N.E.2d 1187 (1980).
{¶ 30} Pursuant to Civ.R. 56, the moving party bears the initial burden of
informing the trial court of the basis for the motion and presenting proper evidence in
support thereof. Dresher v. Burt, 75 Ohio St. 3d 280, 293, 662 N.E.2d 264 (1996). If the
movant satisfies its initial burden, the burden then shifts to the nonmovant to present
specific facts demonstrating the existence of a genuine issue. Id. The nonmovant cannot
avoid summary judgment by submitting an unsupported, self-serving affidavit. Bank of
New York v. Barclay, 10th Dist. Franklin No. 03AP-844, 2004-Ohio-1217, ¶ 13.
{¶ 31} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact * * * show that there is no genuine issue as to
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any material fact and that the moving party is entitled to judgment as a matter of law.”
Civ.R. 56(C).
Lucas County Defendants
{¶ 32} In the trespass claim set forth in the complaint, appellant alleged “Lucas
County should have ensured that all easements and other permissions necessary for the
sanitary sewer construction at issue were obtained and perfected before allowing it to be
utilized, and [Lucas County] failed in its statutory obligations * * *.” Appellant further
alleged the defendants “have intentionally, or at least negligently, interred with
[appellant’s] property rights and are committing regular and continuing trespasses upon
[appellant’s] real property by pumping sewage at least twice weekly through [appellant’s]
property.”
{¶ 33} In appellant’s ejectment claim, appellant alleged the defendants “are in
possession of the subject real property by virtue of their--at minimum--tacit acceptance,
operation, and maintenance of the sewer lines traversing [appellant’s] property.”
Appellant further alleged the “defendants’ conduct has acted to unlawfully deprive
[appellant] of his right to possess its property, including specifically the area effected by
the sanitary sewer line(s) that is the subject of this lawsuit.”
{¶ 34} In their motion for summary judgment, Lucas County defendants contend
in order for appellant “[t]o establish its trespass and/or ejectment claims, there must be
proof that one or more of the Lucas County defendants, ‘without authority or privilege,
physically invaded or unlawfully entered its property.’” Lucas County defendants assert
10.
“[t]he undisputed facts * * * demonstrate that there is an express agreement for an
easement specifically for the installation of the sewer line * * * and that, at a minimum,
an easement by estoppel exists regarding the construction and use of the sewer line * * *
so that, to the extent that the Lucas County defendants have entered [appellant’s]
property, they have had permission to do so.”
{¶ 35} Lucas County defendants rely on the September 2006 letter agreement
between appellant and Ankney for an easement for the sewer line on appellant’s property,
and maintain they have entered appellant’s property pursuant to this easement. Lucas
County defendants also submit that all parties have proceeded under appellant’s
representations that an easement existed. Lucas County defendants observe appellant
sent the Engineer a letter “informing him of the consent it had given the developer for an
easement on its property for the sewer line in question.” Thus, appellant recognized that
a sewer line was being constructed on its property, and acknowledged the agreement with
Ankney for an easement. Lucas County defendants note the Engineer will allow
appellant to have two taps into the force main after appellant determines how it will
develop its property.
Trespass
{¶ 36} “‘A common-law tort in trespass upon real property occurs when a person,
without authority or privilege, physically invades or unlawfully enters the private
premises of another whereby damages directly ensue * * *.’” (Citation omitted.) Apel v.
Katz, 83 Ohio St. 3d 11, 19, 697 N.E.2d 600 (1998). “[A] cause of action in trespass will
11.
not lie when the purported trespasser holds an easement to the property on which he or
she is purportedly trespassing.” Bayes v. Toledo Edison Co., 6th Dist. Lucas Nos. L-03-
1177, L-03-1194, 2004-Ohio-5752, ¶ 68.
{¶ 37} An easement is an interest in the land of another, which entitles the
easement holder to limited use of that land. Id. An express easement must be part of a
deed or lease or other conveyance and must be recorded in conformity with R.C. 5301.01.
Schmiehausen v. Zimmerman, 6th Dist. Ottawa No. OT-03-027, 2004-Ohio-3148, ¶ 20.
“An easement by estoppel may be found when an owner of property misleads or causes
another in any way to change the other’s position to his or her prejudice.” Id. at ¶ 21.
“‘Where an owner of land, without objection, permits another to expend money in
reliance upon a supposed easement, when in justice and equity the former ought to have
disclaimed his conflicting rights, he is estopped to deny the easement.’” (Citation
omitted.) Id.
{¶ 38} Here, our de novo review of the record shows there is no evidence of an
express easement between appellant and any party with respect to the force main.
However, the evidence in the record does support a finding that an easement by estoppel
exists.
{¶ 39} The record reveals it is undisputed that appellant and Ankney entered into
an agreement in September 2006, where appellant acknowledged an easement was
needed to install the force main and Ankney was granted permission to go on appellant’s
property to install the force main so long as appellant could tap into the force main at no
12.
cost. Ankney proceeded to have the force main installed on appellant’s property, without
objection from appellant, and at no cost to appellant. The force main has been in use
since 2007, and has been operated and maintained by the Lucas County defendants.
{¶ 40} While appellant asserts the agreement was breached because Ankney and
his contractor, Gill, knew at the time the force main was installed on appellant’s property
that Lucas County would not allow any taps into the force main, there is no evidence in
the record to support this assertion, save for Robon’s self-serving, uncorroborated
statements which are not sufficient to demonstrate a material issue of fact precluding
summary judgment. In fact, the evidence does show that appellant relied on the validity
of the agreement, as Robon advised the Engineer of the agreement with Ankney, and
informed the Engineer that “[m]y understanding is that this force main and pumping
station are going to be dedicated to the county and we want you to be aware that we
expect a free tap in the future.” While the Engineer initially balked at Robon’s demand,
the Engineer has agreed to allow two taps into the force main once appellant has
determined how it will develop its property.
{¶ 41} Appellant also argues the agreement was breached because it was not
provided with two taps when the force main was installed “which served as the basis for
the September 1, 2006 Letter Agreement.” However, upon review, we find there is no
time limit or time frame set forth in the agreement for appellant to tap the force main.
Therefore, this is not evidence that the agreement was breached.
13.
{¶ 42} Based upon the foregoing evidence and the record as a whole, we find the
September 2006 agreement is valid, has not been breached and is enforceable. We
further find an easement by estoppel exists, in favor of the Lucas County defendants, who
have operated and maintained the force main, and who changed their position regarding
taps into the force main and have allowed two taps for appellant. Thus, the Lucas County
defendants have had permission to use and maintain the force main on appellant’s
property and have committed no trespass. Accordingly, the trial court properly found the
Lucas County defendants were entitled to judgment on appellant’s trespass claim.
Ejectment
{¶ 43} An action in ejectment is the proper remedy against one who is wrongfully
in possession of real property. Turnbull v. City of Xenia, 80 Ohio App. 389, 392, 69
N.E.2d 378 (2d Dist.1946). R.C. 5303.03, which codifies the common law action in
ejectment, states in pertinent part:
In an action for the recovery of real property, it is sufficient if the
plaintiff states in his petition that he has a legal estate therein and is entitled
to the possession thereof * * * and that the defendant unlawfully keeps him
out of the possession.
{¶ 44} Here, for the reasons set forth above, we find the Lucas County defendants
have committed no trespass on appellant’s property. Therefore, we find the Lucas
County defendants are not wrongfully in possession of appellant’s property or unlawfully
14.
keeping appellant out of possession. Accordingly, the trial court properly found the
Lucas County defendants were entitled to judgment on appellant’s ejectment claim.
Gulfstream
{¶ 45} Although appellant argues the trial court entered summary judgment in
favor of Gulfstream, the court did not do so. Rather, the court treated Gulfstream’s
defense, that the 2006 letter agreement constituted a de facto easement, as a counterclaim
pursuant to Civ.R. 8, and ordered appellant “to specifically perform its contracted duty to
provide an easement for the sewer” to Gulfstream to fulfill the terms of the agreement.
Civ.R. 8
{¶ 46} Civ.R. 8(C) provides “[w]hen a party has mistakenly designated a defense
as a counterclaim or a counterclaim as a defense, the court, if justice so requires, shall
treat the pleading as if there had been a proper designation.”
Specific Performance
{¶ 47} “Specific performance of contracts is a matter resting in the sound
discretion of the court, not arbitrary, but controlled by principles of equity, on full
consideration of the circumstances of each particular case.” Spengler v. Sonnenberg, 88
Ohio St. 192, 203, 102 N.E. 737 (1913).
{¶ 48} A reviewing court will not disturb a lower court’s action in granting or
denying specific performance unless it appears from the record there has been an abuse of
discretion. Sandusky Properties v. Aveni, 15 Ohio St. 3d 273, 275, 473 N.E.2d 798
(1984). An abuse of discretion is “more than an error of law or judgment; it implies that
15.
the court's attitude is unreasonable, arbitrary or unconscionable.” Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 49} The following factors are generally prerequisites to the award of specific
performance:
“‘The contract must be concluded, certain, unambiguous, mutual,
and upon a valuable consideration; it must be perfectly fair in all its parts;
free from any misrepresentation or misapprehension, fraud or mistake,
imposition or surprise; not an unconscionable or hard bargain; and its
performance not oppressive upon the defendant; and finally, it must be
capable of specific execution through a decree of the court.’” (Citation
omitted.) Fine v. U.S. Erie Islands Co., 6th Dist. Ottawa No. OT-07-048,
2009-Ohio-1531, ¶ 30.
{¶ 50} Here, the record shows appellant and Ankney entered into an agreement in
2006, where appellant acknowledged an easement was needed to install the force main,
and appellant granted Ankney permission to go on its property for the installation,
provided there was no charge for appellant to tap into the force main. At the time the
agreement was entered, Ankney was AE’s managing member and AE acted as the
manager of Watermark, the owner of the subdivision property. Currently, WSLLC is the
owner of the subdivision property, Gulfstream is the subdivision’s developer and Ankney
is the managing member of Gulfstream. Gulfstream has repeatedly represented that it
will honor the commitment made by Ankney.
16.
{¶ 51} Upon review, the record demonstrates, in accordance with the agreement,
Ankney was permitted to and did go on appellant’s property to have the force main
installed, and that appellant can tap into the force main at no charge after it determines
how it will develop its property. However, appellant has refused to grant Gulfstream an
easement.
{¶ 52} The trial court found the 2006 agreement was enforceable and its terms
were clear and unambiguous. The court ordered appellant to specifically perform the
agreement and provide Gulfstream with an easement.
{¶ 53} Upon review, we find the agreement is valid and its terms certain, clear and
fair. We also find Ankney performed under the agreement, but appellant did not. Thus,
we find the trial court did not abuse its discretion by ordering appellant to specifically
perform its obligation under the agreement and provide Gulfstream with an easement.
{¶ 54} In light of the foregoing, appellant’s first assignment of error is not well-
taken.
Appellant’s Second Assignment of Error
{¶ 55} Appellant argued it was entitled to summary judgment against the Lucas
County defendants and Gulfstream on its ejectment claim. For the reasons set forth
above, we find neither Gulfstream nor the Lucas County defendants have committed a
trespass on appellant’s property. Therefore, neither Gulfstream nor the Lucas County
defendants are wrongfully in possession of appellant’s property or unlawfully keeping
appellant out of possession. Accordingly, the trial court properly found appellant’s
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ejectment claim fails. In light of the foregoing, appellant’s second assignment of error is
not well-taken.
Gulfstream’s First Cross-Assignments of Error
{¶ 56} Gulfstream argues the trial court erred in granting appellant’s Civ.R. 15(B)
pretrial motion to amend the pleadings to conform to the evidence without affording
Gulfstream the opportunity to oppose the motion.
{¶ 57} Civ.R. 15(B) provides in relevant part:
When issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects as if they
had been raised in the pleadings. Such amendment of the pleadings as may
be necessary to cause them to conform to the evidence and to raise these
issues may be made upon motion of any party at any time, even after
judgment.
{¶ 58} Civ.R 6(C) states in relevant part:
Unless otherwise provided by these rules, by local rule, or by order
of the court, a response to a written motion, other than a motion that may be
heard ex parte, shall be served within fourteen days after service of the
motion.
18.
{¶ 59} Likewise, Loc.R. 5.04(D) of the Court of Common Pleas of Lucas County,
General Division, provides: “An opposing party may serve and file a memorandum in
opposition to any motion. The filing shall be made within 14 days after service.”
{¶ 60} The premise underlying Civ.R. 6(C) and the local rule is that the party
opposing the motion must have sufficient notice and the opportunity to respond in order
to avoid undue prejudice. See Ohio Metal Servs., LLC v. All-In Metals, LLC, 9th Dist.
Summit Nos. 26240, 26625, 2013-Ohio-2174, ¶ 26.
{¶ 61} Here, the record shows that on June 21, 2017, appellant filed its motion to
amend pleadings to reflect that “if the court were to determine that Gulfstream possessed
an ownership interest in the sanitary line - that [appellant’s] ejectment claim should apply
with equal force to Gulfstream * * * as the successor in interest to the original developer
* * *.” And, “[t]o date Gulfstream has not asserted that it is the proper owner of the
sanitary line * * * [h]owever, Gulfstream has asserted an interest in the sanitary line * * *
[claiming] an easement by estoppel exists.”
{¶ 62} On June 23, 2017, the trial court granted appellant’s motion to amend “to
add * * * Gulfstream * * * as an additional defendant to which plaintiff’s ejectment claim
applies.”
{¶ 63} Upon review, we find the trial court ruled on appellant’s motion two days
after the motion was filed, which clearly did not allow Gulfstream the time allowed by
rule to file an opposition to the motion. However, Gulfstream had already intervened as a
defendant in the action and defended itself, including filing an answer to appellant’s
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complaint and denying appellant’s claims. Thus, although Gulfstream was not given the
opportunity to object to appellant’s motion to amend, we find that Gulfstream was not
prejudiced. Accordingly, Gulfstream’s first cross-assignment of error is not well-taken.
Gulfstream’s Second Cross-Assignments of Error
{¶ 64} Gulfstream contends the trial court erred in issuing an advisory
determination that Gulfstream would, in the future, be responsible for the payment of any
and all tap fees to be prospectively charged by Lucas County for appellant’s connection
to the sanitary sewer line. Gulfstream argues “[i]t has not been alleged and has never
been admitted that [WSLLC] has any ownership interest in or control of [Gulfstream], or
that [Gulfstream] has any ownership interest in or control over [WSLLC]. Gulfstream
further contends it and WSLLC are “two entities [which] are factually and legally distinct
* * * [and] [n]either one is a predecessor or successor to the other.”
{¶ 65} The trial court, in its opinion, found the terms of the 2006 agreement
between appellant and Ankney were clear and unambiguous, and the term “‘no charge’
clearly means [appellant] will not be charged for tapping into the force main” and “any
charges were to be paid by Watermark, and now must be paid by Gulfstream.”
{¶ 66} The standard of review for contract issues is whether the trial court erred as
a matter of law. Continental W. Condo. Unit Owners Assn. v. Howard E. Ferguson, Inc.,
74 Ohio St. 3d 501, 502, 660 N.E.2d 431 (1996). Thus, we must decide whether the trial
court’s judgment “is based on an erroneous standard or a misconstruction of the law.” Id.
20.
{¶ 67} Construction of a written agreement is a matter of law for the court.
Alexander v. Buckeye Pipe Line Co., 53 Ohio St. 2d 241, 374 N.E.2d 146 (1978),
paragraph one of the syllabus. A contract must be viewed as a whole, and the intent of
the parties is reflected by the language used. Kelly v. Med. Life Ins. Co., 31 Ohio St. 3d
130, 509 N.E.2d 411 (1987), paragraph one of the syllabus. The words in a contract are
given their plain and ordinary meaning unless “manifest absurdity results, or unless some
other meaning is clearly evidenced from the face or overall contents of the instrument.”
Alexander at paragraph two of the syllabus. In addition, the court must give effect to the
words used in the contract, and not delete or insert words. Cleveland Elec. Illum. Co. v.
Cleveland, 37 Ohio St. 3d 50, 53, 524 N.E.2d 441 (1988).
{¶ 68} As set forth above, we found the agreement is valid and its terms clear. As
such, the agreement must be enforced and not interpreted. The agreement provides that
Ankney was granted permission by appellant to install the force main on appellant’s
property, provided there was no charge for appellant to tap into the force main. While
argument was made that “no charge” meant the developer’s fees will be waived and any
charges due to Lucas County will still be due by appellant, that language was not used in
the agreement, and cannot be read into the agreement now. Thus, the trial court did not
err when it found “‘no charge’ clearly means [appellant] will not be charged for tapping
into the force main.”
{¶ 69} Moreover, the trial court did not err in finding that “any charges were to be
paid by Watermark, and now must be paid by Gulfstream.” The record shows Ankney
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entered into the agreement when he was the managing member of AE, which acted as the
manager of Watermark, the subdivision property owner. Now, Ankney is the managing
member of Gulfstream, the developer of the subdivision, and Gulfstream has consistently
confirmed that it will honor the commitment made by Ankney in the agreement. Since it
has been determined, as a matter of law, that no charge to tap means no charge to
appellant whatsoever, we find the trial court did not err by ordering Gulfstream to pay
any and all charges for appellant to tap into the force main. Accordingly, Gulfstream’s
second cross-assignment of error is not well-taken.
{¶ 70} The judgment of the Lucas County Court of Common Pleas is affirmed.
Appellant and Gulfstream are ordered to split the costs of this appeal, pursuant to App.R.
24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
22.