author: CYNTHIA WESTCOTT RICE, P.J.

text:
    Ronald ABRAMEZYK, et al., Plaintiffs-Appellees, v. The CITY OF WILLOWICK, Defendant-Appellant.
    NO. 2017-L-060
    Court of Appeals of Ohio, Eleventh District, Lake County.
    Decided December 29, 2017
    Phillip A. Ciano and Andrew S. Goldwasser, Ciano & Goldwasser, LLP, 1610 Midland Building, 101 West Prospect Avenue, Cleveland, OH 44115; Robert E. Kennedy and Daniel P. Goetz, Weisman, Kennedy & Berris Co., L.P.A., 1600 Midland Building, 101 Prospect Avenue, Cleveland, OH 44115; and Paul W. Flowers, Paul W. Flowers Co., L.P.A., Terminal Tower, Suite 1910, 50 Public Square, Cleveland, OH 44113 (For Plaintiffs-Appellees).
    John T. McLandrich and Robert F. Cathcart, Mazanec, Raskin & Ryder Co., L.P.A., 100 Franklin's Row, 34305 Solon Road, Solon, OH 44139; and Michael C. Lucas, Wiles and Richards, 37265 Euclid Avenue, Willoughby, OH 44094 (For Defendant-Appellant).
   CYNTHIA WESTCOTT RICE, P.J.

{¶ 1} Appellant, the city of Willowick, appeals the judgment of the Lake County Court of Common Pleas in favor of appellees, Ronald Abramezyk, et al., denying the city's motion for judgment on the pleadings on appellees' negligence claims against the city. At issue is whether the court erred in finding the city was not entitled to political subdivision immunity. The city's appeal of a judgment in a related class action, which asserted the same allegations against the city as those asserted in the instant action, is also pending before this court in Ragazzo v. Willowick , 11th Dist., 2017-Ohio-9337, 103 N.E.3d 65. For the reasons that follow, we affirm.

{¶ 2} On July 14, 2015, appellees, who are 148 homeowners and/or residents of Willowick, filed a complaint against the city asserting, as pertinent to this appeal, claims of negligence. The statement of facts that follows is derived from the allegations in the complaint and documents attached to the city's answer.

{¶ 3} The city owns, operates, and maintains a sanitary sewer system that provides sewer services to its residents. On July 20, 2013, the city's sewer system backed up into hundreds of homes in Willowick, including appellees' homes, causing them to be flooded with raw sewage, bacteria-tainted water, feces, urine, dirt, debris, and noxious odors.

{¶ 4} In the past several years prior to the July 20, 2013 sewer system backup, the city's residents experienced a number of such backups.

{¶ 5} In June 2010, about 200 city residents were affected by a sanitary sewer backup. On October 12, 2010, during a meeting of Willowick City Council, in which Council discussed the deteriorating condition of the city's sewer system, then-Mayor Richard Bonde said: "[T]he city has done all it can to cut back on the expenses to avoid passing costs onto residents. However, the city is now at the point where they cannot fix the sewers."

{¶ 6} At the same hearing, Bob Patton, Chairman of the Streets, Sidewalks, and Sewers Committee, said: "The city is in a bad place with making this decision, in light of the photographs the city engineer produced of the collapse[d] sewers, something needs to be done." Further, Mr. Patton said that the "city must do something" and that he was "very concerned with the fact that there are bricks falling and blocking the sewers." Council member, Mike Vanni, said: "the photographs of the bricks blocking the sewers is just more justification that the city needs to do something."

{¶ 7} Two months later, during a Council meeting on December 7, 2010, the city's Service Director, Joe Dominick, said: "[t]he 305th [Street] sewer line is in need of jetting," i.e., cleaning out. He said: "there are three troublesome areas that have 70%, 50%, and 20% restricted flow. The [sewer] lines have calcifications that cannot be easily cleaned out." To clarify, Mr. Dominick said: "there is one location that has a blockage of 70%" and "another spot [is] at 50% and 20% blockages." Mr. Dominick said this was the same blockage the city engineer discussed at the public meetings on October 12, 2010 and October 19, 2010. City Engineer Juday, who was also present at the December meeting, said this could be the reason for the sewer backup on Willowick Drive. At this meeting, Mayor Bonde said he "still has some concerns with the Bayridge [Boulevard] overflow that occurred this year."

{¶ 8} Appellees alleged in their complaint that, throughout 2011, city representatives continued to note concerns regarding the condition and maintenance of the city's sanitary sewer lines. Appellees further alleged that the city never appropriately addressed these issues and that, despite these ongoing concerns, the city never took the necessary steps to repair the sewers through proper upkeep, maintenance, operation, and repair. Appellees alleged that, as a result of the city's failure to maintain and repair the sewer system, the system backed up into their homes on July 20, 2013.

{¶ 9} Appellees alleged the city had a duty to maintain and repair its sewer system, and that the city's breach of that duty resulted in damage to appellees' homes and personal property and personal injury, for which the city is liable in negligence.

{¶ 10} The city filed an answer, denying the material allegations of the complaint and asserting various affirmative defenses, including that appellees' complaint was barred by political subdivision immunity, pursuant to R.C. Chapter 2744.

{¶ 11} Two weeks later, the city filed a motion for judgment on the pleadings pursuant to Civ.R. 12(C), arguing that appellees' claims were barred by subdivision immunity. In their brief in opposition, appellees argued that maintenance and repair of a sewer system is a "proprietary" function, which is an exception to the city's immunity.

{¶ 12} The trial court designated this case to be "complex litigation" due to, in part, "the extent of the discovery necessary to prepare the case for trial."

{¶ 13} The trial court entered a six-page, highly-detailed judgment denying the city's motion. The trial court concluded:

{¶ 14} Upon review of the Complaint in this case, the Court finds that Plaintiffs have alleged in the Complaint that the City has failed to maintain its sewer system. Maintenance of a sewer system is a * * * "proprietary function" which satisfies one of the exceptions to immunity set forth in R.C. * * * 2744.02(B)(2). Viewing the pleadings in a light most favorable to the Plaintiffs, the Court finds that it would be improper to grant judgment on the pleadings in favor of the Defendant at this time based upon statutory immunity.

{¶ 15} The city appeals the trial court's judgment, asserting the following for its sole assignment of error:

{¶ 16} "The trial court improperly denied defendant/appellant city of Willowick immunity under R.C. Chapter 2744 and judgment on the pleadings."

{¶ 17} This interlocutory appeal was filed pursuant to R.C. 2744.02(C), which provides that an order denying a political subdivision the benefit of an alleged immunity from liability is a final order. This court has held that the denial of a motion to dismiss based on sovereign immunity is immediately appealable. Am. Site Contrs., Inc. v. Willowick , 11th Dist. Lake No. 2005-L-088, 2005-Ohio-4768, ¶ 2, 2005 WL 2211142. Since the trial court's judgment denied the city's motion for judgment on the pleadings, thus denying the city immunity, the court's judgment was a final order and the instant appeal is properly before this court.

{¶ 18} "Because a Civ.R. 12(C) motion for judgment on the pleadings tests the legal basis for the claims asserted in a complaint, our standard of review is de novo." Orwell Nat. Gas Co. v. Fredon Corp., 11th Dist., 30 N.E.3d 977, 2015-Ohio-1212, ¶ 18, citing State ex rel. Midwest Pride IV, Inc. v. Pontious , 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996). Further, whether a political subdivision is entitled to immunity is a question of law that we review de novo. See Cornelison v. Colosimo , 11th Dist. Trumbull No. 2009-T-0099, 2010-Ohio-2527, 2010 WL 2245614, ¶ 30.

{¶ 19} "In ruling on the motion [for judgment on the pleadings], a court is permitted to consider the complaint and the answer as well as any documents attached as exhibits to those pleadings." Orwell, supra . "In so doing, the court must construe the material allegations in the complaint, with all reasonable inferences drawn therefrom, as true and in favor of the non-moving party." Id. "A court granting the motion must find that the plaintiff can prove no set of facts in support of the claims that would entitle him or her to relief." Id. " '[A] motion for judgment on the pleadings has been characterized as a belated Civ.R. 12(B)(6) motion for failure to state a claim upon which relief can be granted.' " Orwell, supra , quoting Gawloski v. Miller Brewing Co. , 96 Ohio App.3d 160, 163, 644 N.E.2d 731 (9th Dist.1994).

{¶ 20} "Generally, the party asserting immunity as an affirmative defense has the burden of proving that defense by a preponderance of the evidence at trial." Hall v. Ft. Frye Loc. School Dist. Bd. Of Edn. , 111 Ohio App.3d 690, 694, 676 N.E.2d 1241 (4th Dist.1996). This court, in Frazier v. Kent , 11th Dist. Portage Nos. 2004-P-0077 and 2004P0096, 2005-Ohio-5413, 2005 WL 2542940, set forth the appropriate analysis to be applied upon the assertion of a defense based on political subdivision immunity, as follows:

{¶ 21} R.C. Chapter 2744 sets forth a three tiered analysis for determining a political subdivision's immunity from liability. Greene Cty. Agricultural Soc. v. Liming , 89 Ohio St.3d 551, 556 [733 N.E.2d 1141] (2000). First, R.C. 2744.02(A)(1) codifies the general rule of sovereign immunity, viz., that "a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function." However, this general rule is limited by R.C. 2744.02(B), which sets forth five instances in which a political subdivision is not immune. Hence, the second tier of the analysis requires a court to determine whether any of the exceptions under R.C. 2744.02(B) apply. Finally, if a political subdivision is exposed to liability through the application of R.C. 2744.02(B), a court must consider whether the political subdivision could legitimately assert any of the defenses or immunities under R.C. 2744.03. See, e.g. , Greene Cty. Agricultural Soc., supra, at 557 [733 N.E.2d 1141]. Frazier, supra , at ¶ 20.

{¶ 22} I. THE FIRST TIER: GENERAL SUBDIVISION IMMUNITY UNDER R.C. 2744.02(A)(1)

{¶ 23} Applying this analysis to the instant case, it is undisputed that the city of Willowick is a political subdivision pursuant to R.C. 2744.01(F). Thus, under the first tier of the analysis, the city is entitled to general immunity pursuant to R.C. 2744.02(A)(1).

{¶ 24} II. THE SECOND TIER: THE EXCEPTION TO SUBDIVISION IMMUNITY FOR THE NEGLIGENT PERFORMANCE OF A PROPRIETARY FUNCTION UNDER R.C. 2744.02(B)

{¶ 25} Under the second tier of the analysis, this court must determine whether any of the exceptions to immunity applies under R.C. 2744.02(B). Appellees argue their damages were caused by the city's failure to maintain its sewer system. They argue this failure amounts to negligence in the performance of a proprietary function, which, they contend, satisfies the exception to immunity in R.C. 2744.02(B)(2). That section provides:

{¶ 26} [P]olitical subdivisions are liable for injury, death, or loss to persons or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivision. (Emphasis added.)

{¶ 27} Government conduct is divided into governmental functions and proprietary functions under Ohio's Political Subdivision Tort Liability Law. Guenther v. Springfield Twp. Trustees, 2d Dist., 970 N.E.2d 1058, 2012-Ohio-203, ¶ 12. With respect to sewer systems, "governmental functions" include "[t]he * * * planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system." R.C. 2744.01(C)(2)(l). In contrast, "proprietary functions" regarding sewers include "[t]he maintenance, * * * operation, and upkeep of a sewer system." R.C. 2744.01(G)(2)(d). Thus, "planning, design, construction, or reconstruction of a sewer system is shielded by immunity; maintenance or operation is not." Guenther, supra, at ¶ 17.

{¶ 28} In determining whether a complaint presents a maintenance issue (no immunity) or a construction issue (immunity), the Second District, in Guenther, supra , stated:

{¶ 29} A complaint is properly characterized as a maintenance, operation, or upkeep issue when "remedying the sewer problem would involve little discretion but, instead, would be a matter of routine maintenance, inspection, repair, removal of obstructions, or general repair of deterioration." Essman [v. Portsmouth , 4th Dist. Scioto No. 09CA3325, 2010-Ohio-4837, 2010 WL 3852247] ¶ 32. But the complaint presents a design or construction issue if "remedying a problem would require a [political subdivision] to, in essence, redesign or reconstruct the sewer system." Essman at ¶ 32-33. Guenther, supra , at ¶ 18 ; quoted with approval by Coleman v. Portage Cty. Engineer , 133 Ohio St.3d 28, 2012-Ohio-3881, 975 N.E.2d 952, ¶ 30.

{¶ 30} Here, appellees' complaint alleged that the city failed to maintain and repair its sewer system. Further, the city concedes the proprietary-function exception to immunity is arguably at issue here. However, the city contends that the complaint does not contain sufficient factual allegations to support appellees' negligence claims or to deprive the city of immunity. We do not agree.

{¶ 31} In addressing Ohio's pleading requirements, this court, in McWreath v. Cortland Bank , 11th Dist. Trumbull No. 2010-T-0023, 2012-Ohio-3013, 2012 WL 2522933, ¶ 38, stated:

{¶ 32} "Because Ohio is a notice-pleading state, Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity. * * * Rather, Civ.R. 8(A) requires only a short and plain statement of the claim that gives the defendant fair notice of the plaintiff's claim and the grounds upon which it is based. * * * Thus, a plaintiff is not required to plead the legal theory of the case at the pleading stage and need only give reasonable notice of the claim. * * * Outside of a few exceptions, * * * a complaint need not contain more than 'brief and sketchy allegations of fact to survive a motion to dismiss under the notice pleading rule.' * * *." (Internal citations omitted.) Ogle v. Ohio Power Co. , 180 Ohio App.3d 44, 2008-Ohio-7042 [903 N.E.2d 1284], ¶ 5 (4th Dist.).

{¶ 33} "When ruling on a motion to dismiss, 'a plaintiff is not required to prove his or her case at the pleading stage.' " Mohat v. Horvath , 11th Dist. Lake No. 2013-L-009, 2013-Ohio-4290, 2013 WL 5450296, ¶ 14, quoting York v. Ohio State Hwy. Patrol , 60 Ohio St.3d 143, 144-145, 573 N.E.2d 1063 (1991). "Rather, a plaintiff is only required to allege a set of facts, which, if proven, would plausibly allow for recovery." Id. , citing Howard v. Girard , 11th Dist. Trumbull No. 2010-T-0096, 2011-Ohio-2331, 2011 WL 1944196, ¶ 14. "The plausibility standard does not impose a probability requirement at the pleading stage; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence in support of a claim." Id. "While the complaint does not need detailed factual allegations, it requires more than mere conclusions or a recitation of the elements of the claim." Id.

{¶ 34} The city argues that appellees' factual allegations are insufficient and their complaint must be dismissed because they failed to allege: (1) the specific cause of the 2010 sewer backup; (2) that they were affected by that backup; (3) whether the problems with the sewer system in 2010 had anything to do with the 2013 backup; (4) the specific sewer problem that affected their homes in 2013; (5) the specific steps necessary to remedy the problem with the sewers; and (6) what work was not performed. Basically, the city argues that, unless appellees' complaint made specific factual allegations regarding virtually every aspect of their claims, they must be dismissed.

{¶ 35} However, in making this argument, the city misconstrues-or ignores-appellees' burden at the pleading stage. As noted above, in order to survive a motion for judgment on the pleadings, appellees were not required to meet a particularity or probability standard. Rather, they were simply required to allege enough facts to give the city notice of their claims and the grounds on which they were based. McWreath, supra . While the complaint requires more than mere legal conclusions, it does not need detailed or particularized factual allegations. Id.

{¶ 36} Contrary to the city's argument, appellees alleged sufficient facts to support their claims and to defeat the city's immunity defense. According to the complaint, eight of the appellees whose homes were damaged in 2013 live on or near streets that, according to Council's December 2010 minutes, were experiencing calcification blockage, overflow, or sewer backup issues. Moreover, appellees alleged in their complaint that in June 2010, some 200 residents of the city were affected by the sewer backup. The complaint and Council's minutes (attached to the city's answer) provide facts regarding at least three different potential causes of the 2010 backup, i.e., calcification in the sewer lines, bricks falling and blocking the sewers, and collapsed sewers. The city engineer said the calcification blockage might have been the cause of the sewer backup on Willowick Drive. The mayor himself acknowledged the serious nature of the problems with the sewer system by saying that "the city is now at the point where they cannot fix the sewers." Further, the complaint alleged that, throughout 2011, city representatives continued to express concerns regarding the condition and maintenance of the city's sewer lines. Appellees alleged that, despite these ongoing concerns regarding the sewer system, the city failed to remedy the problems with the sewer system through proper upkeep, maintenance, operation, and repair. These facts support a reasonable inference that the sewer problems connected with the 2010 backup were not repaired by the time of the 2013 backup and were thus also related to that backup.

{¶ 37} In light of the obvious complexity of this case, as evidenced by the trial court's designation of this matter as "complex litigation," it is unrealistic to expect that, at the pleading stage, appellees would be able to plead detailed facts regarding all the pleading omissions alleged by the city. These issues will presumably be addressed in discovery. For now, the city cannot reasonably deny that it is on notice of appellees' claims and the grounds on which they are based. Nor can the city reasonably deny that appellees have alleged a set of facts, which, if proven, would plausibly allow for recovery.

{¶ 38} The city attempts to minimize the significance of the facts alleged by appellees in the complaint. First, the city argues appellees took the mayor's comments about the city not being able to fix the sewers out of context because he made them while discussing repairing the sewers without raising sewer rates. However, construing the mayor's comments in a light most favorable to appellees, these comments acknowledge that the city was on notice of the deteriorating condition of its sewer system and that the city allowed these problems to continue to the point where it could not fix the sewers.

{¶ 39} Further, the city's argument that it hired a contractor to clean out the calcification in the E. 305th Street sewer line does not mean the city repaired the calcification problem at that location or at any other area of the city where calcification had created blockages or any of the other problems plaguing the sewer system. Notably, the city does not reference anything in the record showing the city repaired any of the problems with the sewer system prior to the 2013 backup.

{¶ 40} Finally, the city argues there are no facts connecting the sewer system problems identified in 2010 with the 2013 backup. However, the city ignores appellees' allegations that city officials remained concerned about the condition and maintenance of the sewer lines "[t]hroughout 2011" and that, despite these ongoing concerns, the city failed to repair the sewers, resulting in the 2013 backup.

{¶ 41} III. THE THIRD TIER: THE RESTORATION OF DISCRETIONARY IMMUNITY UNDER R.C. 2744.03(A)(5)

{¶ 42} Next, under the third tier of the immunity analysis, the city argues that, even if the proprietary-function exception to immunity in R.C. 2744.02(B)(2) applies, appellees failed to allege facts that would defeat the reinstatement of discretionary immunity pursuant to R.C. 2744.03(A)(5). That section provides:

{¶ 43} The political subdivision is immune from liability if the injury, death, or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.

{¶ 44} However, the city does not argue, let alone show, that it exercised any discretion in the maintenance and repair of its sewer system, thus defeating the restoration of immunity contemplated in R.C. 2744.03(A).

{¶ 45} Ohio Appellate Districts have repeatedly held that the decision to provide maintenance and repair to a sewer system does not involve the exercise of discretion that would provide for the restoration of immunity under R.C. 2744.03(A)(5). In Williams v. Glouster , 4th Dist. Athens No. 10CA58, 2012-Ohio-1283, 2012 WL 1029470, the Fourth District "rejected [the appellant-village's] contention that its duty to maintain the [sewer] system constituted the type of discretionary decision * * * contemplated under R.C. 2744.03(A)(5) which would re-establish its immunity." Williams at ¶ 35. The Fourth District stated:

{¶ 46} [I]f it is proven that [a]ppellant negligently maintained its * * * sewer system, the maintenance of which is a proprietary function, because that function is mandatory and did not involve the exercise of judgment or discretion, [a]ppellant's immunity from liability would not be re-instated under R.C. 2744.03(A)(5). As such, we need not reach the question of whether [a]ppellant's actions were exercised with malicious purpose, in bad faith, or in a wanton or reckless manner, as set forth in R.C. 2744.03(A)(5). Williams at ¶ 36.

{¶ 47} Further, in Nelson v. Cleveland , 8th Dist. Cuyahoga No. 98548, 2013-Ohio-493, 2013 WL 588718, another case involving a city's alleged negligent maintenance of its sewer system, the court rejected the city's argument that it was entitled to discretionary immunity under R.C. 2744.03(A)(5). Nelson at ¶ 30. The Eighth District, in citing Williams, supra , and other cases stated:

{¶ 48} Decisions involving the proper maintenance of the sewer * * * system is a proprietary act, which is mandatory and not discretionary. These decisions do not involve a high degree of discretion. Rather, they involve routine inspection and maintenance. Therefore, the defense outlined in R.C. 2744.03(A)(5) is not available to the City. Nelson, supra .

{¶ 49} We find the reasoning in Williams and Nelson to be persuasive and applicable here. Since this case involves the maintenance and repair of sewers, which, per R.C. 2744.01(G)(2)(d), is a proprietary function, R.C. 2744.03(A)(5) does not apply to restore immunity to the city.

{¶ 50} We therefore hold the trial court did not err in denying the city's motion for judgment on the pleadings and in finding that the city was not entitled to political subdivision immunity on appellees' negligence claims.

{¶ 51} For the reasons stated in this opinion, the assignment of error is overruled. It is the order and judgment of this court that the judgment of the Lake County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, J., concurs,

DIANE V. GRENDELL, J., concurs in judgment only.


source: Caselaw Access Project

author: Harsha, J.

license: Public Domain

text:
    Jerry WRAY, Director, Ohio Department of Transportation, Plaintiff-Appellant, v. GAHM PROPERTIES, LTD., et al., Defendants-Appellees.
    No. 16CA3775
    Court of Appeals of Ohio, Fourth District, Scioto County.
    RELEASED: January 4, 2018
    Michael DeWine, Ohio Attorney General, and William J. Cole and Marc A. Sigal, Assistant Attorneys General, Columbus, Ohio for appellant.
    Michael Braunstein, Clinton P. Stahler, and Matthew L. Strayer, Columbus, Ohio for appellees.
    DECISION AND JUDGMENT ENTRY
   Harsha, J.

{¶ 1} The Director, Ohio Department of Transportation (ODOT) appeals the trial court's entry awarding costs and expenses to Gahm Properties, Ltd., in an appropriation action. ODOT notes that a property owner is not entitled to recover costs and expenses unless the property was used for agricultural purposes, and contends there was no evidence of such use here. Gahm Properties argues it presented evidence that it harvested timber, which is an agricultural use of the property, so the trial court properly awarded it costs and expenses.

{¶ 2} We find that the plain language of the statute is unambiguous. "Agriculture" is defined to include "timber," which means "growing trees or their wood." Gahm Properties presented competent, credible evidence that it harvested timber on the property. Thus we affirm the trial court's judgment.

I. FACTS AND PROCEDURAL BACKGROUND

{¶ 3} ODOT filed a petition to appropriate property owned by Gahm Properties. At trial the parties presented expert witness testimony and appraisal reports concerning the value and use of the property. The parties agreed that the property is zoned agricultural and that the Scioto County Auditor identifies the property as woodland, pasture and tillable land. The property originally had a farmhouse and three large barns that were subsequently removed. Gahm Properties' expert witness, appraiser Richard Vannatta, prepared an appraisal that described the property and improvements stating:

Natural site improvements consist of various forms of natural growth, such as deciduous trees and herbage. However, for the most part, the owner has harvested the heavily wooded areas.

ODOT's expert witness, appraiser Lance Brown, responded on cross-examination that he was unaware that Gahm Properties harvested and sold timber from the property, but it "doesn't surprise" him. On redirect, Brown was asked, "Is the property used for agricultural purposes?" and he answered, "No."

{¶ 4} The jury returned a verdict awarding Gahm Properties $330,419 as compensation for ODOT's taking. Gahm Properties filed a motion for an award of costs and expenses under R.C. 163.21(C)(2). ODOT opposed the motion and requested discovery and an evidentiary hearing. The trial court initially set the matter for a hearing and ordered Gahm Properties to respond to ODOT's discovery requests. However, ODOT later asked the court to convert the hearing to a telephonic status conference to allow it time to complete discovery. The trial court agreed to hold a telephonic status conference. After the status conference, and without holding an evidentiary hearing, the trial court awarded Gahm Properties costs and expenses totally $32,224. Neither a transcript nor an App.R. 9(C) statement of this telephonic conference is part of the record.

II. ASSIGNMENT OF ERROR

{¶ 5} ODOT designated a sole assignment of error for review:

I. THE TRIAL COURT ERRED IN AWARDING COSTS AND EXPENSES UNDER R.C. 163.21(C)(2). (R. 89.)

III. LEGAL ANALYSIS

{¶ 6} The dispositive issue in this appeal is whether the land appropriated by ODOT from Gahm Properties "is land used for agricultural purposes as defined in [R.C.] 303.01 or 519.01" so to entitle the landowner to costs and expenses, including attorney's and appraisal fees. R.C. 163.21(C)(2).

A. Standard of Review

{¶ 7} ODOT's contention that the trial court's judgment is erroneous because there is no evidence the property was used for agricultural purposes challenges the manifest weight of the evidence. "We will not reverse a trial court's judgment as against the manifest weight 'if it is supported by some competent, credible evidence.' " See Hardert v. Neumann , 4th Dist. Adams No. 13CA977, 2014-Ohio-1770, 2014 WL 1691649, ¶ 18, quoting Nolen v. Rase , 4th Dist. Scioto No. 13CA3536, 2013-Ohio-5680, 2013 WL 6835068, ¶ 9, citing Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 14. When we review whether a trial court's decision is against the manifest weight of the evidence, we weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in the evidence, the factfinder clearly lost its way and created such a manifest miscarriage of justice that we must reverse the judgment. Martin v. Jones , 2015-Ohio-3168, 41 N.E.3d 123, ¶ 68 (4th Dist.). We will reverse a judgment as being against the manifest weight of the evidence only in the exceptional case where the evidence weighs heavily against the judgment. Pinkerton v. Salyers , 4th Dist. Ross No. 13CA3388, 2015-Ohio-377, 2015 WL 459267, ¶ 18.

{¶ 8} This case also involves statutory construction, which raises a question of law that we review de novo. See Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals , 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 25, quoting Lang v. Ohio Dept. of Job & Family Servs. , 134 Ohio St.3d 296, 2012-Ohio-5366, 982 N.E.2d 636, ¶ 12 (" 'A question of statutory construction presents an issue of law that we determine de novo on appeal' "); see also Mollette v. Portsmouth City Council , 179 Ohio App.3d 455, 2008-Ohio-6342, 902 N.E.2d 515, ¶ 20 (4th Dist.), quoting Covert v. Ohio Aud. of State , 4th Dist. Scioto No. 05CA3044, 2006-Ohio-2896, 2006 WL 1570598, at ¶ 18 (" 'Generally, statutory construction is a legal issue that appellate courts review de novo' ").

B. Statutory Construction

{¶ 9} ODOT contends that the statute defining "agriculture" to include "timber" is ambiguous. ODOT argues that "timber" is an undefined term in R.C. 303.01 and R.C. 519.01 (the zoning statutes) and for guidance we should look to R.C. 5713.30 (current agricultural use valuation "CAUV" statute), which defines "land devoted exclusively to agricultural use" as land that is "devoted exclusively to * * * the production for a commercial purpose of timber." ODOT argues that the limited references in the record "suggest that any clearing or harvesting of trees from Gahm's property was a one-time event, * * * not part of an ongoing commercial or business activity."

{¶ 10} Our primary concern when construing statutes is legislative intent. State v. Wolfe , 4th Dist., 83 N.E.3d 956, 2017-Ohio-6876, ¶ 16, citing State v. J.M. , 148 Ohio St.3d 113, 2016-Ohio-2803, 69 N.E.3d 642. In determining that intent we first look to the plain language of the statute. Id. Terms that are undefined by statute are given their plain, common, and ordinary meaning. State v. Anderson , 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 46, citing R.C. 1.42 ;

State v. Erskine , 2015-Ohio-710, 29 N.E.3d 272, ¶ 26 (4th Dist.). When a statute's language is clear and unambiguous, we apply it as written without interpreting or construing it. Wolfe at ¶ 16. "It is a cardinal rule of statutory construction that where the terms of a statute are clear and unambiguous, the statute should be applied without interpretation." Wilson v. Lawrence , 150 Ohio St.3d 368, 2017-Ohio-1410, 81 N.E.3d 1242, ¶ 11 (2017).

{¶ 11} R.C. 163.21(C)(2) provides:

* * * the court shall enter judgment in favor of the owner for costs and expenses, including attorney's and appraisal fees, that the owner actually incurred only if the property being appropriated is land used for agricultural purposes as defined in section 303.01 or 519.01 of the Revised Code * * * and the final award of compensation is more than one hundred fifty per cent of the agency's good faith offer * * *.

{¶ 12} ODOT concedes that the final award was more than one hundred fifty percent of its offer and that the only dispute is whether the property was "land used for agricultural purposes" as defined in R.C. 303.01 and 519.01, which have identical definitions of "agriculture." Both statutes also include the "marketing of agricultural products" in the definition of "agriculture" and the plain meaning of agriculture includes "the marketing of the resulting products." See generally https://www.merriam-webster.com/dictionary/agriculture.

{¶ 13} Under these statutes, "agriculture" is defined to include "timber," which means "growing trees or their wood." See generally https://www.merriam-webster.com/dictionary/timber. Because the plain and ordinary meaning of "timber" is unambiguous, we apply it without interpretation. We do not need guidance from other statutory provisions as ODOT argues. The dispositive test here is whether Gahm Properties used its property for agricultural purposes, i.e., timber, by growing trees or their wood and harvesting them for sale.

{¶ 14} Gahm Properties introduced evidence that it grew trees and harvested them. For example, without objection at trial it introduced an appraisal report that explicitly stated that "the owner [i.e., Gahm Properties] has harvested the heavily wooded areas" of the property. And the director's appraiser testified on cross-examination that it "doesn't surprise" him that Gahm "sold the timber." Although the appraiser later testified in a conclusory fashion on redirect examination that the property was not used for agricultural purposes, the trial court was free to credit his prior testimonial evidence as well as the landowners' appraisal report to conclude that Gahm Properties harvested the heavily wooded area of its property and sold the timber it harvested. See Wootten v. Culp , 2017-Ohio-665, 85 N.E.3d 198, ¶ 20 (4th Dist.) (the weight and credibility of the evidence are to be determined by the trier of fact, who is free to believe all, part, or none of any witness's testimony).

{¶ 15} Under these circumstances the trial court's award of costs and expenses to Gahm Properties under R.C. 163.21(C)(2) was not against the manifest weight of the evidence and was consistent with the plain language of the statute. We overrule ODOT's assignment of error and affirm the judgment of the trial court.

IV. CONCLUSION

{¶ 16} Gahm Properties is entitled to the award of costs and expenses under R.C. 163.21(C)(2) because the record contains competent and credible evidence from which the trial court could form a firm belief that the property was used for agricultural purposes, i.e., timber, by growing and harvesting trees or their wood. We affirm the judgment of the trial court.

JUDGMENT AFFIRMED.

Hoover, J.: Concurs in Judgment and Opinion.

Abele, J.: Dissents.


text:
    Brian G. PORTERFIELD, et al., Plaintiffs-Appellants, v. BRUNER LAND COMPANY, INC., Defendant-Appellee.
    NO. 16 HA 0019
    Court of Appeals of Ohio, Seventh District, Harrison County.
    Dated: December 13, 2017
    Atty. Michael C. Bednar, Atty. Aaron A. Richardson, Blake, Bednar, Blake & Richardson, 4110 Sunset Blvd., Steubenville, Ohio 43952, For Plaintiffs-Appellants
    Atty. Clay K. Keller, Atty. Andrew N. Schock, Jackson Kelly PLLC, 50 South Main St., Suite 201, Akron, Ohio 44308, For Defendant-Appellee
   JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Mary DeGenaro

OPINION

ROBB, P.J.

{¶ 1} Plaintiffs-Appellants Brian and Erin Porterfield appeal the decision of Harrison County Common Pleas Court granting summary judgment for Defendant-Appellee Bruner Land Company, Inc. This is a deed interpretation case. Appellants assert the clause drafted by Appellee did not reserve the oil, gas, and mineral interests for Appellee. Appellee contends it did. For the reasons expressed below, the trial court's grant of summary judgment for Appellee is affirmed.

Statement of the Case

{¶ 2} Consolidation Coal Company sold by limited warranty deed 160.987 acres in Harrison County, Ohio to Appellee in June 1996. The deed was recorded on January 17, 1997. That deed contains the following language, "EXCEPTING all the previously excepted and conveyed coal and mining rights." The deed did not contain any other clause reserving or excepting subterranean rights.

{¶ 3} In February 1997, Appellee executed a general warranty deed to itself dividing the 160 acres into four parcels. (referred to as "Bruner to Bruner deed"). This deed describes each parcel and states, "Excepting and Reserving to the former grantors, their heirs and assigns, all coal, oil, and gas." The deed was recorded on March 7, 1997. Only two of the parcels are at issue in this case-B-1 and B-2.

{¶ 4} Parcel B-2 was sold to Gary and Patricia Cooper on March 31, 1997. That deed contained the clause that was in the Bruner to Bruner deed-"Excepting and Reserving to the former grantors, their heirs and assigns, all coal, oil, and gas." The deed was recorded on April 21, 1997.

{¶ 5} Parcel B-1 was sold to C.T. and Teresa Hill on April 17, 1997. This deed also contained the clause that was in the Bruner to Bruner deed-"Excepting and Reserving to the former grantors, their heirs and assigns, all coal, oil, and gas." The deed was recorded on April 29, 1997.

{¶ 6} Both parcels were sold multiple times and eventually purchased by Appellants; Shane Lind sold Parcel B-1 to Appellants in August 2008, and James and Patricia Modon sold Parcel B-2 to Appellants in September 2013. The deeds in the chain of title contain the above excepting and reserving language.

{¶ 7} In May 2014, Appellants filed a complaint for quiet title in the Harrison County Common Pleas Court against Appellee. 5/30/14 Complaint. Appellants claimed the gas and oil interests were not reserved by Appellee and were conveyed to every subsequent purchaser. Appellee answered asserting it owned the gas and oil interest. 6/30/14 Answer.

{¶ 8} The case proceeded through discovery. Both Appellant Brian Porterfield and Doug Bruner, part owner of Appellee, were deposed. Doug Bruner testified the language used in the Bruner to Bruner deed, Bruner to Hill deed, and Bruner to Cooper deed was intended to reserve the coal, oil, and gas interest. He stated he and one of his secretaries drafted the language of the clause. Bruner deposition 14-15, 18, 21. The language used was put in the Bruner to Bruner deed to simplify later conveyances of the parcels; the parcels could be sold without having to draft new language for the conveyance. However, he admitted the Consolidation Coal Company was the former grantor to the Bruner to Bruner deed. Bruner deposition 23.

{¶ 9} Following discovery, Appellants filed a summary judgment motion. They argued the deeds were plain and unambiguous, and Appellee did not reserve the coal, oil and gas interest. The language used began in the Bruner to Bruner deed and the use of "former grantors" refers to Consolidation Coal Company. However, Consolidation Coal Company was not a party to the transaction and the deed could not transfer or reserve an interest in a third party. Therefore, the clause had no effect and every subsequent recitation of that clause had no effect. Appellants claimed the coal, oil, and gas interest transferred to every subsequent purchaser because there were no other reservation clauses in any of the other deeds in the chain of title. Accordingly, since they are the current owners, the coal, oil and gas interest passed to them. They alternatively argued the clause was ambiguous and the language should be construed against the drafter. They claimed extrinsic evidence should not be used to determine the intent of the language. On that basis, they asked for summary judgment in their favor.

{¶ 10} Appellee filed a combined response and motion for summary judgment. Appellee argued the language in the Bruner to Bruner deed was ineffective to reserve the interest for Consolidation Coal Company and itself, but it did show an intent to reserve the interest. Regardless, the clause in the subsequent Bruner to Cooper and Bruner to Hill deeds did reserve the interest to Bruner. Therefore, it claimed the language was plain and unambiguous. Alternatively, if the deed was deemed ambiguous, extrinsic evidence indicated it was the intent of the parties for Appellee to reserve the interest. Therefore, it contended summary judgment should be granted in its favor.

{¶ 11} Appellants filed a response and Appellee filed a reply to the response. 3/28/16 Appellant response; 4/7/16 Appellee reply.

{¶ 12} The trial court granted summary judgment for Appellee. 9/28/16 J.E. It concluded the language used in the Bruner to Bruner deed did not transfer an interest to Consolidation Coal Company and did not reserve the interest to Appellee. 9/28/16 J.E. However, when that same language was used in the Bruner to Cooper and Bruner to Hill deeds the language reserved the interest for Appellee because Appellee was the "former grantor" in the Bruner to Bruner transfer and a party to the transfer in the Bruner to Hill and Bruner to Cooper transfers. 9/28/16 J.E.

{¶ 13} Appellants timely appealed the trial court's decision.

Standard of Review

{¶ 14} An appellate court reviews the granting of summary judgment de novo; we apply the same test as the trial court. Comer v. Risko , 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. A trial court may grant summary judgment only when (1) no genuine issue of material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) the evidence can only produce a finding that is contrary to the non-moving party. Civ.R. 56(C).

{¶ 15} This case involves the interpretation of a clause in a deed, which means it is guided by contract construction rules. In the case of contracts, deeds, or other written instruments, the construction of the writing is a matter of law, which is reviewed de novo. Long Beach Assn., Inc. v. Jones , 82 Ohio St.3d 574, 576, 697 N.E.2d 208 (1998). Under a de novo review, an appellate court may interpret the language of the contract substituting its interpretation for that of the trial court.

Witte v. Protek Ltd. , 5th Dist. No. 2009CA00230, 2010-Ohio-1193, 2010 WL 1076070, ¶ 6, citing Children's Medical Center v. Ward , 87 Ohio App.3d 504, 622 N.E.2d 692 (2d Dist.1993).

{¶ 16} Written instruments "are to be interpreted so as to carry out the intent of the parties, as that intent is evidenced by the contractual language." Skivolocki v. East Ohio Gas Co. , 38 Ohio St.2d 244, 313 N.E.2d 374 (1974), paragraph one of the syllabus. "When construing a deed, a court must examine the language contained within the deed, the question being not what the parties meant to say, but the meaning of what they did say, as courts cannot put words into an instrument which the parties themselves failed to do." Johnson v. Consol. Coal Co. , 7th Dist. No. 13 BE 3, 2015-Ohio-2246, 2015 WL 3623635, ¶ 15 quoting, McCoy v. AFTI Properties, Inc. , 10th Dist. No. 07AP-713, 2008-Ohio-2304, 2008 WL 2026437, ¶ 8. If the terms of the written instrument are clear and unambiguous, courts must give the words their plain and ordinary meaning and may not create a new contract by finding the parties intended something not set out in the contract. Alexander v. Buckeye Pipe Line , 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978).

{¶ 17} However, when the plain language of the written instruments is ambiguous, then a court can look to parol evidence to resolve the ambiguity and ascertain the parties' intent. Illinois Controls, Inc. v. Langham , 70 Ohio St.3d 512, 521, 639 N.E.2d 771 (1994) ; City of Steubenville v. Jefferson Cty. , 7th Dist. No. 07JE51, 2008-Ohio-5053, 2008 WL 4416062, ¶ 22. This is a primary rule of contract construction. Envision Waste Services, LLC v. Cty. of Medina , 2017-Ohio-351, 83 N.E.3d 270, ¶ 15, quoting Michael A. Gerard, Inc. v. Haffke , 8th Dist. No. 98488, 2013-Ohio-168, 2013 WL 267296, ¶ 14.

{¶ 18} Terms in a contract are ambiguous if their meanings cannot be determined from reading the entire contract, or if they are reasonably susceptible to multiple interpretations. First Natl. Bank of Pennsylvania v. Nader , 2017-Ohio-1482, 89 N.E.3d 274, ¶ 25. Parol evidence is used only to interpret the terms, and not to contradict the terms. Id. , citing Blosser v. Enderlin , 113 Ohio St. 121, 134, 148 N.E. 393 (1925). "The decision as to whether a contract is ambiguous and thus requires extrinsic evidence to ascertain its meaning is one of law." Nader , quoting Ohio Historical Soc. v. Gen. Maintenance and Eng. Co. , 65 Ohio App.3d 139, 146, 583 N.E.2d 340 (10th Dist.1989).

{¶ 19} If parol evidence fails to clarify the meaning of the contract, then the contract is strictly construed against the drafter; interpreting the written instrument against the drafter is a secondary rule of contract construction. Envision Waste Services; Cadle v. D'Amico, 2016-Ohio-4747, 66 N.E.3d 1184, ¶ 33 (7th Dist.) ("Construing a contract against the drafter is a secondary rule of contract construction, and is applicable when the primary rules of contract construction * * * fail to clarify the meaning of the contract."). "Where that ambiguity is coupled with a material issue of fact supported by proper evidentiary materials, summary judgment is improper." Envision Waste Services , quoting Town & Country Co-op, Inc. v. Sabol Farms, Inc. , 9th Dist. No. 11CA0014, 2012-Ohio-4874, 2012 WL 5193400, ¶ 15.

{¶ 20} With those principles in mind, we address the assigned errors.

First Assignment of Error

"The trial court erred in denying Appellants' motion for summary judgment quieting title in the oil and gas underlying the subject premises in Appellants based on an invalid reservation in the Bruner to Bruner deed."

{¶ 21} The deeds to parcels B-1 and B-2 contain the following clause, "Excepting and Reserving to the former grantors, their heirs and assigns, all coal, oil, and gas." Both parties begin their arguments by asserting the clause is unambiguous. The parties agree the clause at issue was first used in the Bruner to Bruner deed and was included in all subsequent deeds, including Appellants' deeds. Both parties also agree this language did not and could not create a reservation for Consolidation Coal Company, who was the "former" grantor. Their respective arguments diverge at this point.

{¶ 22} Appellants argue the Bruner to Bruner deed could not reserve interest to Appellee because it is not the former grantor. Therefore, the entire reservation fails and there is no reservation by Appellee. Accordingly, every subsequent deed containing that language also fails to reserve the interest.

{¶ 23} Appellee disagrees. They contend that while the reservation did not create a reservation for Consolidation Coal Company, the reservation shows a clear intent to reserve the interest for itself. Regardless, it asserts this assignment of error has no practical effect on the outcome because the same language was used in the Bruner to Cooper and Bruner to Hill deeds, which when taken in conjunction with the Bruner to Bruner deed, creates a reservation by Appellee.

{¶ 24} At the outset, it is noted the trial court did not base its summary judgment ruling solely on the Bruner to Bruner deed. Its decision was based on the Bruner to Hill and Bruner to Cooper deeds read in conjunction with the Bruner to Bruner deed. Therefore, the trial court did not find the Bruner to Bruner deed reserved the coal, oil and gas interest for Appellee.

{¶ 25} Both parties are correct that the clause did not create a reservation for Consolidation Coal Company. As stated above, the language "Excepting and Reserving to the former grantors, their heirs and assigns, all coal, oil, and gas" first appeared in the Bruner to Bruner deed. The plain language of that exception/reservation would lead to the conclusion that a grantor prior to Appellee reserved all the coal, oil, and gas interest. However, when examining the chain of title, that is not the case. In the Consolidation Coal Company to Bruner deed the clause concerning subsurface interests stated, "EXCEPTING all the previous excepted and conveyed coal and mining rights." There was no reservation or exception for oil and gas and the unreserved coal interest; Consolidation Coal Company did not reserve or except any interest that was not previously reserved or excepted. Thus, the "former grantors" language in the Bruner to Bruner deed was not referring to Consolidation Coal Company reserving or excepting these additional interests.

{¶ 26} Furthermore, the Ninth Appellate District has stated, "A reservation or exception in a deed cannot serve to vest title in a stranger to the deed." Lighthorse v. Clinefelter , 36 Ohio App.3d 204, 521 N.E.2d 1146, paragraph four of the syllabus (9th Dist.1987) ; see also In re Allen , 415 B.R. 310, 318-19 (Bankr. N.D. Ohio 2009) (explaining Ninth Appellate district adopted the common law rule). Therefore, the Bruner to Bruner deed could not grant the Consolidation Coal Company a reservation in the oil and gas and unreserved coal because it was not a party to the Bruner to Bruner deed.

{¶ 27} Likewise, the language in the Bruner to Bruner deed did not reserve the unreserved coal, oil, and gas interest for Appellee. The clear language of that clause does not show Appellee intended to reserve the coal, oil and gas interest. Rather, the language "former grantors," is a notification of a previous reservation in the chain of title; it is not a reference to itself. If Appellee intended to reserve the interest in the Bruner to Bruner deed, then it would have stated, for example, Bruner Land Company reserves and excepts all oil and gas interests and any unreserved coal interests.

{¶ 28} Appellants' conclusion that the clause in the Bruner to Bruner deed fails in its entirety is not correct. As aforementioned, the Consolidation Coal Company to Bruner deed indicated any previously conveyed or reserved coal and mining rights were excluded from the conveyance. The clause in the Bruner to Bruner deed, at least as to previously conveyed or reserved coal rights, indicates those rights have been reserved or excepted by a former grantor or former grantors.

{¶ 29} Consequently, Appellee did not reserve the unreserved coal, oil and gas interest in the Bruner to Bruner deed for itself. That deed also did not reserve these interests for Consolidation Coal Company. That said, Appellee is correct; this determination has no practical effect on the outcome of the case because the trial court's summary judgment ruling was not a determination Appellee reserved the interest in the Bruner to Bruner deed. Therefore, while Appellants are correct on this proposition, it does not have a bearing on the outcome.

Second Assignment of Error

"The trial court erred in determining that Appellee successfully reserved the oil and gas underlying the subject premises as the 'former grantors' in the Bruner to Cooper and the Bruner to Hill deeds."

{¶30} In granting summary judgment to Appellee, the trial court relied on the Bruner to Hill and Bruner to Cooper deeds. It reasoned:

In both the Bruner to Hill and the Bruner to Cooper deeds the same language "excepting and reserving to the former grantors, their heirs and assigns, all coal and gas" is used for the reservation.
Applying the Plaintiffs [Appellants] logic the transfer from Bruner to Hill and Bruner to Cooper would be sufficient to create a severance of the coal, oil and gas rights as Bruner would be both the "former grantor" in the Bruner to Bruner transfer and a party to the transfer in the Bruner to Hill and Bruner to Cooper transfers.

9/28/16 J.E.

{¶ 31} Appellants argue this logic is flawed for multiple reasons. Appellants argue the Bruner to Cooper and Bruner to Hill deeds did not create a reservation for Appellee because the language "former grantors" is ineffective to create a new reservation. Furthermore, the deeds do not refer to who the former grantors were. The language should have stated current grantor if Appellee intended to reserve the interest. Also, the word "grantors" is plural, but Appellee is a singular company. Thus, the word grantors could not be a reservation for Appellee. Appellants claim that only when extrinsic evidence, and the chain of title is examined, can it be determined that Bruner is one of the former grantors. They assert extrinsic evidence cannot be used because the language is unambiguous.

{¶ 32} Appellee disagrees with Appellants argument. Appellee agrees with the trial court's reasoning. Appellee argues the use of "former grantors" does not negate the intent to reserve the oil, gas, and coal interest. It also argues the phrase "former grantors" has two meanings. One is former grantors in the chain of title. The other is the grantor mentioned earlier in the deed, such as former as opposed to later when referring to two grantors in one deed. Regardless of what interpretation is used, Appellee contends it is both.

{¶ 33} Appellee is correct that "former grantors" can have two meanings when the phrase is considered in isolation. However, in interpreting deeds we do not consider the phrase in isolation, we consider it in context. First Natl. Bank of Pennsylvania , 2017-Ohio-1482, 89 N.E.3d 274, ¶ 25 (Terms in a contract are ambiguous if their meanings cannot be determined from reading the entire contract.) In the Bruner to Hill and Bruner to Cooper deeds, and even in the Bruner to Bruner deed, there is only one grantor. Thus, use of "former" to refer to one grantor as opposed to another is not needed and does not make sense in this situation. Thus, in this instance former grantors refer to grantors in previous transactions in the chain of title.

{¶ 34} As to plural versus singular use of grantor, despite Appellants insistence to the contrary, the plural use of grantors in this situation is correct when the chain of title is considered. As discussed above, the Consolidation Coal Company to Bruner deed indicated the conveyance did not include any previously conveyed or excepted coal and mining rights. Thus, use of the plural is appropriate because it not only refers to Bruner who is the former grantor in the Bruner to Hill and Bruner to Cooper deeds, but any former grantor who conveyed or excepted coal and mining rights.

{¶ 35} Given that grammatically "former grantors" could include Appellee, the trial court's analysis of the plain language used in the Bruner to Hill and Bruner to Cooper deeds is correct. Those deeds reserved and excepted all coal, oil and gas in the former grantors. Appellee is a former grantor and therefore any coal, oil, and gas interests that were not reserved or conveyed were reserved to it. The coal and mining rights that were previously conveyed and excepted were reserved to that grantor or grantors.

{¶ 36} Admittedly, when the language, reserving and excepting to the former grantors was used in the Bruner to Bruner deed, the effect was Appellee did not reserve or except any interest to itself. The Bruner to Bruner deed, at the most, notified purchasers and title holders of previously excepted and conveyed coal and mining rights. However, when the language in the Bruner to Bruner deed was restated in the Bruner to Hill and Bruner to Cooper deeds it created a new reservation-a reservation for Appellee. Thus, given the chain of title and the plain meaning of the words, Appellee did reserve any coal, oil and gas interest that was not previously conveyed or excepted.

{¶ 37} This court concludes the Bruner to Hill and Bruner to Cooper deeds, taken in conjunction with the Bruner to Bruner deed, indicate Appellee reserved the oil and gas interest and any unreserved coal interest. This assignment of error has no merit.

Third Assignment of Error

"The trial court improperly considered extrinsic evidence by deciding a disputed issue of fact when it granted Appellee's motion for summary judgment."

{¶ 38} This assignment of error is an alternative to the above two assignments. Appellants contend the trial court considered extrinsic evidence and the chain of title to determine Appellee was a former grantor. Appellants assert the term "former grantors" is ambiguous and while extrinsic evidence could be considered when a term is ambiguous, it was for the jury to decide if Appellee was one of the "former grantors."

{¶ 39} As stated above, "former grantors" may have different meanings; however, when read in the context of the deed, it clearly is a reference to grantors in previous transactions in the chain of title. To determine who the former grantors are, one does have to look in the chain of title. However, looking through the chain of title is not looking at extrinsic evidence because the use of the words "former grantors" incorporates by reference the prior deeds. Ohio contract law recognizes the doctrine of incorporation by reference. Volovetz v. Tremco Barrier Sols., Inc. , 2016-Ohio-7707, 74 N.E.3d 743, ¶ 26 (10th Dist.). When a document is incorporated into a contract by reference, that document becomes part of the contract. Id. Therefore, the instruments must be read and construed together. Key Bank Natl. Assn. v. Columbus Campus, L.L.C. , 2013-Ohio-1243, 988 N.E.2d 32, ¶ 24 (10th Dist.).

{¶ 40} Consequently, this assignment of error is meritless.

Conclusion

{¶ 41} The trial court's reasoning and grant of summary judgment for Appellee is correct. The decision is hereby affirmed.

Donofrio, J.,concurs.

DeGenaro, J., concurs.


author: MELODY J. STEWART, J.:

text:
    Nadia MINAYA, et al., Plaintiffs-Appellants v. NVR, INC., d.b.a. Ryan Homes, Inc., et al., Defendants-Appellees
    No. 105445
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 14, 2017
    John F. Burke, Burkes Law, L.L.C., 614 West Superior Avenue, Suite 1500, Cleveland, OH 44113, ATTORNEY FOR APPELLANTS
    Leo M. Spellacy, Thrasher Dinsmore & Dolan, 1111 Superior Avenue, Suite 412, Cleveland, OH 44114, Ryan P. Sherman, Porter Wright Morris & Arthur, 41 S. High Street, Suite 2900, Columbus, OH 43215, For NVR, Inc., d.b.a. Ryan Homes, Inc.
    James A. Climer, Frank H. Scialdone, Mazanec Raskin, Ryder Co., L.P.A., 100 Franklin's Row, 34305 Solon Road, Solon, OH 44139, Kenneth A. Kraus, Law Director, City of Strongsville Law Department, 16099 Foltz Industrial Parkway, Strongsville, OH 44149, For City of Strongsville
    BEFORE: Stewart, J., McCormack, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   MELODY J. STEWART, J.:

{¶ 1} Shortly after moving into a house they purchased, plaintiff-appellants Nadia and Misael Minaya and their five children suffered unexplained health issues. They later discovered black mold in various locations in their house. Subsequent home inspections uncovered what they described as "numerous problems with the home" that caused water penetration. They brought suit against the builder of the house, defendant-appellee NVR, Inc., d.b.a. Ryan Homes, Inc. They alleged Ryan Homes fraudulently designed the house, was grossly negligent in building the house, and concealed these facts, with the result being water infiltration and the formation of black mold that proximately caused their health issues. The Minayas also brought claims against defendant-appellee city of Strongsville (the "city") alleging that it did not inspect the house before issuing a certificate of occupancy and was otherwise negligent in failing to inspect the house. The counts against both defendants sought an award of punitive damages.

{¶ 2} Ryan Homes filed a motion to dismiss the complaint on grounds that the house was built in 1988 and the Minayas' claims, filed in 2015, were barred by the ten-year statute of repose. The city filed a motion for judgment on the pleadings claiming that it was immune from suit, owed no duty of care to the Minayas, and that it could not be liable for punitive damages. The court granted both motions and this appeal followed. The two assignments of error challenge both the dismissal in favor of Ryan Homes and judgment on the pleadings in favor of the city.

I. Motion to Dismiss

{¶ 3} The basis for Ryan Homes' motion to dismiss was that the Minayas' claims were barred by the ten-year statute of repose in R.C. 2305.131 because the company built the home in 1988 and that the Minayas did not bring their claims until 2015. Ryan Homes acknowledged that the Minayas pleaded fraud, a cause of action that is outside the statute of repose, but maintained that the Minayas did not plead their fraud claim with the requisite particularity and, in any event, that Ryan Homes made no representations of any kind to the Minayas, who it claimed were at least the third owners of the house.

{¶ 4} Civ.R. 12(B)(6) states that a complaint is not subject to dismissal for failure to state a claim upon which relief may be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle the plaintiff to relief. Doe v. Archdiocese of Cincinnati , 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11, citing O'Brien v. Univ. Community Tenants Union, Inc. , 42 Ohio St.2d 242, 327 N.E.2d 753 (1975). Therefore, "[a]s long as there is a set of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss."

York v. Ohio State Hwy. Patrol , 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991).

{¶ 5} A "statute of repose extinguishes a cause of action after a fixed period of time, regardless of when the cause of action accrued." Jones v. Walker Mfg. Co. , 8th Dist. Cuyahoga No. 97301, 2012-Ohio-1546, 2012 WL 1142889, ¶ 3, citing Sedar v. Knowlton Const. Co. , 49 Ohio St.3d 193, 195, 551 N.E.2d 938 (1990). With respect to damages for bodily injury arising out of defective and unsafe conditions of an improvement to real property, no cause of action shall accrue "later than ten years from the date of substantial completion or improvement." R.C. 2305.131(A)(1). The intent behind R.C. 2305.131 is, among other things, to recognize that after the completion of the construction of an improvement to real property, builders lack control over the improvement and have no ability to maintain the premises, lack control over the effects that weather might have to the improvement, and that it would place an unacceptable burden on builders to maintain records and other documentation pertaining to design and construction for a period in excess of ten years. See Section 3(B) of S.B. 80.

{¶ 6} There is an exception to the affirmative defense of the statute of repose that exists "if the defendant engages in fraud in regard to furnishing the design, planning, supervision of construction, or construction of an improvement to real property * * *." R.C. 2305.131(C).

{¶ 7} The Minayas brought two causes of against Ryan Homes: Count 1 alleged fraudulent concealment; Count 2 alleged "gross negligence and negligence."

{¶ 8} With respect to Count 2, we agree that this claim is barred by the statute of repose because it does not make any allegation of fraud that would take it outside the statute of repose. Count 2 alleges that "Defendant Ryan Homes owed plaintiffs a duty to exercise due care and caution and to build and develop the subject property in a prudent and workmanlike manner." Complaint at ¶ 84. The Minayas alleged that Ryan Homes breached this duty by building the house in a "negligent and unworkmanlike manner" that allowed the house to become environmentally contaminated. Complaint at ¶ 86-87.

{¶ 9} The allegations in Count 2 are simple negligence claims of a kind that are specifically encompassed by the statute of repose. In fact, the Minayas appear to concede implicitly that Count 2 is subject to the statute of repose because their brief in opposition to Ryan Homes' motion to dismiss does not address this count at all. Given the plain reading of the complaint and the Minayas' failure to make any argument against dismissal, we concluded that the court did not err by dismissing Count 2 as being subject to the statute of repose.

{¶ 10} With respect to Count 1 and the fraudulent concealment cause of action, the Minayas concede that Ryan Homes finished building the house in 1988 and their claims relating to the construction of the house would ordinarily be barred by the statute of repose. Complaint at ¶ 64. However, they assert that they pleaded a claim of fraudulent concealment to which the statute of repose does not apply.

{¶ 11} We agree with Ryan Homes, however, that the Minayas failed to plead their fraudulent concealment claim with the kind of particularity required by Civ.R. 9(B). That rules states that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." In the context of pleading fraud, the word "particularity" means that the pleading must contain allegations of fact which tend to show each and every element of a cause of action for fraud.

CitiMortgage, Inc. v. Hoge , 196 Ohio App.3d 40, 2011-Ohio-3839, 962 N.E.2d 327, ¶ 23 (8th Dist.).

{¶ 12} The elements of a fraudulent concealment are: (1) a concealment of a fact when there is a duty to disclose (2) that is material to the transaction at hand, (3) made falsely, with knowledge of its falsity or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, and (4) with intent to mislead another into relying upon it, (5) justifiable reliance, and (6) resulting injury proximately caused by the reliance. Groob v. KeyBank , 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 47 ; Northpoint Properties v. Charter One Bank , 8th Dist. Cuyahoga No. 94020, 2011-Ohio-2512, 2011 WL 2112666, ¶ 60. All these elements must be present, and the absence of any element precludes recovery. Westfield Ins. Co. v. HULS Am., Inc. , 128 Ohio App.3d 270, 296, 714 N.E.2d 934 (10th Dist.1998).

{¶ 13} The basis for the fraudulent concealment claim is that "Ryan Homes built the subject property in an unworkmanlike manner" by committing numerous building code violations, Complaint at ¶ 70, 73. The Minayas further alleged that Ryan Homes purposely hid these housing code violations "in places in which others could not readily investigate or inspect, such as behind drywall, or in the underground piping." Id. at ¶ 73.

{¶ 14} Missing from Count 1 is an allegation that Ryan Homes made any false statements or failed to disclose any material fact. What the Minayas did claim was that Ryan Homes "acted with the intent to mislead the purchasers of the home, in that these defects were so egregious logic deems they could not possibly all be honest mistakes, and that said defects were items that would not expose themselves or their consequences until a quantity of time passed." Id. at ¶ 74. The Minayas reassert the same logical proposition with respect to the location of the negligence: "Logic dictates since the defects concealed were located in areas not readily available to inspect or investigate, Ryan Homes intended for all purchasers of the home to rely on the fraudulent concealment when purchasing the home, not just the original purchaser." Complaint at ¶ 78.

{¶ 15} Allegations in a complaint must be supported by facts. Mitchell v. Lawson Milk Co. , 40 Ohio St.3d 190, 193, 532 N.E.2d 753 (1988). The Minayas did not rely on specific facts to support their cause of action for fraudulent concealment, but invoked logic to allege that Ryan Homes' negligence in designing and building the house was so pervasive that it must have intended to make the mistakes it did and then must have intentionally covered up those mistakes. This is a form of causal reductionism: the Minayas conclusion that Ryan Homes acted intentionally because there were so many defects in the house fails to account for other possibilities that did not require intentional action. The many defects alleged in the house may have been mere coincidence or gross ineptitude. One cannot infer intent to commit fraud based solely on the assertion that the errors allegedly committed were so numerous as to be intentional.

{¶ 16} The same rationale applies to the Minayas' argument that Ryan Homes purposely hid its negligence in order to avoid detection. Notably, the alleged building code violations consisted of improperly installed insulation, piping, or electrical systems. We agree with Ryan Homes that "[i]t would be an odd home indeed if the piping, electrical systems, insulation and related elements about which Plaintiffs complain were open to view." Motion to dismiss at 8. That the alleged defects were located in places concealed from direct examination does not permit the inference that Ryan Homes fraudulently concealed them.

{¶ 17} A party cannot avoid the statute of repose by "clever pleading" that attempts to transform a negligence claim into a fraud claim. Mardis v. Meadow Wood Nursing Home , 12th Dist. Brown No. CA2010-04-007, 2010-Ohio-4800, 2010 WL 3836154, ¶ 12 ; see also York v. Hutchins , 12th Dist. Butler No. CA2013-09-173, 2014-Ohio-988, 2014 WL 1356699, ¶ 15. In addition, the trial court need not accept unsupported conclusions in a complaint for purposes of Civ.R. 12(B)(6). State ex rel. Ohio Civ. Serv. Emps. Assn. v. State , 146 Ohio St.3d 315, 2016-Ohio-478, 56 N.E.3d 913, ¶ 21. The complaint states a case of negligence and the Minayas' pleading fraudulent concealment without the requisite particularity cannot defeat the application of the statute of repose.

{¶ 18} We also find dismissal to be warranted because the fraudulent concealment claim depended on representations made to third parties. The Minayas claim that Ryan Homes made representations concerning a concealed, material fact. It is undisputed that the Minayas, being at least the third owners of the house, had no actual contact with Ryan Homes that induced them to purchase the house. "A plaintiff fails to state a valid cause of action for fraud when he alleges that a third-party relied on misrepresentations made by a defendant and that he suffered injury from that third-party's reliance." Moses v. Sterling Commerce Am., Inc. , 10th Dist. Franklin No. 02AP-161, 2002-Ohio-4327, 2002 WL 1938575, ¶ 21. See also Baddour v. Fox , 5th Dist. Licking No. 03CA-77, 2004-Ohio-3059, 2004 WL 1327925, ¶ 41 ("A party is unable to maintain an action for fraud where the fraudulent representations were not made directly to him to induce him to act on them in matters affecting his own interests."); Lisboa v. Tramer , 8th Dist. Cuyahoga No. 97526, 2012-Ohio-1549, 2012 WL 1142920, ¶ 32 (no valid cause of action for fraud based on statements defendants made to Internal Revenue Service).

{¶ 19} The Minayas do not dispute that Ryan Homes did not make any statements to them, Complaint at ¶ 66, but argue that policy considerations support a fraud exception in cases where a builder engages in fraudulent concealment. We have implicitly rejected this proposition. In Temple v. Fence One, Inc. , 8th Dist. Cuyahoga No. 85703, 2005-Ohio-6628, 2005 WL 3436354, ¶ 52, Temple claimed to have suffered injuries from chemicals used to treat wood in a fence installed in a neighbor's yard, alleging that the company that treated the wood fraudulently misrepresented that the fence was "safe." We held that "[a] party is unable to maintain an action for fraud, however, where the fraudulent representations were not made directly to him to induce him to act on them in matters affecting his own interest." Id. at ¶ 52. Because Temple did not rely on any representations made by the company, we held that her fraud claim failed as a matter of law. Id. The facts in Temple are not so dissimilar to those alleged in this case that we have reason to depart from established precedent.

{¶ 20} The first assignment of error is overruled.

II. Motion for Judgment on the Pleadings

{¶ 21} The Minayas brought two causes of action against the city: Count 3 alleged that the city acted in a wanton and reckless manner by failing to inspect the house and then falsifying documents to show that the house had passed inspection; Count 4 alleged that the city fraudulently falsified and altered its inspection records in order to issue an occupancy permit for the premises. The city filed a motion for judgment on the pleadings in which it argued that building inspections were a governmental function to which there were no exceptions to political subdivision immunity, that it owned no duty of care to the Minayas, and that it was immune from intentional tort claims. The court agreed with the city and granted the city's motion.

{¶ 22} A Civ.R. 12(C) motion for judgment on the pleadings presents questions of law, the determination of which is restricted solely to the allegations in the pleadings and any writings attached to the pleadings. Peterson v. Teodosio , 34 Ohio St.2d 161, 297 N.E.2d 113 (1973). A motion for judgment on the pleadings is limited to the pleadings and can be granted when the court, after construing the pleadings most favorably to the nonmoving party, finds beyond doubt that the nonmoving party could prove no set of facts in support of a claim for relief. State ex rel. Midwest Pride IV, Inc. v. Pontious , 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996).

{¶ 23} A political subdivision is immune from damages in a civil action for "loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental * * * function." R.C. 2744.02(A)(1). Building inspections are a governmental function. See R.C. 2744.01(C)(2)(p) ("inspections in connection with building, zoning, sanitation, fire, plumbing, and electrical codes" are governmental functions); Stanton v. Cleveland , 8th Dist. Cuyahoga No. 82614, 2003-Ohio-6618, 2003 WL 22922331, ¶ 28 ; Ryan v. Columbus , 10th Dist. Franklin No. 00AP-910, 2001 WL 214128, *2-3 (Mar. 6, 2001). With the city's immunity presumptively established, we next determine whether there are any exceptions to immunity listed in R.C. 2744.02(B). None of the exceptions to immunity apply: the Minayas' claims against the city did not involve the operation of a motor vehicle; were not caused by a city employee's negligent performance with respect to a proprietary function; did not involve injury caused by the negligent failure to keep roads in repair; did not occur on the grounds of buildings used in connection with a governmental function; and liability was not expressly imposed on the city under another section of the Revised Code. See R.C. 2744.02(B)(1)-(6).

{¶ 24} The Minayas argue that the employee who conducted the housing inspection acted in bad faith or in a wanton or reckless manner, so the city is not immune under R.C. 2744.03(A)(6)(b). That section states that "an employee" is immune from liability unless "[t]he employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner[.]" This section, "by its very terms applies only to individual employees and not to political subdivisions." Fabrey v. McDonald Village Police Dept. , 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994) ; Sudnik v. Crimi , 117 Ohio App.3d 394, 398, 690 N.E.2d 925 (8th Dist.1996) ( R.C. 2744.03(A)(6)"applies only to individual employees and not to political subdivisions and, therefore, has no effect on the alleged liability of the city."). The Minayas brought suit against the city: they did not name any employees of the city. Having failed to name any employees as defendants, R.C. 2744.03(A)(6) is inapplicable.

{¶ 25} The Minayas also argued that the city's building inspector acted in a wanton and reckless manner by failing to inspect the premises before issuing a certificate of occupancy. R.C. 2744.03(A) sets forth several defenses or immunities that may be asserted by a political subdivision or an employee to establish nonliability. Among those defenses are that the political subdivision is immune from liability if the injury resulted from the exercise of judgment or discretion in using personnel, unless the judgment or discretion was exercised "with malicious purpose, in bad faith, or in a wanton or reckless manner." R.C. 2744.03(A)(5). Citing Cater v. Cleveland , 83 Ohio St.3d 24, 697 N.E.2d 610 (1998), the Minayas argue that they adequately pleaded that the city housing inspector acted in a wanton or reckless manner by failing to inspect the actual property and falsifying the inspection report, and that the city failed to properly train and/or monitor the inspector's actions.

{¶ 26} Cater applies to this case, but not in the way that the Minayas assert. Cater made it clear that " R.C. 2744.03(A)(5) is a defense to liability; it cannot be used to establish liability." Id. at 32, 697 N.E.2d 610. In other words, R.C. 2744.03(A)(5) applies only if one of the exceptions to immunity set forth in R.C. 2744.02(B) exists. Caraballo v. Cleveland Metro. School Dist. , 8th Dist. Cuyahoga No. 99616, 2013-Ohio-4919, 2013 WL 5970373, ¶ 32. As previously noted, the city's immunity has been established and none of the R.C. 2744.02(B) exceptions to immunity apply in this case, so R.C. 2744.03(A)(5) is inapplicable.

{¶ 27} Finally, the Minayas claim that the city failed to properly train and/or monitor the inspector's actions in violation of Strongsville Ordinances 1242.09 (certificate of occupancy) and 1410.03 (duty of commissioner of buildings to inspect buildings).

{¶ 28} To establish a negligence action, a plaintiff must establish the existence of a duty, breach of that duty, and an injury proximately caused from the same. Menifee v. Ohio Welding Prods., Inc. , 15 Ohio St.3d 75, 472 N.E.2d 707 (1984).

{¶ 29} The cause of action for failing to train or monitor employees wrongly assumes that the city owed the Minayas a duty of care. Nothing in the applicable building ordinances indicates that the city intended to grant individuals a private right of action. Ordinances like these "do not create a duty owed to any specific or particular person, but rather, create duties owed only to the general public and that noncompliance with such [ordinances] can therefore not be the basis of a tort action." Cain v. State, Dept. of Hwy. Safety , 14 Ohio App.3d 105, 106, 470 N.E.2d 208 (10th Dist.1984).

{¶ 30} We addressed a similar issue in Delman v. Cleveland Hts. , 8th Dist. Cuyahoga No. 52558, 1987 WL 17209 (Sept. 17, 1987), where Delman brought suit alleging that the city of Cleveland Heights was negligent in conducting point of sale house inspections. Noting that the point of sale inspection indicated an intent to "promote the welfare of the community, as opposed to providing a means of insuring the interests of individual buyers," id. at *2, we held that the ordinance did not create a right of private action. Id. at *3. See also Sowell v. Trotter , 8th Dist. Cuyahoga No. 49681, 1986 WL 6961 (June 19, 1986) (point of sale inspection ordinance "was enacted solely to protect the health and safety of the residents of the city and to preserve the housing stock in the community.").

{¶ 31} Strongsville Ordinances 1220.02 expressly states that the purpose and intent of its planning and zoning code (of which Strongsville Ordinances 1242.09 relating to certificates of occupancy is a part) is to "promote and protect the public health, safety, convenience, comfort, prosperity and general welfare of the City[.]" Although there is no similar statement of purpose and intent for Strongsville Ordinances 1410.03, we conclude that the city's building department, being charged with conducting various inspections, is also carrying out duties to promote and protect the public health, safety, convenience, comfort, prosperity, and general welfare. The safety of buildings is a concern not only for the owners, but for the occupants of those buildings and any neighboring structures. With both ordinances being enacted to promote the general welfare, they do not create a private right of action. The court did not err by granting judgment on the pleadings.

{¶ 32} Judgment affirmed.

      The Minayas named a third defendant, High Pointe Construction and Development, L.L.C. After the summary judgments in the lower court were granted, they obtained a default judgment against High Pointe. High Pointe is not a party to this appeal.