[Cite as Ayersville Water & Sewer Dist. v. Geiger,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY

MARY GEIGER, ET AL.,

PLAINTIFFS-APPELLANTS, CASE NO. 4-11-19

v.

AYERSVILLE WATER AND SEWER DISTRICT, OPINION

DEFENDANT-APPELLEE.

AYERSVILLE WATER AND SEWER DISTRICT,

PLAINTIFF-APPELLEE, CASE NO. 4-11-20

v.

MARY E. GEIGER, OPINION

DEFENDANT-APPELLANT.

Appeals from Defiance County Common Pleas Court Trial Court Nos. 10-CV-40901 and 11-CV-41121

Judgments Affirmed

Date of Decision: June 18, 2012 Case Nos. 4-11-19 and 4-11-20

APPEARANCES:

Timothy C. Holtsberry for Appellants, Mary and Jennifer Geiger

Eric J. Luckage and Sean McCarter for Appellee

PRESTON, J.

{¶1} Mary Geiger (“Geiger”) and Jennifer Geiger (“Jennifer”), appeal the

Defiance County Court of Common Pleas’ judgment in favor of the Ayersville

Water and Sewer District (“the District”) following a bench trial. Geiger and

Jennifer’s claims include that the trial court incorrectly determined their property

was included in the District and subject to its authority, that the District’s

easement over their property was invalid, and that the trial court committed

procedural errors during the District’s appropriation action. For the reasons that

follow, we affirm.

{¶2} On May 28, 1992, the Ohio Environmental Protection Agency

(“OEPA”) issued final findings and orders requiring the District to submit a plan

for sewerage improvements to address unsanitary conditions and water quality

criteria violations. (OEPA Director’s Final Findings and Orders 2005, Def. Ex.

N). The OEPA found that many of the homes in the District “are served by

inadequate or failing on-site or aeration sewage disposal systems that discharge

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raw or partially treated sewage.” (Id.). The District subsequently submitted a

general sewerage plan, which the OEPA approved in March of 1993. (Id.).

{¶3} On November 4, 1993, the OEPA issued orders to the District

requiring it to implement the general sewerage plan. (Id.). The OEPA approved

revisions to the District’s plan in September 1994, February 1997, and May 1997.

(Id.). The plan was broken into implementation phases. (Id.).

{¶4} On October 27, 1998, the Ayersville Water and Sewer District Board

of Trustees (“the Board”) passed Resolution 9811-020, which annexed portions of

Defiance Township pursuant to R.C. 6119.05. (Def. Ex. HH). The purpose of the

annexation was to include the Defiance Township territory in the District’s

sanitary sewer system. (Id.). Geiger’s property was part of the Defiance

Township territory the Board annexed. (Id.); (Mary Geiger Deed, Def. Ex. Q). At

that time, Geiger’s property abutted State Route 66 and Watson Road. (Def. Ex.

Q).

{¶5} In July 1999, the District submitted to the OEPA a permit to install

(“PTI”) application and detailed plans for the first phase of sewerage. (Def. Ex.

N). The OEPA approved the PTI and sewerage plan in January 2000. (Id.).

{¶6} In March 2004, the District submitted a PTI application and detailed

plans for the second phase of sewerage. (Id.). The OEPA approved the PTI and

sewerage plans the following month. (Id.).

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{¶7} In April 2004, Merlin Butler (“Butler”) met with Geiger to obtain an

easement to connect her home to the District’s sewer system. (Butler Depo. at 8-

12).1 Geiger signed a blanket easement permitting the District to install “a

wastewater treatment grinder pump, a control box to be placed on the existing

structure, buried wires connecting the pump and the control box to the existing

structure’s electric meter an [sic] appurtenances.” (Easement, Def. Ex. D). The

easement further stated that “the intent is for the easement to be 20.00 feet in even

width centered on the sewer line, grinder pump, electrical lines, monitor lines, and

appurtenance to be constructed.” (Id.). Geiger claims that Butler represented to

her that the easement would be from her home to a sewer connection on Watson

Road. (Trial Tr. at 154). Butler contends that the plans he showed Geiger

indicated the District would connect her home to the sewer along State Route 66,

but that he told her it might be possible for the Board to approve an extension to

connect her home along Watson Road. (Butler Depo. at 23-24). During the

meeting, Butler learned Geiger had a barn containing bathroom facilities that

might also require sewer service. (Id. at 32-36). The Board subsequently

determined that Geiger’s barn would require separate sewer service with its own

grinder pump. (Equalization Board Report, Def. Ex. CC).

1 The parties jointly entered Butler’s deposition, which was taken for the purpose of using it at trial, into evidence. (Trial Tr. At 333-334). Butler was unavailable during the two day trial. (Butler Depo. at 7).

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{¶8} On August 5, 2008, Butler met with Geiger to obtain a second

easement to install a grinder pump for the barn. (Butler Depo. at 52-46). Geiger

refused to sign the second easement. (Id.).

{¶9} Geiger had a hearing before the Equalization Board on December 13,

2008. (Id.). The Board had appointed the Equalization Board to hear objections

to estimated assessments for the sewer project. (Id.). Geiger objected to the

Board’s determination that she would need two grinder pumps (“EDUs”), one for

her house and one for her barn. (Id.). The Equalization Board determined that

“two EDUs were properly assessed according to the Assessment Policy as a

business is operated out of a separate building at the location. Since the property

is not serviced by public water, it is impossible to determine the volume of water

usage. Thus, the Equalization Board recommends that one EDU for the house and

one EDU for the business be assessed.” (Id.). The Board accepted the

Equalization Board’s report on January 22, 2009. (Jan. 22, 2009 Board Meeting

Minutes, Def. Ex. EE).

{¶10} On August 24, 2009, Geiger conveyed five acres of her property

abutting State Route 66 to her daughter, Jennifer. (Jennifer Geiger Deed, Def. Ex.

S). Jennifer’s deed stated that the property was subject to the District’s easement.

(Id.). Geiger retained ownership of the remaining ten acres of land abutting

Watson Road. (Def. Ex. Q). Geiger contended that her land was no longer part of

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the District after the conveyance because it no longer abutted the sewer line on

State Route 66. (Trial Tr. at 87).

{¶11} On July 22, 2010, the District installed sewage facilities on Geiger’s

property. (Trial Tr. at 86). On September 14, 2010, Geiger filed a complaint

against the District in the Defiance County Court of Common Pleas in case

number 10 CV 40901. (Case No. 10 CV 40901, Doc. No. 65). Geiger alleged that

the District had installed the sewage facilities with an invalid easement and had

trespassed on her property. (Id.). Geiger sought a declaratory judgment that her

property was not accessible to the District sewer system and monetary damages.

(Id.).

{¶12} On November 23, 2010, the District notified Geiger of its intent to

acquire an easement across her property for the purpose of installing sewer

facilities to her barn. (Notice of Intent to Acquire, Def. Ex. OO). On January 18,

2011, the District filed a complaint for appropriation of Geiger’s property in the

Defiance County Court of Common Pleas in case number 11 CV 41121. (Case

No. 11 CV 41121, Doc. No. 44). The District contended that it was authorized to

appropriate an easement on Geiger’s property to complete construction of the

sewer system pursuant to R.C. 6119.11. (Id.).

{¶13} On June 8 and 9, 2011, the Defiance County Court of Common Pleas

held a single bench trial on both cases. (Trial Tr. at 9). On July 26, 2011, the trial

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court issued its opinion and judgment entry resolving all of the issues in favor of

the District by determining that: (1) Geiger was part of the District; (2) Geiger’s

property was accessible to the sewer system; (3) Geiger’s connection to the

District’s sewer system is necessary and proper; (4) the District’s easement was

valid and unaltered; (5) the District did not trespass on Geiger’s property; (6) the

District did not obtain the easement through fraud or misrepresentation; (7) the

District is immune from Geiger’s fraud and trespass claims; (8) the statute of

limitations bars Geiger’s fraud claim; (9) the District did not owe monetary

refunds to Geiger; and (10) Geiger owed the District $1,510.71 as of the date of

trial. (Case No. 10 CV 40901, Doc. No. 12); (Case No. 11 CV 41121, Doc. No.

12).

{¶14} The only remaining issue after the trial court’s judgment entry was

the value of the property the District appropriated from Geiger. (11 CV 41121,

Doc No. 6). On September 1, 2011, the trial court issued an agreed judgment

entry determining the value of the appropriated property was $97.00. (Id.).

{¶15} On August 22, 2011, Geiger and Jennifer filed a notice of appeal on

case number 10 CV 40901. (10 CV 40901, Doc. No. 10). On September 22,

2011, Geiger filed a notice of appeal on case number 11 CV 41121. (11 CV

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41121, Doc. No. 4).2 Geiger now raises 15 assignments of error for our review.

For purposes of our discussion, we will first address whether Geiger’s property

was within the District and subject to its authority; second, whether Geiger’s

property was accessible to the public sewer project; third, whether the District

obtained a valid easement; fourth, whether the District trespassed on Geiger’s

property when it installed the sewer line and appurtenances; fifth, whether the

District’s 2010 regulations violate the Due Process Clause; sixth, whether the

District had a public purpose sufficient to appropriate Geiger’s property; and

seventh, whether the trial court committed reversible procedural errors. As a

result, we will address some of the assignments of error out of the order presented

in the briefs and combine them where appropriate.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT MARY’S PROPERTY IS WITHIN THE BOUNDARIES OF THE AYERSVILLE WATER AND SEWER DISTRICT AND SUBJECT TO ITS AUTHORITY

{¶16} In her first assignment of error, Geiger argues her property is not part

of the District, and therefore, she should not be required to connect to the sewer.

Geiger contends that when the District annexed territory from Defiance Township,

it described the parcels of property it was annexing as parcels that abut or have

2 Case number 10 CV 40901 is appellate case number 4-11-19 and 11 CV 41121 is appellate case number 4-11-20. This Court consolidated the two cases into appellate case number 4-11-20 for purposes of filing the transcript of the proceedings, filing briefs, and oral argument.

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access to the sewer main. Geiger argues that the sewer main runs down State

Route 66. Geiger contends that since she conveyed the portion of her property

abutting State Route 66 to Jennifer in 2009, her property is now located on Watson

Road and does not abut the sewer main. Geiger further argues that since her

property does not currently abut a sewer main, it is not part of the District and

should not be connected to the sewer system.

{¶17} The interpretation of statutory authority is a question of law reviewed

de novo upon appeal. Essman v. City of Portsmouth, 4th Dist. No. 09CA3325,

. Our review begins with the plain language of the statute at

issue. Iams v. Daimler Chrysler Corp.,

,

(3d Dist.). “It is a court’s responsibility to enforce the literal language of a

statute wherever possible; to interpret, not legislate. Unless a statute is ambiguous,

the court must give effect to its plain meaning.” Ohio Bur. of Workers’ Comp. v.

Dernier, 6th Dist. No. L-10-1126,

, ¶ 26, citing Cablevision of the

Midwest, Inc. v. Gross,

(1994).

{¶18} R.C. 6119.05 permits a county, township, or municipal corporation

to petition a regional water and sewer district to include territory in its district.

R.C. 6119.05 specifically provides:

At any time after the creation of a regional water and sewer district,

any county, township, or municipal corporation whose territory is

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not wholly included within such district may file an application with

such district setting forth a general description of the territory it

desires to have included within such district, the necessity for the

inclusion of such territory within the district, that it will be

conducive to the public health, safety, convenience, or welfare, and

that it will be practical and feasible for such territory to be included

within the district. If said application is approved by a majority of

the board of trustees of said district, the territory described in said

application shall thereupon become part of such district.

R.C. 6119.05 also permits individuals who live in the area proposed to be included

in the sewer and water district the option of filing a petition against their inclusion.

Myers v. Trustees of Southwest Regional Water Dist., 12th Dist. No. CA98-07-

146, *3 (Apr. 19, 1999). R.C. 6119.05 states:

Such inclusion shall become effective unless, prior to the ninetieth

day following the approval of the board or the order of the court for

inclusion, qualified electors residing in the area proposed to be

included in such district equal in number to a majority of the

qualified electors voting at the last general election in such area file

with the secretary of the board of trustees of the district in which

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inclusion is proposed a petition of remonstrance against such

inclusion.

{¶19} In the present case, the Board met on October 27, 1998 regarding

Highland, Richland, and Defiance Townships’ petitions for inclusion in the

District. (Resolution for Application to Include Territory in the Ayersville Water

and Sewer District, Pl. Ex. 10). Pursuant to R.C. 6119.05, the Board decided to

include “the parcels of property in the township that abut or have access to the

main and branch sewers” in the District. (Id.). These parcels were recorded on a

map and further described in a construction schedule. (Id.). The construction

schedule included “S.R. No. 66 from a point 2,840 feet South of Bowman Road,

Northerly to a point 2,640 feet North of Watson Road” and “Watson Road from a

point 200 feet West of S.R. No. 66 East to a point 200’ East of Dohoney Road.”

(Id.). Dan Lee Limber (“Limber”), the District’s manager, testified that the

resolution placed property along State Route 66 into the District. (Trial Tr. at 270-

271). In 1998, this property included Geiger’s parcel. (Id.).

{¶20} Geiger argues that her property is no longer part of the District

because it is along Watson Road rather than State Route 66 after her conveyance

to Jennifer, and thus, not part of the description “S.R. No. 66 from point 2,840 feet

South of Bowman Road, Northerly to a point 2,640 feet North of Watson Road.”

However, the District approved Defiance Township’s petition and included

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Geiger’s property in the District in 1998. (Pl. Ex. 10). Geiger did not convey the

section of her property bordering State Route 66 to Jennifer until 2009. (Def. Ex.

S). Thus, at the time the Board passed its resolution including Defiance Township

property in the District, Geiger’s property bordered State Route 66 and was part of

the property added to the District.

{¶21} Geiger has not cited, and this Court has not found, any case law

establishing that an individual property owner can remove property that was

previously added to a water and sewer district pursuant to R.C. 6119.05 by later

subdividing and conveying a portion of that property. To the contrary, R.C.

6119.05 establishes that a property owner can prevent property from being

included in a water and sewer district through a petition of remonstrance against

the inclusion. Myers at *3; R.C. 6119.05. Furthermore, R.C. 6119.05

“unequivocally and clearly reads that the board of trustees’ approval of the

inclusion will not take effect if the majority of the qualified electors file a written

remonstrance with the secretary of the board of trustees. Thus, a petition of

remonstrance when duly filed makes ineffectual the action of the board of

trustees.” Myers at *4.

{¶22} In the present case, Geiger has not presented any evidence that she or

anyone else pursued this remedy. Instead, Geiger attempted to remove her

property from the District by subdividing and conveying a portion of her property,

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a remedy that lacks legal support. Consequently, we conclude that the District

properly included Geiger’s property within its boundaries and that Geiger’s

property remains subject to the District’s authority.

{¶23} Geiger’s first assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT MARY’S PROPERTY IS ACCESSIBLE TO AYERSVILLE WATER AND SEWER DISTRICT’S SEWERAGE SYSTEM PURSUANT TO R.C. 6119.04(AA) AND R.C. 6117.51

{¶24} In her second assignment of error, Geiger argues her home is not

accessible to the District’s sewer system. Geiger contends that since the only

definition of accessibility in the Revised Code is located in R.C. 6117.51, that

definition of accessibility applies in the present case. Geiger argues that according

to R.C. 6117.51, a home more than 200 feet from a sewer main is inaccessible to

the sewer project. Geiger contends that her home is more than 700 feet from the

sewer main, so her home is inaccessible to the District’s sewer project.

{¶25} We review issues of statutory interpretation de novo. Holmes v.

Crawford Machine, Inc., 3d Dist. Nos. 3-11-09, 3-11-10, 3-11-12, 2011-Ohio-

5741, ¶ 54. R.C. 6119.06(AA) grants a regional water and sewer district the

power to require property owners to connect to a water or sewer project and to

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determine which homes are accessible, and thus required to connect. R.C.

6119.06(AA) explicitly states that a regional water and sewer district may:

Require the owner of any premises located within the district to

connect the owner’s premises to a water resource project determined

to be accessible to such premises and found to require such

connection so as to prevent or abate pollution or protect the health

and property of persons in the district. Such connection shall be

made in accordance with procedures established by the board of

trustees of such district and pursuant to such orders as the board may

find necessary to ensure and enforce compliance with such

procedures.

{¶26} Geiger argues that since Chapter 6119 of the Revised Code does not

define the meaning of “accessible” for purposes of this provision, this Court

should apply the 200 foot rule contained in R.C. 6117.51. R.C. 6117.51 permits a

board of county commissioners to order property owners to connect to a public

sewer system after the board of health has passed the required resolution. R.C.

6117.51(C) provides an exception to the connection requirement for “[a]ny

premises that are not served by a common sewage collection system when the

foundation wall of the structure from which sewage or other waste originates is

more than two hundred feet from the nearest boundary of the right-of-way within

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which the sewer is located.” Thus, R.C. 6117.51(C) does not require property

owners whose buildings are more than 200 feet from the sewer main to connect to

the public sewer system.

{¶27} We disagree with Geiger’s contention that Chapter 6117 of the

Revised Code is applicable in the present case. Chapter 6117 of the Revised Code

applies to county sewers; whereas, Chapter 6119 of the Revised Code applies to

regional water and sewer districts. State v. Maurer Mobile Home Court, Inc., 6th

Dist. No. WD-06-053,

. Thus, R.C. 6117.51 only applies to

county commissioners and county boards of health. Meeker v. Akron Health

Dept., 9th Dist. No. 24539,

, ¶ 18. The District “is a water and

sewer district established under R.C. Chapter 6119.” (Def. Ex. N). Consequently,

the provisions of the Revised Code pertaining to regional water and sewer

districts, found in R.C. Chapter 6119, govern the instant case.

{¶28} R.C. 6119.06(AA) specifically provides that a regional water and

sewer district’s board of trustees will establish the procedures to determine which

properties are accessible to the public sewer system and grants the district’s board

of trustees the power to require those property owners to connect to the sewer. On

May 30, 2002, the Board adopted the “Ayersville Water and Sewer District

Sanitary Sewer Use Regulations” in accordance with R.C. 6119.06(AA).

-15- Case Nos. 4-11-19 and 4-11-20

(Ayersville Water and Sewer District Regulations, Pl. Ex. 30). Under a provision

titled “Connections Required” the Board states:

The owner of all houses, buildings, or properties used for human

occupancy, employment, recreation, or other purpose, situated

within the District and abutting on any street, alley, right-of-way, or

sewer easement in which there is now located or may in the future be

located a public sanitary sewer of the District is hereby required to

connect such building directly with the proper public sewer in

accordance with present District regulations.

On March 4, 2004, the District approved Phase B of the public sewer project.

(Phase B Location Map, Def. Ex. KK). The Phase B location map indicated the

main sewer line would run down State Route 66. (Id.). At that time, Geiger’s

property bordered that section of State Route 66. (Def. Ex. Q). Geiger’s property

thus bordered a street where there “may in the future be located a public sanitary

sewer.” (Def. Ex. KK); (Def. Ex. Q). Furthermore, on April 23, 2004, Geiger

signed an easement granting the District “the right to erect, construct, install, and

lay, and thereafter use, operate, inspect, repair, maintain, replace, and remove a

wastewater treatment grinder pump, a control box to be placed on the existing

structure, buried wires connecting the pump and the control box to the existing

structure’s electric meter an [sic] appurtenances.” (Def. Ex. D). As a result,

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Geiger’s property included an easement where there “may in the future be located

a public sanitary sewer.” According to the Board’s 2002 regulation, Geiger would

be required to connect to the sewer because her property bordered a street and

included an easement where the District may place a sewer main. (Pl. Ex. 30).

The Board’s regulations do not prevent homes from being accessible based on

their distance from the sewer main. (Id.). Consequently, Geiger’s argument that

her home is inaccessible because it is more than 200 feet from the sewer main

lacks merit. We conclude that Geiger’s property is accessible to the District’s

public sewer system.

{¶29} Geiger’s second assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT A VALID EASEMENT EXISTED FOR THE PRIVATE LATERAL CONNECTION FROM STATE ROUTE 66 TO MARY’S HOME

{¶30} In her fourth assignment of error, Geiger argues the easement is

invalid because it did not include a metes and bounds description of its location.

Geiger contends that the easement is ambiguous regarding its placement, so parol

evidence is admissible to determine the parties’ intent. Geiger further argues that

since the District drafted the easement, any ambiguities should be decided in her

favor. Geiger contends that construing the ambiguous portions of the easement

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against the District results in the conclusion that the only valid easement would be

from her house to Watson Road, not to State Route 66.

{¶31} Whether the easement’s language was sufficiently definite to

establish its location is a question of law that is reviewed de novo upon appeal.

Amsbary v. Little, 4th Dist. No. 90 CA 16, *2 (Mar. 11, 1991). Whether there was

sufficient evidence for the trial court to determine the location was consistent with

the District’s placement of the easement to State Route 66 is reviewed to

determine whether the trial court’s judgment was against the manifest weight of

the evidence.

{¶32} In determining whether a judgment is against the manifest weight of

the evidence, we cannot substitute our judgment for that of the trier of fact. The

trier of fact is in a better position to observe the demeanor of the witnesses,

examine the evidence, and weigh the credibility of the testimony and evidence.

Seasons Coal Co. v. Cleveland,

(1984). Instead, we must

determine whether the trier of fact’s verdict is supported by some competent,

credible evidence going to all the essential elements of the case. Id.; C.E. Morris

Co. v. Foley Constr. Co.,

(1978).

{¶33} The extent and limitations of an easement created by an express grant

depend upon the language of the grant. Hiener v. Kelley, II, 4th Dist. No. 98CA7,

*11 (July 23, 1999), citing Columbia Gas Transm. Corp. v. Bennett, 71 Ohio

-18- Case Nos. 4-11-19 and 4-11-20

App.3d 307, 318 (2nd Dist. 1990). “The failure to describe an easement by metes

and bounds does not render the conveying instrument invalid.” H & S Co. Ltd. v.

Aurora, 11th Dist. No. 2003-P-0104,

, citing Roebuck v.

Columbia Gas Transp. Corp.,

(2nd Dist. 1977). If

the exact location of the easement is undefined, the servient estate has the initial

right to determine the easement’s location. Carman v. Entner, 2nd Dist. No.

13978, *10 (Feb. 2, 1994). However, the servient estate’s right to determine the

easement’s location is limited by the easement’s purpose and must be exercised

“with due regard to the suitability and convenience of the way so located to the

rights and interests of the owner of the easement.”

Similarly, the owner of the

servient estate has the right to use the land, but in a manner that is consistent with

the easement. Rueckel v. Texas Eastern Transmission Corp.,

(5th Dist. 1981). The owner of the dominant estate may not increase the

burden on the servient estate or enlarge his right over the estate. Hiener at *11.

“However, changes in the use of an easement are permitted to the extent that they

result from the normal growth and development of the dominant land, and are,

therefore, a proper and reasonable use of the easement.”

citing Erie Railroad

Co. v. S.H. Kleinman Realty Co.,

(1915).

{¶34} The easement at issue states that Geiger conveyed to the District “a

perpetual easement with the right to erect, construct, install, and lay, and thereafter

-19- Case Nos. 4-11-19 and 4-11-20

use, operate, inspect, repair, maintain, replace, and remove a wastewater treatment

grinder pump, a control box to be placed on the existing structure, buried wires

connecting the pump and the control box to the existing structure’s electric meter

an [sic] appurtenances.” (Def. Ex. D). The easement further states that it “shall be

a blanket: said land being described more particularly in Exhibit “A” attached

hereto; however, the intent is for the easement to be 20.00 feet in even width

centered on the sewer line, grinder pump, electrical lines, monitor lines, and

appurtenances to be constructed, subject to existing easements, restrictions, and

road right-of-way of record.” (Id.). The easement does not contain a metes and

bounds description of its location, but that does not automatically render it invalid.

H & S Co. at ¶ 16. The easement clearly describes its size and scope, establishing

that it will be 20 feet wide centered on the sewer line, and the purpose is for

sewerage on the property. (Def. Ex. D). We conclude that the easement is not

invalid due to ambiguity, but does leave open the question of its exact placement.

{¶35} Since the easement’s placement is undefined, Geiger, as the owner of

the servient estate, had the initial right to determine its location. Carman at *10.

Geiger testified that she signed the easement with the understanding that it would

be placed from her home to Watson Road. (Trial Tr. at 159). Butler testified that

he told Geiger the easement would be placed from her home to State Route 66.

(Butler Depo. at 23-24). Butler’s testimony and the Phase B plans demonstrate

-20- Case Nos. 4-11-19 and 4-11-20

that when Geiger signed the easement, the sewer main was intended to run down

State Route 66 and not Watson Road. (Id.); (Def. Ex. KK). Butler’s testimony

and the Phase B plans thus provide competent, credible evidence that the easement

should be placed from Geiger’s home to State Route 66. Furthermore, placing the

easement from Geiger’s home to Watson Road as Geiger requests would frustrate

the purpose of the easement because the sewer main does not run down Watson

Road and was not intended to do so. (Def. Ex. KK). We also cannot find that the

District inappropriately enlarged the scope of the easement by installing sewer

lines rather than simply a grinder pump. The easement’s language and both

parties’ understanding was that the easement’s purpose was to provide sewerage to

Geiger’s home. (Id.); (Butler Depo. at 12-14); (Trial Tr. at 152-154).

Consequently, installing a sewer line was a proper use of the easement. Hiener,

4th Dist. No. 98CA7, at *11. We cannot find that the easement is invalid due to

ambiguity, or that the trial court’s determination that the easement was

appropriately placed between Geiger’s home and State Route 66 is against the

manifest weight of the evidence.

{¶36} Geiger’s fourth assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. 5

THE TRIAL COURT ERRED AS A MATTER OF LAW AND UNDER THE MANIFEST WEIGHT OF THE EVIDENCE IN NOT FINDING THAT MARY GEIGER WAS INDUCED TO

-21- Case Nos. 4-11-19 and 4-11-20

SIGN THE EASEMENT DATED APRIL 23, 2004, THROUGH FRAUD AND/OR MISREPRESENTATION

ASSIGNMENT OF ERROR NO. 6

THE TRIAL COURT ERRED FINDING THAT THE EASEMENT SIGNED WAS VALID AND CONFORMED WITH THE REQUIREMENTS OF R.C. 5301.01 WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

ASSIGNMENT OF ERROR NO. 12

THE TRIAL COURT ERRED FINDING THAT THE EASEMENT WAS VALID BECAUSE THERE WAS “A MEETING OF THE MINDS” AS TO A BLANKET EASEMENT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

{¶37} In assignments of error five, six, and twelve, Geiger argues the trial

court erred as a matter of law and under the manifest weight of the evidence in

determining that the District obtained a valid easement. In her fifth assignment of

error, Geiger contends Butler made a material misrepresentation regarding the

easement’s placement and fraudulently induced her to sign the easement. In her

sixth assignment of error, Geiger argues the District failed to correctly notarize the

easement; therefore, the instrument is invalid. In her twelfth assignment of error,

Geiger contends there was no meeting of the minds regarding the meaning of a

blanket easement, so the trial court’s determination that there was a meeting of the

minds was against the manifest weight of the evidence.

-22- Case Nos. 4-11-19 and 4-11-20

{¶38} Geiger first argues the District fraudulently induced her to sign the

easement by making a material misrepresentation that the District would connect

her house to a sewer main running down Watson Road rather than State Route 66.

A claim of fraud in the inducement arises when the plaintiff proves the defendant

induced the plaintiff to enter into an agreement as a result of fraud or

misrepresentation. ABM Farms, Inc. v. Woods,

(1998).

“In order to prove fraud in the inducement, a plaintiff must prove that the

defendant made a knowing, material misrepresentation with the intent of inducing

the plaintiff's reliance, and that the plaintiff relied upon that misrepresentation to

her detriment.”

citing Beer v. Griffith,

(1980).

{¶39} In the present case, Geiger testified that she and Jennifer met with

Butler regarding an easement for the District in April 2004. (Trial Tr. at 151).

According to Geiger, Butler showed her a general layout of the sewer line for the

District, an easement, and a description of her property. (Id. at 152). Geiger

testified that Butler told her the sewer line “would be going down the hill to

Watson Road” and that they did not discuss running the sewer line to State Route

66 because “he said it would not be going out there.” (Id. at 153). In regards to

signing the easement, Geiger further testified that “I told him I was very

uncomfortable signing it and didn’t know if I was doing the right thing, and he

told me that, he reassured me that there would be one grinder pump, both

-23- Case Nos. 4-11-19 and 4-11-20

buildings would be hooked up to and it would run to, run to Watson Road and that

after he reassured me that’s what it would be, then I signed the easement.” (Id. at

159).

{¶40} Jennifer testified that she attended the meeting with her mother and

Butler regarding the easement. (Id. at 226). According to Jennifer, there was an

agreement to place the easement from the house to Watson Road and there was no

discussion or agreement regarding placing the easement from the house to State

Route 66. (Id. at 227). Jennifer further testified that, “just before my mom signed

it, she asked him and made sure that they were agreed upon where it would go,

where the two come together.” (Id. at 229).

{¶41} Butler, a Poggemeyer Design employee whose responsibilities

included obtaining the easements for the District, testified that the District began

Phase A of the sewerage project in 1999. (Butler Depo. at 8-10). According to

Butler, by 2004, the plans had changed and the project was Phase B. (Id. at 10-

11). Butler testified that in 2004, he met with Geiger and her daughter, Jennifer, at

Geiger’s home. (Id. at 11-12). Butler testified that at the meeting, they discussed

the Phase B project and the District’s need for an easement. (Id. at 12). Butler

further testified that he had a set of the Phase B blueprints, the easement, and a

copy of part of Geiger’s deed with him at the meeting. (Id. at 14). Butler testified

that the plans he had with him at the meeting indicated that Geiger’s property

-24- Case Nos. 4-11-19 and 4-11-20

would connect to Route 66 and not Watson Road. (Id. at 23). In regards to

Watson Road, Butler testified that they discussed “[t]hat it was possible, but the

Ayersville Water and Sewer Board would need to okay an extension because the

proposed line, the force main on Watson, did not go to the property line of Mary

Geiger.” (Id. at 24). Butler testified that Geiger did inquire about connecting to

Watson Road during their meeting, but that he did not tell her she would be able to

connect to Watson Road. (Id. at 30-31).

{¶42} The trial court determined Geiger failed to prove her fraud claim,

stating, it was “not persuaded that Butler made any promises that Mary would

connect via Watson Road.” (Case No. 10 CV 40901, Doc. No. 12). We find that

there is some competent, credible evidence supporting the trial court’s ruling.

Contrary to Geiger’s claim, Butler testified that he did not tell Geiger she would

be able to connect to the sewer line on Watson Road, only that she may be able to

connect to Watson Road subject to the Board’s approval. (Butler. Depo. at 23-24).

Furthermore, at the time Butler met with Geiger in 2004, the Phase B plans

indicated the sewer line would run past her property on State Route 66, not

Watson Road. (Def. Ex. KK). Since there is some competent, credible evidence

supporting the trial court’s finding that Butler did not make a material

misrepresentation to Geiger, the trial court’s finding is not against the manifest

weight of the evidence.

-25- Case Nos. 4-11-19 and 4-11-20

{¶43} In her sixth assignment of error, Geiger argues that she signed the

easement during her meeting with Butler but the easement was not notarized.

Geiger contends Butler took the easement to the District’s office where Patricia

Seibenick (“Seibenick”), the District’s clerk, invalidly notarized the easement

without Geiger’s acknowledgement of her signature.

{¶44} R.C. 5301.01(A) states that the grantor’s signature “shall be

acknowledged by the grantor, mortgagor, vendor, or lessor, or by the trustee,

before a judge or clerk of a court of record in this state, or a county auditor, county

engineer, notary public, or mayor, who shall certify the acknowledgement and

subscribe the official’s name to the certificate of the acknowledgement.” An

express easement must comply with these formal requirements to be valid.

Kamenar R.R. Salvage, Inc. v. Ohio Edison Co.,

(3d

Dist. 1992), citing Hout v. Hout,

(1870).

{¶45} At trial, Geiger testified that she signed the easement during her

meeting with Butler and then gave the easement back to Butler. (Trial Tr. at 156,

195). Geiger testified that she clocked out of work at 3:42 p.m. on April 23, 2004,

the date the easement was notarized. (Id. at 149). Geiger testified that she did not

go to the District’s office or meet with Seibenick on that date. (Id. at 150). Geiger

did admit that it would be possible to drive from her place of employment to the

District’s office within 45 minutes, which would have permitted her to leave at the

-26- Case Nos. 4-11-19 and 4-11-20

end of her work day and arrive before the District’s office closed. (Id. at 193-

194). Geiger testified that she did not have a copy of the easement she signed in

2004. (Id. at 194). Jennifer also testified that Geiger signed the easement during

her meeting with Butler. (Id. at 228).

{¶46} Butler testified that he did not recall Geiger signing the easement

during their meeting. (Butler Depo. at 42). Butler further testified that he did not

take the easement with Geiger’s signature to Seibenick to have her notarize it

without Geiger present. (Id. at 42). According to Butler, his normal procedure for

obtaining the easement was to leave two copies with the person after the meeting,

one for the person granting the easement and one to take to an attorney to review.

(Id. at 43). Butler testified that he told Geiger that after she made a decision

regarding sewer service to the barn, she could take the easement to Seibenick or

call him because he was a notary. (Id.). Butler also testified that there was no

reason for him to take the easement to Seibenick to have her notarize it as Geiger

alleged because he could have notarized the easement himself. (Id. at 51).

{¶47} Seibenick testified that Geiger’s easement was notarized on April 23,

2004. (Trial Tr. at 37). Seibenick testified that she did not specifically remember

Geiger coming into the office to notarize the easement, but Seibenick did not go to

Geiger’s house or meet her somewhere else to notarize it. (Id. at 37). On the date

Geiger’s easement was notarized, Seibenick’s timecard showed she was in the

-27- Case Nos. 4-11-19 and 4-11-20

office from 7:57 a.m. until she left for the day at 4:30 p.m. with a half hour break

for lunch. (Id. at 42). Seibenick’s activity log for the day indicated she had spent

approximately four hours doing work related to easements. (Id. at 43). In her

ledger for April 23, 2004, Seibenick had written down Geiger’s telephone number

and work number, and she had made a note for the District to check and call

Geiger back regarding the placement of the grinder pump. (Id. at 48). Seibenick’s

ledger also had Geiger’s name, address, and an entry showing Geiger had been

paid a dollar. (Id. at 58). Seibenick testified that Geiger would have been given a

dollar by Butler when he took the easement to her, or if she brought the easement

in to be notarized by Seibenick. (Id.). Based on the ledger, Seibenick testified

that the District had paid Geiger a dollar. (Id.). Seibenick testified that her

signature and notary stamp was on the easement, although she did not specifically

recall notarizing Geiger’s easement. (Id. at 59-60). Seibenick testified that she

only notarized the easements when the person either signed it in front of her or

acknowledged that the person’s signature was on the easement in front of her. (Id.

at 60). Seibenick testified that her signature on the easement “indicates that she

was there and/or I would have asked her is this your signature. If it had been

signed previously, I still would have asked her if that was her signature and then

signed it as a notary.” (Id. at 61).

-28- Case Nos. 4-11-19 and 4-11-20

{¶48} The trial court found that the easement was properly notarized by

Seibenick. (Case No. 10 CV 40901, Doc. No. 12). We find competent, credible

evidence supporting the trial court’s ruling. The date on the easement indicates

that it was notarized on April 23, 2004. (Def. Ex. D). Butler testified that

contrary to Geiger’s allegation, he left the easement with Geiger and did not take it

with him for Seibenick to notarize. (Butler Depo. at 42). Seibenick testified that

the entries in her ledger indicated Geiger came to the office and received a dollar

from Butler or Seibenick. (Trial Tr. at 58). Seibenick also testified that although

she did not specifically remember notarizing Geiger’s easement because the

District obtained over 200 total easements, she would not have notarized the

easement unless Geiger signed the instrument in front of her or acknowledged her

signature. (Id. at 61). Consequently, the trial court’s finding that the easement

was validly notarized is not against the manifest weight of the evidence.

{¶49} In her twelfth assignment of error, Geiger argues the trial court’s

finding that there was a meeting of the minds regarding the blanket easement is

against the manifest weigh of the evidence. “A meeting of the minds as to the

essential terms of the contract is a requirement to enforcing the contract.”

Kostelnik v. Helper,

,

, citing Episcopal

Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations,

(1991). The trial court determined that there was a meeting of the minds regarding

-29- Case Nos. 4-11-19 and 4-11-20

the purpose of the easement and that the easement’s language is plain and does not

require collateral evidence for interpretation. We find competent, credible

evidence supporting the trial court’s judgment.

{¶50} Geiger testified that Butler explained the easement to her and that

they discussed where the District would place the grinder pump. (Id. at 153).

Geiger testified that “[h]e told me the blanket easement meant that they could go

anywhere ten to twenty feet on either side of the line when they put it in, that it

would be going to Watson Road. He did not tell me it could go anywhere on your

property.” (Id. at 157). Geiger testified that the word “blanket” was on the

easement when she signed it. (Id. at 192). Geiger testified that she misunderstood

the meaning of the word “blanket.” (Id. at 218).

{¶51} Butler testified that the easements were “for right-of-way to place

sewer force mains, sewer main lines, and for grinder pumps to be placed on

private property and the electric lines and such to go to the homes.” (Butler Depo.

at 10). Butler testified that at the appointment with Geiger, they discussed the

project and the need for an easement. (Id. at 12). Butler testified that Geiger’s

easement “was for placement of a grinder pump and forced main from that grinder

pump to the main line.” (Id. at 13). Butler testified that the plans he had with him

at the meeting showed that Geiger’s home would connect to the sewer line on

Route 66. (Id. at 23). Butler testified that he told her that any connection to

-30- Case Nos. 4-11-19 and 4-11-20

Watson Road would have to be approved by the Board and did not indicate that

she would be able to connect to Watson Road. (Id. at 30-31).

{¶52} The easement Geiger signed states, “[t]he easement shall be a

blanket: said land being described more particularly in Exhibit “A” attached

hereto; however, the intent is for the easement to be 20.00 feet in even width

centered on the sewer line, grinder pump, electrical lines, and appurtenances to be

constructed, subject to existing easements, restrictions, and road right-of-way of

record.” (Def. Ex. D). Exhibit “A” is a legal description of Geiger’s property.

(Id.).

{¶53} The easement clearly states that it is a “blanket” for the purpose of

installing the sewer line and makes no reference to connecting the sewer line to

Watson Road. (Def. Ex. D). According to the testimony, the term “blanket” was

on the easement when Geiger signed it, Butler informed Geiger of the easement’s

purpose, and Butler showed Geiger plans indicating the easement would connect

her home to the sewer main on State Route 66. (Trial Tr. at 192); (Butler Depo. at

10, 23). The discussion between Geiger and Butler regarding the possibility of

connecting her home to a sewer main on Watson Road should the Board approve

Geiger’s request further establishes that Geiger understood the District could use

the easement to alter the precise location of the sewer line based on changes to the

project plans. (Butler Depo. at 30-31). Consequently, we cannot find that the

-31- Case Nos. 4-11-19 and 4-11-20

trial court’s judgment that there was a meeting of the minds concerning the

blanket easement is against the manifest weight of the evidence.

{¶54} Geiger’s fifth, sixth, and twelfth assignments of error are, therefore,

overruled.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT FINDING THAT THE DISTRICT LACKED AUTHORITY UNDER R.C. CHAPTER 6119 TO ENTER PRIVATE PROPERTY TO INSTALL EQUIPMENT FOR PRIVATE LATERAL SEWER CONNECTIONS

ASSIGNMENT OF ERROR NO. 8

THE TRIAL COURT ERRED AS A MATTER OF LAW AND UNDER THE MANIFEST WEIGHT OF THE EVIDENCE BY NOT FINDING THAT THE DISTRICT HAD TRESPASSED ONTO THE GEIGERS’ PROPERTIES

{¶55} In her third and eighth assignments of error, Geiger argues the

District lacked the authority to enter her property and install the sewer equipment

and that the District trespassed by entering her land to install the sewer line. In her

third assignment of error, Geiger contends the District can require private lateral

connections once accessibility has been determined, but cannot unilaterally force

the connection. In her eighth assignment of error, Geiger argues the District did

not have a valid easement or permission to enter her property, so the District

trespassed on her property when it installed the sewer line and grinder pump.

-32- Case Nos. 4-11-19 and 4-11-20

{¶56} We review a claim of common law trespass to determine whether the

trial court’s judgment was against the manifest weight of the evidence. Horner v.

Whitta, 3d Dist. No. 13-99-64, *2 (July 27, 2000). “‘A common law tort in

trespass upon real property occurs when a person, without authority or privilege,

physically invades or unlawfully enters the private premises of another whereby

damages directly ensue.’” Apel v. Katz,

(1998), quoting

Linley v. DeMoss,

(10th Dist. 1992). This Court has

previously stated that an injured party may seek recourse in the court of common

pleas for the common law claim of trespass when public utilities exceed the scope

of their easements. Cottrell v. Am. Elec. Power, 3d Dist. No. 11-10-06, 2010-

Ohio-5673, ¶ 18.

{¶57} We have already determined the District had a valid easement and

that the installation of the sewer line did not exceed the scope of the easement.

Therefore, we find competent, credible evidence that the District did not trespass

on Geiger’s property when it installed the sewer line in accordance with the scope

and purpose of its easement. We also do not find any merit to Geiger’s argument

that the District unilaterally forced her to connect to the sewer line. Limber, the

District’s manager, testified that the District installed the sewer line and grinder

pump near Geiger’s house. (Trial Tr. at 83-86). Limber testified that another pipe

would then need to be connected from the grinder pump to Geiger’s home. (Id. at

-33- Case Nos. 4-11-19 and 4-11-20

272-273). According to Limber, the District ran the sewer line to within 30 feet of

Geiger’s house, so Geiger will need to run a 30 foot line to connect. (Id. at 281-

283). Geiger has not presented any evidence that, at the time of this appeal, the

District had run a 30 foot line connecting her home to the grinder pump.

Consequently, the evidence presented to the trial court establishes that Geiger was

not connected to the grinder pump and sewer line at the time of this appeal,

contrary to her claim.

{¶58} Geiger’s third and eighth assignments of error are, therefore,

overruled.

ASSIGNMENT OF ERROR NO. 7

THE TRIAL COURT ERRED AS A MATTER OF LAW BY NOT FINDING THAT AYERSVILLE WATER AND SEWER DISTRICT’S RULES AND REGULATIONS REGARDING ACCESSIBILITY VIOLATE THE DUE PROCESS CLAUSE

{¶59} In her seventh assignment of error, Geiger argues the District’s 2010

accessibility regulation is unconstitutional. Geiger contends the regulation fails to

provide a criteria, basis, or guideline for accessibility, leaving the determination of

which properties are accessible to the District manager’s discretion. Geiger argues

that, as a result, the District’s regulation violates the Due Process Clause.

{¶60} The District passed the Ayersville Water and Sewer District Sanitary

Sewer Use Regulations on May 30, 2002. (Pl. Ex. 30). The District adopted the

regulation at issue on July 6, 2010, two weeks before it installed Geiger’s sewer

-34- Case Nos. 4-11-19 and 4-11-20

line. (Pl. Ex. 29); (Trial Tr. at 86). As previously discussed, Geiger had signed

the easement in 2004, made payments to the District for the cost of the sewerage

project, and attended a hearing regarding whether she was required to have two

grinder pumps prior to the District’s adoption of the 2010 regulations. (Trial Tr. at

163, 259-261); (Pl. Ex. 29). This evidence demonstrates that the District had

determined Geiger was accessible to the sewer line and intended to connect her

prior to the 2010 regulations. Furthermore, Geiger has not presented any

additional evidence indicating the District applied the new regulation to her case.

Since we conclude the District did not apply the 2010 regulation in the present

case, we need not address whether the regulation is unconstitutional.

{¶61} Geiger’s seventh assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. 13

THE TRIAL COURT ERRED AS A MATTER OF LAW FINDING THAT PUBLIC PURPOSE EXISTED FOR THE PROPERTY REQUIREMENT FOR AN APPROPRIATION

{¶62} In her thirteenth assignment of error, Geiger argues the trial court

erred by finding the District had a public purpose sufficient to appropriate her

property for the second easement. Geiger contends that the sewer line and grinder

pump would only benefit her, as opposed to the public. Geiger also argues that

her sewage treatment system functions correctly and is discharged outside of the

-35- Case Nos. 4-11-19 and 4-11-20

District, so the appropriation of Geiger’s property for the public sewer system

does not serve a public purpose for those within the District.

{¶63} Our review of the trial court’s decision regarding whether the District

has the right to appropriate Geiger’s property is limited to an abuse of discretion.

Media One v. Manor Park Apartments Ltd., 11th Dist. Nos. 2000-L-045, 99-L-

117, 2000-L-046, 99-L-116, *3 (Oct. 13, 2000), citing Hover v. City of Warren,

11th Dist. No. 97-T-0012 (Dec. 31, 1997). An abuse of discretion suggests the

trial court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore,

(1983).

{¶64} R.C. 163.08 states, “[a] resolution or ordinance of the governing or

controlling body, council, or board of the agency declaring the necessity for the

appropriation shall be prima-facie evidence of such necessity in the absence of

proof showing an abuse of discretion by the agency in determining such

necessity.” R.C. 163.09(B)(1)(b) further provides, “[t]he presentation by a public

utility or common carrier of evidence of the necessity for the appropriation creates

a rebuttable presumption of the necessity for the appropriation.” Furthermore,

courts have historically permitted the appropriation of public property for the

purposes of expanding and developing “utilities, railroads, and mines.” Norwood

v. Horney,

,

, ¶ 48. Courts have affirmed the

-36- Case Nos. 4-11-19 and 4-11-20

use of appropriation in these contexts under the theory that they provide a larger,

general public benefit.

{¶65} In the present case, the OEPA issued its Director’s Final Findings

and Orders where it found that the District “is a water and sewer district

established under R.C. Chapter 6119 to provide for the collection, treatment and

disposal of sewage within unincorporated areas of Highland, Richland, and

Defiance Townships, Defiance County, Ohio.” (Def. Ex. N). The OEPA also

found that many of the homes in the District “are served by inadequate or failing

on-site or aeration sewage disposal systems that discharge raw or partially treated

sewage.” (Id.). The OEPA required the District to submit and implement a plan

for sewerage improvements. (Id.). The OEPA also ordered the District to exercise

its statutory authority “to compel all premises in the unincorporated communities,

and in all areas currently or in the future served by public sanitary sewers, to

connect sewage flows to the public sanitary sewer and cease use of existing

sewage disposal systems.” (Id.). The Board subsequently passed a resolution

where it found that it was necessary to appropriate an easement on Geiger’s

property to complete the required public sewer project and abate the public health

nuisance. (Def. Ex. NN).

{¶66} The District thus presented evidence that the OEPA found pollution

resulting from inadequate sewage systems and required the District to implement a

-37- Case Nos. 4-11-19 and 4-11-20

public sewer system in Defiance Township. The District also demonstrated that it

passed a resolution where it found it necessary to appropriate an easement on

Geiger’s property. This Court has previously concluded that a trial court did not

abuse its discretion by approving a public entity’s appropriation of property to

install a public sewer system pursuant to OEPA orders. Cairo Village Council v.

Miller,

(3d Dist. 1997). Consequently, we cannot

conclude that the trial court abused its discretion by permitting the District to

appropriate Geiger’s property in the present case.

{¶67} Geiger’s thirteenth assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. 14

THE COMPLAINT FOR APPROPRIATION DID NOT CONTAIN A CORRECT LEGAL DESCRIPTION OF THE PROPERTY TO BE TAKEN

ASSIGNMENT OF ERROR NO. 15

THE TRIAL COURT ERRED AS A MATTER OF LAW BY NOT DISMISSING THE CASE AS ALL REQUIREMENTS OF R.C. 163.041 HAD NOT BEEN ADHERED TO PRIOR TO THE FILING OF THE APPROPRIATION

{¶68} In her fourteenth and fifteenth assignments of error, Geiger argues

the trial court committed reversible procedural errors. Geiger first contends that

the District failed to provide the proper legal description of Geiger’s land in its

complaint for appropriation in violation of R.C. 163.05. Secondly, Geiger argues

the District did not meet the requirements of R.C. 163.04 and 163.041 because it

-38- Case Nos. 4-11-19 and 4-11-20

omitted a required paragraph from its notice of intent to acquire, informing Geiger

of her right to appeal the District’s decision.

{¶69} R.C. 163.05 provides the requirements an agency must meet to

commence an appropriation action. R.C. 163.05(A) requires the petition for

appropriation to contain “[a] description of each parcel of land or interest or right

therein sought to be appropriated, such as will permit ready identification of the

land involved.” Prior to initiating this action, R.C. 163.041 requires the agency to

provide the property owner with notice of its intent to acquire the property. This

notice must inform the property owner that he or she has the right to appeal the

agency’s decision to acquire the property and that the property owner “may object

to this project's public purpose, necessity, designation of blight (if applicable), or

valuation by writing, within ten business days of receiving this notice.” R.C.

163.041.

{¶70} In the present case, on November 23, 2010, the District provided

Geiger with notice of its intent to acquire an easement on her property. (Def. Ex.

OO). However, the letter did not include the required paragraph informing Geiger

of her right to appeal the District’s decision to acquire an easement on her

property. (Id.). The District subsequently filed a complaint for appropriation of

Geiger’s property on January 18, 2011. (Case No. 11 CV 41121, Doc. No. 44).

The description of the proposed easement was similar to the easement Geiger had

-39- Case Nos. 4-11-19 and 4-11-20

already signed, stating that the easement would give the District “the right to erect,

construct, install, and lay, and thereafter use, operate, inspect, repair, maintain,

replace, and remove One wastewater treatment grinder pump, a control box, to be

placed on the existing structure, buried wires connecting the control box to the

existing structure’s electric meter, sewer line and appurtenances.” (Id.). The

document also stated, “[t]he easement shall be a blanket * * * however, the intent

is for the easement to be 20.00 feet in even width centered on the sewer line,

grinder pump, electrical line(s), monitor line(s), and appurtenances.” (Id.). The

complaint included an inaccurate legal description of Geiger’s property after her

conveyance of a portion of the property to Jennifer. (Id.). Geiger argues that these

procedural errors warrant a reversal of the appropriation action. We disagree.

{¶71} R.C. 163.12 governs defects in appropriation proceedings.

According to R.C. 163.12(C), “[t]he court may amend any defect or informality in

proceedings under sections 163.01 to 163.22 of the Revised Code. The court may

cause new parties to be added and direct further notice to be given to a party in

interest as the court considers proper.” Thus, R.C. 163.12(C) permits parties to

amend a petition for appropriation in accordance with Civ.R. 15. Wray v.

Tattersall, 6th Dist. No. L-98-1030, *5 (Sept. 18, 1998). “The language of Civ.R.

15(A) favors a liberal policy when the trial judge is confronted with a motion to

amend a pleading.”

citing Wilmington Steel Products, Inc. v. Cleveland Elec.

-40- Case Nos. 4-11-19 and 4-11-20

Illum. Co,

(1991). Appellate courts review a trial court’s

decision to permit parties to amend defects in the proceedings for an abuse of

discretion. Wray at *5.

{¶72} On March 25, 2011, the trial court permitted the District to file a

supplemental notice of its intent to appropriate an easement on Geiger’s property.

(Case No. 11 CV 41121, Doc. No. 33). The supplemental notice informed Geiger

of her right to appeal the District’s decision. (Id.). On June 1, 2011, the trial court

also permitted the District to file an amended complaint. (Case No. 11 CV 41121,

Doc No. 25). The amended complaint included a revised legal description of

Geiger’s property. (Id.).

{¶73} We cannot find that the trial court abused its discretion by permitting

the District to amend its notice of intent to appropriate and complaint for

appropriation. R.C. 163.12 permits the trial court to amend any defects in the

appropriation proceedings and Geiger has not offered any evidence demonstrating

that she suffered prejudice as a result. In fact, Geiger testified at trial that she was

aware that the District was seeking an easement to connect the barn to the public

sewer system. (Trial Tr. at 186). The notice of intent to appropriate and

complaint for appropriation were thus sufficient to put Geiger on notice of the

District’s intent to appropriate an easement to the barn.

-41- Case Nos. 4-11-19 and 4-11-20

{¶74} Geiger’s fourteenth and fifteen assignments of error are, therefore,

overruled.

ASSIGNMENT OF ERROR NO. 9

THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT THE STATUTE OF LIMITATIONS HAD EXPIRED ON ANY FRAUD CLAIM

ASSIGNMENT OF ERROR NO. 10

THE TRIAL COURT ERRED AS A MATTER OF LAW FINDING THAT THE DISTRICT’S IMMUNITY TO FRAUD PURSUANT TO R.C. CHAPTER 2744 PRECLUDED ANY RECOVERY BY THE GEIGERS

ASSIGNMENT OF ERROR NO. 11

THE TRIAL COURT ERRED AS A MATTER OF LAW FINDING THAT THE DISTRICT’S IMMUNITY TO TRESPASS PURSUANT TO R.C. CHAPTER 2744 PRECLUDED ANY RECOVERY BY THE GEIGERS

{¶75} In her ninth, tenth, and eleventh assignments of error, Geiger argues

the trial court erred by determining the statute of limitations had run on her fraud

claim and erred by deciding the District had immunity pursuant to R.C. Chapter

2744 that precluded Geiger from recovering on her fraud and trespass claims.

{¶76} We have already determined that the trial court did not err in

determining Geiger failed to prove her fraud and trespass claims. Consequently,

-42- Case Nos. 4-11-19 and 4-11-20

Geiger’s ninth, tenth, and eleventh assignment of error are moot and we decline to

address them. See App.R. 12(c).

{¶77} Geiger’s ninth, tenth, and eleventh assignments of error, are,

therefore, found to be moot.

{¶78} Having found no error prejudicial to the appellants herein in the

particulars assigned and argued, we affirm the judgments of the trial court.

Judgments Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr

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