Brady v. Haines

[Cite as Brady v. Haines, 2021-Ohio-4565.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
JUDITH R. BRADY, AS TRUSTEE
OF THE BRADY FAMILY REVOCABLE CASE NO. 9-21-09
LIVING TRUST, DATED APRIL 27, 2016,
PLAINTIFF-APPELLANT,
v.
JAMIE L. HAINES & MECHELE R. HAINES, OPINION
DEFENDANTS-APPELLEES.
Appeal from Marion County Common Pleas Court
General Division
Trial Court No. 19 CV 187
Judgment Affirmed
Date of Decision: December 27, 2021
APPEARANCES:
Todd A. Anderson for Appellant
Donald K. Wick for Appellees
Case No. 9-21-09
WILLAMOWSKI, P.J.
{¶1} Plaintiff-appellant Judith R. Brady, as Trustee of the Brady Family
Revocable Living Trust dated April 27, 2016 (“Brady”) brings this appeal from the
judgment of the Court of Common Pleas of Marion County denying her request for
an injunction and awarding damages to the trust. On appeal, Brady claims that the
trial court erred by denying the injunction requiring defendants-appellees Jamie L.
Haines and Mechele R. Haines (collectively known as “the Haines”) to remove the
garage encroachment. For the reasons set forth below, the judgment is affirmed.
{¶2} This case arises out of the construction of a building in 2010 and the
installation of a concrete driveway in 2016. Brady owns undeveloped agricultural
real property that is next to real property owned by the Haines. In 2010, the Haines
sought a zoning variance to allow them to construct a garage closer to the property
line than the township’s required five foot set-back. The Township Board granted
the variance upon motion “to approve placement of a 24x30 accessory building with
foundation at least 2’ away from the north property line.” Ex. 1. The variance
required that the zoning inspector verify that the foundation was at least 2’away
from the north property line. Ex. 1. Bradford Brady, who owned the adjacent
property to the north at that time was present at the zoning board’s meeting and
indicated that he had no problem with the variance being granted. Ex. 1. Jamie
Haines used the stakes placed on the property line from a prior survey and ran string
between them to mark the property line and the placement of the building. Tr. 139.
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Both Bradford Brady and the zoning inspector observed the placement and the
zoning inspector approved the construction in 2010. Tr. 139. No concerns were
ever raised outside of one vague Facebook comment several years later. Tr. 140.
{¶3} In 2016, the Haines added a concrete drive to the building. The
driveway was placed on top of the gravel driveway that had previously been in place
for years and was known to abut Brady’s property. As there is no setback
requirement for driveways, this was not an issue. Tr. 15. After Bradford’s death in
2015, Brady decided to reestablish the fence line between the properties and had a
survey conducted by Steven Fox (“Fox”) in 2018. Tr. 27, 111. Fox testified that the
survey showed the corner of the building encroached across the property line by
0.1’ for a distance of 0.51’ with the overhang. Tr. 32. The actual foundation
encroached across the
property line by 1.25”. Tr.
33. At the most extreme
point, the overhang
encroached on the
property by 12”, but
tapered down to no
encroachment due to the
angles. Tr. 44.
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{¶4} The survey also showed that in addition to a lead pipe that was found
to mark the property line, an iron pin from another survey was found 1.35’ from the
actual property line. Tr. 30, Ex. 7. Fox indicated that this second pin was likely
placed in error and could be partially responsible for the problems. Tr. 30-32, 46.
When questioned by the trial court, Fox testified that in that area, an acre of land
was selling between $6,000 and $8,000. Tr. 46.
{¶5} As Brady was installing a fence, a dispute arose about where the
property line actually was. Tr. 113, 145. The Haines contacted an attorney who
sent a letter to Brady. Brady then contacted her attorney. On March 12, 2019, Brady
filed a complaint alleging 1) violation of the zoning code, 2) trespass, and 3)
obstruction of line fence work. Doc. 1. Brady sought an injunction to remediate
the improper encroachment, damages for trespass, court costs, and attorney fees.
Doc. 1. The Haines filed an answer to the complaint denying the violations and
setting forth various defenses.1 Doc. 6.
{¶6} On December 3, 2020, the parties entered into a partial stipulation that
the building was in violation of the zoning code and that the building and driveway
had encroached onto Brady’s land. Doc. 54. A bench trial was held before the
magistrate on that same day. Doc. 57. The magistrate acknowledged the stipulation
as to liability and noted that the only issue before it was damages. Tr. 5-7. At the
1
The Haines filed a cross-complaint alleging that the surveyor who conducted the 2005 survey upon which
they relied had failed to follow industry standards, but the cross-complaint was dismissed on summary
judgment based upon the statute of limitations and a lack of privity. Doc. 19, 39.
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trial, Brady asked the trial court to grant the injunction and order the Haines to move
the driveway and the building and to award attorney fees. Tr. 116-120. Jamie
Haines testified that Exhibit A showed the prospective cost of moving the building
to be approximately $24,200.00. Tr. 148. He asked the trial court to allow the
Haines to purchase the land upon which they were encroaching rather than move
the building. Tr. 148.
{¶7} Following the trial, the magistrate issued a thorough decision setting
forth the following relevant findings of fact.
The encroachment of the building and overhang was about 1 ft.
onto the Plaintiff’s property. Including the setback on the
Defendant’s property, this was a 3 ft. violation of the variance
granted. This encroachment formed a right triangle with the
property line/setback line. The base of the encroachment was 5.5
feet. * * *
Using basic geometry within common knowledge, the final side of
the triangle is about 4.6 feet, and the area of the encroachment by
the building is 6.9 square feet, given the Plaintiff are given [sic]
the benefit of the two foot setback on land belonging to the
Defendants. (Area of a triangle = ½ * base (3) * height (4.6) = Area
(6.9 sq. ft.)).
Doc. 57 at 3. The magistrate estimated, based upon the testimony of Fox, that the
encroachment by the driveway was at most 6 2/3 square feet. Id. The magistrate
also found that the errant pin found in Fox’s survey created the dispute and the
inaccurate measurements. Id. at 4. The magistrate conducted a sight view. Id. at
5. Based upon that information and the testimony, the magistrate found that “[t]here
was no credible testimony that the encroachments of [the Haines] actually impeded
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or preclud[ed] any staging or farming activities of [Brady].” Id. The magistrate
then made the following findings regarding the building.
First, this was an accidental encroachment. Although there was
lengthy testimony and debate over the incorrect pin that the
Defendants used to build the garage and driveway, there was
nothing established beyond the unintentional use of the wrong pin
that was within a couple of feet of the correct pin, on asymmetric
lots.
There was no evidence presented that there was bad faith,
recklessness, or an intentional act in the inadvertent use of the
wrong boundary. Even the Plaintiff ultimately used an imprecise
GIS photograph as Exhibit 4 to show the encroachment. If it were
bad faith or recklessness to use an incorrect pin, close to the
correct pin, and use that in good faith, then Exhibit 4 would not
have been appropriate to consider at the trial. * * * If the Court
gives the Defendants the same consideration the Plaintiff has
given herself, the Court can only find the error by the Defendant
to be in good faith, but ultimately incorrect.
Id. at 9-10. The magistrate noted that although Brady alleged that the encroachment
made a significant limitation on the ability to farm the property, the evidence did
not support a conclusion other than the effect was de minimus having “no practical
effect” on the ability to farm the land. Id. at 10. The magistrate found the cost of
moving the building to be $24,200, as was shown by the estimate presented by the
Haines. Id. Using an excessive value of the property of $20,000 an acre, the cost
to Brady for the encroachment was a mere $3.17. Id. at 11. After evaluating all of
the evidence and the applicable case law, the magistrate awarded damages to Brady
at $3.17 for the encroachment of the building and granted an easement for the
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minimal encroachment and $3.07 for the encroachment of the driveway and ordered
the encroaching part of the driveway to be removed. Id. at 15-16.
{¶8} On December 22, 2020, Brady filed objections to the decision of the
magistrate. Doc. 62. Brady objected to the magistrate’s denial of the injunction,
claiming that the findings of fact and conclusions of law reached by the magistrate
were in error. Id. The Haines filed a response to the objections on February 26,
2021. Doc. 68. On March 3, 2021, the trial court adopted the magistrate’s decision,
overruling the objections of Brady. Doc. 69. Brady appeals from this judgment.
Doc. 70. On appeal, Brady raises the following assignment of error.
The trial court erred as a matter of law and abused its discretion
in refusing to grant an injunction requiring [the Haines] to
remove the garage encroachment.
{¶9} The sole assignment of error alleges that the trial court erred in denying
the injunction requiring the Haines to move the garage. Although an injunction is a
proper remedy for a landowner to use to compel an adjoining landowner to remove
an encroachment, the granting of an injunction is within the sound discretion of the
trial court. Garcia v. Gilette, 11th Dist. Ashtabula No. 2013-A-0015, 2014-Ohio-
1868, ¶ 28 citing Varwig v. Cleveland, C.C. & St. L.R. Co., 54 Ohio St. 455, 44 N.E.
92 (1896).
Most jurisdictions permit a court to balance the relative
hardships to the parties in devising an appropriate equitable
remedy. These jurisdictions hold that where the expense and
difficulty of removal of an encroachment would be great and the
encroachment was causing minimal damage to the plaintiff, or its
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removal would result in little benefit to him, a mandatory
injunction is not required.
Id. See also Annotation, Mandatory Injunction to Compel Removal of
Encroachments by Adjoining Landowners, 28 A.L.R.2d 679 and Old Mill Village
Homeowners Assn. v. Bacik, 9th Dist. Medina No. 2118, 1993 WL 27416 (Feb. 3,
1993). Since the decision whether to grant an injunction is within the discretion of
the trial court, it will not be reversed on appeal absent a showing that the trial court’s
decision was unreasonable, arbitrary, or unconscionable. Howland v. Purdue
Pharma L.P., 104 Ohio St.3d 584, 2004-Ohio-6552, ¶ 26, 821 N.E.2d 141.
{¶10} Brady argues that the injunction should have been granted because the
Haines were reckless or negligent in the placement of the building by not having a
survey done before building. Brady relies upon the holding in Bethel v. Haney, 5th
Dist. Tuscarawas No. 2006 AP 110065, 2007-Ohio-6452. In Bethel, the court
reversed the judgment of the trial court denying an injunction and ordered the
encroachment to be removed, even though the cost of doing so was much higher
than the economic damages to the landowner. A review of this case shows that it is
not as dispositive as Brady would like. Brady argues that it stands for the
proposition that an injunction cannot be denied if the encroacher took a calculated
risk, acted in bad faith, acted negligently or acted indifferently when placing the
encroaching structure. While Bethel does contain a sentence stating such, it is one
of several factors to be considered. Id. at ¶ 31. In Bethel, the Court determined that
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the evidence showed that any encroachment was not intentional and used a
balancing test. Id. at ¶ 33-34. The holding in Bethel was based upon the fact that
the appellate court determined that the injunction would not create an “enormous
disparity in resulting hardship” and thus determined that the landowner would be
irreversibly harmed by denying the injunction. Id. at 34.
{¶11} The majority of courts, including Bethel, apply a balancing test when
reviewing the denial or granting of an injunction.
The extraordinary nature of the remedy by injunction calls for a
particular application of equitable principles, and it may be said
to be the duty of the court to consider and weigh the relative
conveniences and comparative injuries to the parties which would
result from the granting or refusal of injunctive relief. Because of
the drastic character of mandatory injunctions, such rules apply
with special force to them.
When the court is thus asked to undo something that has been
done, it must, for obvious reasons, act in a careful and
conservative manner and grant the relief only in situations which
so clearly call for it as to make its refusal work a real and serious
hardship and injustice.
The facts which will warrant mandatory relief must be clear, be
free from reasonable doubt, and disclose the prospect of
irreparable injury to the complainant. Equity will not interfere
where the anticipated injury is doubtful or speculative;
reasonable probability of irreparable injury must be shown. Such
relief will be refused where the injury is so slight as to bring the
case within the maxim “de minimis non curat lex,” where there is
no appreciable damage, where a mandatory decree would require
a difficult and expensive act, or where its enforcement would
necessitate close and continuous supervision by the court for an
indefinite period. As in other cases of injunction, the court will
balance the equities between the parties and consider the benefit
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to the plaintiff of a mandatory writ as against the inconvenience
and damage to the defendant, and award relief accordingly.
***
In Arnold v. Melani (1969), 75 Wash.2d 143, 449 P.2d 800, the
Supreme Court of Washington upheld the denial of a mandatory
injunction for the removal of an encroaching structure on the
property of a neighboring landowner. The court stated at 152-
152, 449 P.2d at 806:
“As thus construed, * * * Peoples Sav. Bank v. Bufford [ (1916), 90
Wash. 204, 155 P. 1068], supra, and Tyree v. Gosa [ (1941), 11
Wash.2d 572, 119 P.2d 926], supra, support the premise that a
mandatory injunction can be withheld as oppressive when, as
here, it appears (and we particularly stress), that: (1) The
encroacher did not simply take a calculated risk, act in bad faith,
or negligently, willfully or indifferently locate the encroaching
structure; (2) the damage to the landowner was slight and the
benefit of removal equally small; (3) there was ample remaining
room for a structure suitable for the area and no real limitation
on the property's future use; (4) it is impractical to move the
structure as built; and (5) there is an enormous disparity in
resulting hardships.
Miller v. W. Carrollton, 91 Ohio App.3d 291, 296-97, 632 N.E.2d 582 (2d Dist
1993).
{¶12} In Old Mill Village Homeowners Association v. Bacik, supra, the
Ninth District Court of Appeals addressed an issue similar to the one before us. In
Bacik, the Baciks built a deck that encroached upon the Association’s property by
approximately nine inches and landscaping that encroached approximately 13 feet
onto the Association’s property. The Association asked the Baciks to remove the
encroachments and when they refused, the Association filed a complaint for an
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injunction. The trial court eventually denied the motion for the injunction and
instead ordered the Baciks to pay damages in to the amount of $500 and granted the
Bacik’s a permanent easement in the disputed property. The Association appealed
claiming the trial court erred by failing to grant the injunction. On appeal, the Court
determined that although the trial court abused its discretion by not granting the
injunction regarding the landscaping, it did not do so in regards to the deck.
A distinction must be made in this case between the nine inch
encroachment caused by the deck and the thirteen foot
encroachment caused by railroad ties and additional landscaping.
We find that the trial court did not abuse its discretion in denying
an injunction with regards to the nine inch encroachment of the
deck. Bacik had permission from the Association to build the
deck. While there is no evidence that the plans submitted for
approval disclosed the encroachment, there is also no evidence
that the encroachment was caused in bad faith. There was
evidence presented that moving the deck back 9 inches would be
expensive. Furthermore, the Association’s damages due to the
nine inch encroachment were minimal, as the property in
question was used only as a drainage ditch. In weighing the
relative hardships to the parties with respect to the nine inch
encroachment, and considering that $500.00 was ordered paid to
the Association as compensation, we find no abuse of discretion
with regards to denying an injunction for this encroachment.
Id. at *2. The Court also held that the trial court did not abuse its discretion by
granting a permanent easement.
{¶13} Here, the trial court reviewed the testimony and exhibits and
determined that the encroachment by the garage and the driveway were not
intentional or reckless. The trial court determined that the encroachment was caused
by a prior survey mistake. The testimony was that there were stakes placed that
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were thought by all involved, including Bradford Brady, to mark the property line.
Timothy Mooney, a trustee for Claridon Township, testified that at the hearing on
the variance, Bradford Brady indicated he supported the variance. Tr. 17. Exhibit
1 showed that the foundation was required to be two foot from the property line and
that the township zoning inspector had to inspect it for compliance. Jaime Haines
testified that he thought he was in compliance because he ran string between the
stakes he believed to be the property markers. Tr. 139. He also used string to mark
the layout of the garage. Tr. 139. The placement was reviewed by both Bradford
and the zoning inspector, who checked to make sure he was in compliance with the
variance. Tr. 139. No objections were raised at that time. Tr. 139. Additionally,
Steven Fox (“Fox”), the surveyor for Brady, testified that there was an incorrect pin
set at the back corner of the property and he marked such on Exhibit 7. Tr. 28-32.
Fox also testified that the incorrect pin could be a cause of the problem. Tr. 46. The
determination of the trial court was supported by competent, credible evidence,
therefore this court will defer to the trial court’s factual finding that the Haines acted
unintentionally and in good faith.
{¶14} “In cases where the encroachment was not intentional, courts will
balance the equities of the parties, weighing the relative conveniences and
comparative injuries to each party that would result from granting or refusing to
grant injunctive relief.” Collier v. Dorcik, 9th Dist. Medina No. 3009-M, 2000 WL
1751301, *3 (Nov. 29, 2000). Such a consideration occurred in this case. The trial
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court noted in its judgment entry that the cost of removing the encroachment, as
shown by Exhibit A, would be $24,200. Although Brady claims that this amount
was speculative, Brady did not present any evidence contrary to it and the trial court
was free to determine it was a credible estimate. In contrast, Brady argued that not
granting the injunction would harm the ability to continue farming the land. The
trial court found this to be lacking in credibility. This Court agrees. The
encroachment of the garage by a little over one foot (the amount the 12” overhang
would be on Brady’s property since the foundation encroached by 1”) is rather
minimal. Brady’s son testified that the land in question is approximately 80’ wide
and is used to stage farming equipment. Tr. 52-56. The equipment is brought in
folded up and is unfolded after it goes through a 40’ gate, which is located after the
encroachment. Tr. 56-59. The trial court noted that the 6.9 square foot
encroachment (including the portion of the garage on the Haines’ property but
within the setback) “had a de minimis effect on the staging area, and had no effect
on the 40 ft. gate area where equipment would enter the property. There was no
practical effect on the Plaintiff’s ability to farm the land or any portion of the
connected farms.” Doc. 69 at 14. This finding by the trial court is not only
supported by the testimony presented by Brady herself, but also by looking at the
history. The garage was built in 2010. The land was continuously farmed without
any complaints or issues for several years. No testimony was presented that the
property was not currently being farmed. Exhibit 7 shows exactly how much
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encroachment exists in relation to the property as a whole. Based upon the record
before this court, the trial court did not abuse its discretion in determining that the
damage to Brady was slight and the benefit to Brady would gain by granting the
injunction was also slight.
{¶15} The trial court next looked at the effect on the use of the property if
the encroachment remained. Brady testified that she had no interest in selling the
property at any price and intended to farm it. Tr. 108. The trial court determined
that the encroachment had no effect on the use of the land as a staging area. Doc.
69 at 15. The trial court determined that even if Brady wished to put a structure on
the property, the minimal encroachment would not interfere with her ability to do
so. Doc. 69 at 15. The trial court also determined that it was impractical to move
the garage and that there would be enormous disparity in resulting hardships. Even
using a figure of $20,000, more than double the market rate for farmland in the area,
the amount of loss suffered by Brady for the encroachment, including the amount
in the setback, was $3.17. Doc. 69 at 16. The cost of moving the building was
$24,200 per the itemized estimate provided to the trial court and the testimony of
Jaime Haines. All of the findings of fact and conclusions of law made by the trial
court were supported by evidence in the record and are not unreasonable, arbitrary,
or unconscionable. Thus, the judgment of the trial court was not an abuse of
discretion. The assignment of error is overruled.
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{¶16} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Court of Common Pleas of Marion County
is affirmed.
Judgment Affirmed
ZIMMERMAN and MILLER, J.J., concur.
/hls
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