2018 Ohio 4239
Ohio Ct. App.2018Background
- Northwest Ohio Properties (plaintiff) owns ~60 acres; a force main sewer was installed across its property in 2007 by developer Watermark (via manager Ankney) with county oversight.
- In Sept. 2006 plaintiff signed a letter with Ankney consenting to installation so long as plaintiff could tap the force main "at no charge." Ankney signed and construction occurred; plaintiff never tapped the line.
- County sanitary engineer operated/maintained the system since completion and later agreed plaintiff could have two taps when it develops the property. County has not formally accepted ownership of the system.
- Plaintiff sued county and others (including developer successor Gulfstream) asserting trespass, ejectment, and related claims; Gulfstream intervened. Plaintiff later sought partial summary judgment on ejectment.
- Trial court granted summary judgment for County on trespass and ejectment (finding an easement by estoppel exists based on the 2006 agreement) and denied plaintiff’s ejectment motion; it ordered plaintiff to specifically perform and grant an easement to Gulfstream. Court held "no charge" means plaintiff receives free taps and any charges are to be borne by the developer (now Gulfstream). Appeal and cross-appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether County committed trespass / is liable for ejectment | No express easement exists; 2006 letter cannot convey easement per R.C. 5301.01 and was breached, so County has no right to use the land | 2006 letter created permission and, at minimum, an easement by estoppel; County lawfully has used and maintained the force main | No trespass; easement by estoppel found; summary judgment for County on trespass and ejectment affirmed |
| Whether 2006 letter is enforceable and breached | Plaintiff: agreement was breached (no immediate taps provided) and thus no easement arose | Defendants: plaintiff relied on and honored the agreement; no time limit for taps; agreement valid | Agreement valid, unambiguous, not breached; easement by estoppel applies |
| Whether trial court could order specific performance / treat Gulfstream as entitled to easement | Plaintiff sought ejectment; plaintiff claimed court should grant ejectment rather than specific performance | Gulfstream asserted it succeeded to developer obligations and rights and would honor Ankney’s commitment; court could treat defenses as counterclaims and seek specific performance | Court did not abuse discretion ordering specific performance; ordered plaintiff to grant easement to Gulfstream |
| Whether "no charge" obligates Gulfstream to pay future tap fees | Plaintiff: "no charge" means plaintiff gets free taps (no county fees) | Gulfstream: it is a separate entity from prior owners and should not be bound to pay developer/owner charges | Court construed contract literally: "no charge" means plaintiff not charged; developer (now Gulfstream) must pay any county tap fees; affirmed |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (de novo review of summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (summary judgment burden-shifting framework)
- Apel v. Katz, 83 Ohio St.3d 11 (definition of trespass to real property)
- Spengler v. Sonnenberg, 88 Ohio St. 192 (specific performance is equitable, discretionary remedy)
- Sandusky Properties v. Aveni, 15 Ohio St.3d 273 (appellate review of specific performance—abuse of discretion standard)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (definition of abuse of discretion)
- Continental W. Condo. Unit Owners Assn. v. Howard E. Ferguson, Inc., 74 Ohio St.3d 501 (contract issues reviewed de novo)
- Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (contract construction is a question of law)
- Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130 (contract language reflects parties' intent)
- Cleveland Elec. Illum. Co. v. Cleveland, 37 Ohio St.3d 50 (court must give effect to contract words without adding terms)