[Cite as Heron Point Condominium Unit Owner's Assn. v. E.R. Miller, Ltd.,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

HERON POINT CONDOMINIUM UNIT C.A. Nos. 25861 OWNER'S ASSOCIATION 25863 25998 Appellant/Cross-Appellee

v. APPEAL FROM JUDGMENT E.R. MILLER, LTD., et al. ENTERED IN THE COURT OF COMMON PLEAS Appellees/Cross-Appellants COUNTY OF SUMMIT, OHIO CASE No. CV 2009-02-1175

DECISION AND JOURNAL ENTRY

Dated: May 16, 2012

MOORE, Judge.

{¶1} Appellant, Heron Point Condominium Unit Owner’s Association, appeals from

the judgment of the Summit County Court of Common Pleas. This Court affirms.

I.

{¶2} Appellant is the Heron Point Condominium Unit Owner’s Association (“Heron

Point”). Appellees E.R. Miller, Ltd. and Elton Miller were involved in the development of

Heron Point Condominiums in the Village of Lakemore, Ohio. Mr. Miller owns condominium

units within Heron Point, as well as nearby property within the development. Appellees Wendell

Sommers and Erika Jennings own condominium units in Heron Point as well. The

condominiums are located near Springfield Lake. They are separated from the lake by some

wetlands and a “U-shaped” canal. At some point, the canal became full of obstructions,

presumably from a nearby company utilizing it as a “dumping ground” for old tires and scrap 2

rubber. In February 2009, Mr. Miller hired a professional dredger, Ron Grable, to perform

dredging operations on the canal to clear the obstructions. Mr. Miller perceived that if the canal

were opened up and cleared of obstructions, the canal would provide boat access to Springfield

Lake, and the value of the nearby real estate would increase. Initially, Mr. Miller sought to

obtain an easement from the association for such work. However, the dredging commenced in

February 2009 prior to any approval.

{¶3} On February 11, 2009, Heron Point filed a complaint against Appellees alleging

trespass, negligence, conversion and ejectment. A temporary restraining order was granted on

February 11, 2009, enjoining Appellees from trespassing on, damaging, or converting the Heron

Point property. On February 24, 2009, the temporary restraining order was converted to a

preliminary injunction. Appellees filed an action for declaratory judgment against Heron Point

on April 17, 2009 seeking to have the court declare the canal a public waterway. The cases were

consolidated on November 12, 2009, and then assigned to a magistrate for resolution and

disposition.

{¶4} On May 5, 2010 through May 18, 2010, a hearing was held before a magistrate.

On May 24, 2010, the trial court issued a judgment entry of partial dismissal signed by the

magistrate, the trial judge, and counsel for plaintiff and defendants acknowledging that the

parties had settled the claim for trespass. The magistrate issued a decision on August 3, 2010. In

the order, the magistrate acknowledged that damages allegedly caused by the dredging

operations, including the destruction of a small footbridge, had been resolved by a binding

settlement agreement entered into between the parties on the record. Thus, the sole issue

remaining before the court was determination of which party could control use of the canal. The 3

magistrate recommended that the trial court deny Heron Point’s claims for relief, and grant

Appellees’ request for declaratory judgment.

{¶5} On August 17, 2010, Heron Point filed objections to the magistrate’s decision.

On August 20, 2010, Appellees filed a motion for sanctions against Heron Point arguing that

Heron Point lacked a subjective or objective basis for filing its complaint and asserting its

defenses, and requested reimbursement of attorney’s fees and costs. On August 27, 2010,

Appellees also filed objections to the magistrate’s decision arguing that they were entitled to an

award of the costs of the action. Heron Point filed supplemental objections on September 28,

2010.

{¶6} On February 22, 2011, the trial court denied Appellees’ motion for sanctions.

Appellees filed a notice of appeal with this Court. The trial court overruled Heron Point’s

objections to the magistrate’s decision on February 22, 2011, and adopted the decision in its

entirety. On March 23, 2011, Heron Point filed a notice of appeal. This Court consolidated the

appeals and, on May 13, 2011, remanded the matter to the trial court to rule on Appellees’

pending objections. On June 1, 2011, the trial court sustained Appellees’ objections to the

magistrate’s decision dividing costs equally among the parties, and awarded Appellees the costs

of this action because they were the prevailing party. The court once again overruled Heron

Point’s objections to the magistrate’s decision, and adopted the decision in its entirety.

{¶7} Heron Point timely filed a notice of appeal. It was consolidated with the above

pending appeals. Heron Point raises four assignments of error for our review. On cross-appeal,

Appellees raise one assignment of error for our review. 4

II.

ASSIGNMENT OF ERROR I

THE LOWER COURT ERRED IN FINDING THAT APPELLEES[] OWN THE REAL PROPERTY BEARING PERMANENT PARCEL NUMBERS 54-02268 AND 54-02269.

{¶8} In its first assignment of error, Heron Point contends that the trial court erred in

finding that Appellees own the wetlands property adjacent to the canal bearing parcel numbers

54-02268 and 54-02269. The record does not support this argument.

{¶9} Heron Point argued below that the wetlands were a part of common property

owned by the association. On appeal, it reiterates this argument and further argues that

Appellees’ proffered tax bills and alleged interest in the property is irrelevant. However, Heron

Point’s position represents a misconstruction of the trial court’s findings of fact and conclusions

of law.

{¶10} Heron Point initially brought an action for trespass, negligence, conversion and

ejectment. Appellees filed a declaratory judgment action seeking to have the trial court declare

that the canal is a public waterway which may be utilized by members of the public for boating

purposes. At the hearing before the magistrate, the parties indicated that a settlement agreement

was entered into on the claim of trespass brought by Heron Point, and the only issue left for the

court to decide was who controlled the utilization of the waterway after it was cleared of

obstructions. The trial court’s order distinguished between the “U-shaped canal” and the

“wetlands” area, which was the marshy island surrounded by the canal and Springfield Lake.

The wetlands area bears the parcel numbers referenced in this assignment of error, 54-02268 and

54-02269. The trial court acknowledged that Appellees had paid taxes on the wetlands area and

that they “claim[ed] ownership.” However, the trial court concluded that the canal itself was 5

“not privately owned or otherwise subject to control or use by any of the adjoining

landowners[.]” It further stated that “a person or entity cannot have or assert ownership or

control the use of a public waterway, or any of its parts, such as this canal, and thereby bar its

use by the general boating public.” The only issue before the trial court was the determination of

who could control utilization of the canal. It determined that it was not privately owned, and

could not be controlled by any of the parties. There is nothing in the record to indicate that the

trial court concluded that the canal was owned by Appellees. As such, this argument is without

merit.

{¶11} Heron Point’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE LOWER COURT ERRED IN DENYING [HERON POINT’S] CLAIMS FOR A PRELIMINARY AND PERMANENT INJUNCTION, CONVERSION AND EJECTMENT PROHIBITING APPELLEES[] FROM CONTINUED ACCESS AND/OR USE OF THE WATERWAY.

{¶12} In its second assignment of error, Heron Point argues that the trial court erred in

denying its claims for a preliminary and permanent injunction, conversion and ejectment

prohibiting Appellees from continued access or use of the waterway.

{¶13} Initially we note that Heron Point and Appellees entered into a settlement

agreement on the record. The magistrate acknowledged, and the parties did not dispute, that the

only issue before it was who could control utilization of the canal. This matter was heard by the

magistrate and on August 3, 2010, the magistrate issued its report and proposed decision. Heron

Point filed objections on August 17, 2010. However, Heron Point failed to object to certain parts

of the magistrate’s decision which it now attempts to raise in its second assignment of error.

Under Civ.R. 53(D)(3)(b)(iv) 6

[e]xcept for a claim of plain error, a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).

{¶14} Civ. R. 53(D)(3)(b)(ii) requires that objections to the magistrate’s decision “be

specific and state with particularity all grounds for objection.” Here, Heron Point’s objections

only addressed the magistrate’s finding that it was not entitled to a permanent injunction. Thus,

we limit our review to the request for a permanent injunction because it was preserved through

timely objections to the magistrate’s decision.

{¶15} “An injunction is an extraordinary remedy in equity where there is no adequate

remedy available at law. It is not available as a right but may be granted by a court if it is

necessary to prevent a future wrong that the law cannot.” Mt. Eaton Cmty. Church, Inc. v.

Ladrach, 9th Dist. No. 07CA0092,

, quoting Garono v. State,

(1988). The grant or denial of an injunction is within the trial court’s discretion and

will not be disturbed by a reviewing court absent an abuse of that discretion. Ormsby v.

Transcon. Oil & Gas, Inc., 9th Dist. No. 18063,

, *1 (Sept. 17, 1997), citing

Garono,

. In order to find an abuse of that discretion, we must determine

that the trial court’s decision was unreasonable, arbitrary or unconscionable. Blakemore v.

Blakemore,

(1983).

{¶16} On appeal, Heron Point essentially argues that the trial court erred in concluding

that the canal was a public, navigable waterway. Instead, it argues that it is a private, non-

navigable waterway, and thus Heron Point has the right to control the use.

{¶17} Initially, we note that Heron Point contends that Springfield Lake is “likely not a

navigable waterway.” In its proposed findings of fact and conclusions of law, Heron Point 7

argued that Springfield Lake was not a navigable waterway. The eighth finding of fact from the

magistrate’s decision concluded that Springfield Lake is a public body of water and that it is

open to the boating public. The ninth finding of fact concluded that the canal was always a part

of the “usable waterway system known as Springfield Lake.” It also found the canal to “to be a

navigable canal useable for boating purposes.” Finally, the magistrate concluded that that canal

was “a part of the overall Springfield Lake public waterway system which allows for recreation

and use by the general public, just as Springfield Lake itself is so utilized.” The fourteenth

finding of fact concludes that the canal is a part of the Springfield Lake system, and that the lake

is a public waterway. Heron Point confined its objection to the magistrate’s finding that the

canal was always a part of the useable waterway system known as Springfield Lake. It made no

objection to the magistrate’s findings regarding Springfield Lake. It never raised an objection

regarding the magistrate’s decision not to adopt its proposed finding that Springfield Lake was

not a navigable waterway. Civ. R. 53(D)(3)(b)(ii) requires that objections to the magistrate’s

decision “be specific and state with particularity all grounds for objection.” Heron Point failed to

do so, and has accordingly forfeited for appellate review the argument that Springfield Lake is

not a navigable waterway. Young v. Young, 9th Dist. No. 25640,

.

{¶18} Next, Heron Point argues that the canal is non-navigable. It cites to Portage

County Bd. of Comms. v. Akron,

(2006) and Mentor Harbor Yachting Club v.

Mentor Lagoons, Inc.,

, 199 (1959) to support this proposition. Heron Point

confines its arguments to whether or not the canal alone constitutes navigable water. It fails to

acknowledge that the canal is an extension of a public, navigable waterway, Springfield Lake. It

further argues that Appellees dredged the canal beyond its original depth and width. 8

{¶19} The facts from Mentor Harbor are useful in this case. There, a channel similar to

Heron Point’s canal was dredged resulting in a deeper and wider waterway. The Ohio Supreme

Court acknowledged that “[a] natural watercourse does not lose its character as a public

watercourse because a part of its channel has been artificially created. Nor is the channel of a

naturally navigable watercourse made private because of reasonable improvements put upon it.”

Mentor Harbor, 170 Ohio St. at 199. The Ohio Supreme Court concluded that the artificial

extensions of the naturally navigable channel “became a part thereof and are public waters.” Id.

Here, the trial court concluded that the canal was a natural extension of Springfield Lake. It

further concluded that the dredging constituted a reasonable improvement. Heron Point has

failed to argue, let alone demonstrate, that such a conclusion was an abuse of discretion.

{¶20} Furthermore, in the court below, both Heron Point and Appellees presented

evidence to establish whether the canal was historically a navigable body of water. Each party

admitted into evidence testimony about the canal’s existence prior to the impediment of debris.

They also submitted photographs of the canal throughout history. The magistrate reviewed the

evidence and concluded that, in the past, the canal existed as a useable waterway with an

entrance at each end entering onto Springfield Lake. As the trier of fact, the magistrate was best

able to view the evidence and weigh the credibility of the witnesses. Truax v. Regal, 9th Dist.

No. 20902,

, ¶ 26. The trial court could properly adopt the magistrate’s

proposed findings of fact provided that there was competent, credible evidence to support the

decision. Chatman v. Chatman, 9th Dist. No. 24514,

, ¶ 7, quoting State v.

Wilson,

,

, ¶ 40.

{¶21} Finally, Heron Point makes various arguments regarding the riparian rights of an

owner of land adjacent to a watercourse. It acknowledges that public watercourses are subject to 9

an easement of use by the public. See, e.g., Portage Cty. Bd. of Commrs. v. Akron,

,

. Nonetheless, it argues that the portion of the canal that was dredged

by Appellees was located on its private land. We concluded above that Heron Point forfeited for

review the issue of whether Springfield Lake was a navigable waterway. We also concluded that

it was not an abuse of discretion for the trial court to determine that the canal was a natural

extension of that waterway. Heron Point acknowledges that public waterways are subject to an

easement of use by the public. As an extension of Springfield Lake, the public has an easement

of use for the canal. Thus, Heron Point is unable to demonstrate that its ownership of the land

surrounding the canal conferred upon them exclusive control of the public’s use of the canal.

{¶22} Accordingly, Heron Point has failed to demonstrate that the trial court abused its

discretion in failing to grant its permanent injunction. As such, its second assignment of error is

overruled.

ASSIGNMENT OF ERROR III

THE LOWER COURT ERRED IN GRANTING APPELLEES[]’ CLAIM FOR DECLARATORY JUDGMENT.

{¶23} In its third assignment of error, Heron Point argues that the trial court erred in

granting Appellees’ claim for declaratory judgment.

{¶24} However, Heron Point failed to object to this portion of the magistrate’s decision.

As discussed in the second assignment of error, Heron Point was required to “be specific and

state with particularity all grounds for objection.” Civ.R. 53(D)(3)(b)(ii). Here, Heron Point’s

objections did not address the magistrate’s recommendation that the trial court grant Appellees’

request for declaratory judgment. Thus, we are precluded from considering this argument as it

was not preserved through timely objections to the magistrate’s decision.

{¶25} We decline to address Heron Point’s third assignment of error. 10

ASSIGNMENT OF ERROR IV

SINCE THE LOWER COURT ERRED IN GRANTING APPELLEES[]’ CLAIMS, [THEY] ARE NOT ENTITLED TO THE COSTS OF THIS ACTION.

{¶26} In its fourth assignment of error, Heron Point argues that because the lower court

erred in granting declaratory judgment to Appellees, they are not entitled to the costs of this

action.

{¶27} In light of our disposition of the third assignment of error, we decline to address

Heron Point’s fourth assignment of error. See App.R. 12(A)(1)(c); Tarquino v. Equity Trust Co.,

9th Dist. No. 06CA008913,

.

CROSS-APPEAL ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT ATTORNEY’S FEES PURSUANT TO OHIO REV. CODE §2323.51 AND CIV.R. 11 WHERE HERON POINT PURSUED A CLAIM THAT WAS NEITHER SUPPORTED BY THE FACTS OR LAW OR A GOOD FAITH ARGUMENT FOR MODIFICATION OR EXTENSION OF THE LAW.

{¶28} In its sole assignment of error on cross-appeal, Appellees argue that the trial court

erred when it failed to grant attorney’s fees pursuant to R.C. 2323.51 and Civ.R. 11 because

Heron Point pursued a claim that was neither supported by the facts or law, nor a good faith

argument for modification or extension of the law. We do not agree.

{¶29} The decision to grant or deny attorneys’ fees pursuant to R.C. 2323.51 lies in the

sound discretion of the trial court and will not be disturbed absent an abuse of that discretion.

State ex rel. Striker v. Cline,

,

. In order to find an

abuse of that discretion, we must determine that the trial court’s decision was unreasonable,

arbitrary or unconscionable. Blakemore,

. Under this standard of review, an

appellate court may not merely substitute its judgment for that of the trial court. Pons v. Ohio

State Med. Bd.,

(1993). 11

{¶30} R.C. 2323.51(B)(1) permits a party to litigation to seek recovery of attorney fees

incurred due to the frivolous conduct of the opposing party. “Conduct” refers to

[t]he filing of a civil action, the assertion of a claim, defense, or other position in connection with a civil action, the filing of a pleading, motion, or other paper in a civil action, including, but not limited to, a motion or paper filed for discovery purposes, or the taking of any other action in connection with a civil action.

R.C. 2323.51(A)(1)(a).

{¶31} R.C. 2323.51(A)(2)(a) provides that damages for frivolous conduct may be

awarded under any of the following conditions, and the statute defines frivolous conduct as any

of the following:

(i) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation.

(ii) It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.

(iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

{¶32} We have stated that the following two-step analysis applies to claims made

pursuant to R.C. 2323.51: “(1) whether an action taken by the party to be sanctioned constitutes

‘frivolous conduct,’ and (2) what amount, if any, of reasonable attorney fees necessitated by the

frivolous conduct is to be awarded to the aggrieved party.” Ceol v. Zion Indus., Inc.,

(9th Dist. 1992).

{¶33} Appellees also contend that they are entitled to sanctions based upon Civ.R. 11

which permits a court to award attorney fees in the event that a pleading or motion is filed in

contravention of the rule. Civ.R. 11 requires an attorney to sign all pleadings and further 12

provides that the signature constitutes a warrant that there is good ground for the action. “This

court has determined that before a court imposes sanctions under Civ.R. 11, it must consider

whether the attorney who signed the document (1) read it; (2) harbored good grounds to support

it to the best of his or her knowledge, information, and belief; and (3) did not file it for the

purpose of delay.” Lable & Co. v. Flowers,

(9th Dist. 1995), citing

Ceol v. Zion Indus., Inc.,

(9th Dist. 1992). If the rule is willfully

violated, sanctions are appropriate. The purpose of Civ.R. 11 is to deter pleading and motion

abuses and to assure the court that the pleading or motion was filed in good faith and with

sufficient grounds to support it. Stevens v. Kiraly,

(9th Dist. 1985).

{¶34} Appellees argue that Heron Point’s claims were frivolous because Ohio riparian

law is clear that there is an easement for navigation in favor of the public in every navigable

body of water. See Pollock v. Cleveland Shipbuilding Co,

(1897). They further

argue that Heron Point could not show that it had been materially and substantially damaged by

Appellees’ actions. Finally, they argue that no evidence could have established the Appellees

were entitled to a permanent injunction. Heron Point points out that the law of navigable

waterways in Ohio is constantly evolving. It contends that good faith arguments existed as to

whether the canal was navigable, whether the waterway had historically existed, and whether

Appellees had unreasonably modified the existing waterway. Had the court determined that it

was not a public, navigable waterway, then it would not be subject to a public easement. Based

on our review of the record, we cannot conclude that the trial court abused its discretion in

ultimately denying Appellees’ attorney fees based on R.C. 2323.51.

{¶35} Finally, Appellees argue that they are entitled to sanctions under Civ.R. 11 based

upon the “adjectives and adverbs employed by the Trial Court” to describe Heron Point’s claims. 13

For example, the magistrate’s decision states that Heron Point’s “position about re-filling the

canal is totally irreconcilable with the argument it makes in the alternative, which is that the

waterway should be maintained in its improved and opened-up configuration, vastly improved

for boating purposes but solely controlled by [Heron Point.]” It also states that declaring Heron

Point’s right to exclusive control over the canal, not to be used for public use, would be “totally

inconsistent and irreconcilable with existing Ohio Law.” It further finds that Heron Point “has

absolutely failed to demonstrate an entitlement to a permanent injunction * * *.” Finally, the

magistrate’s decision notes that both Heron Point’s first filings and final filing “failed to provide

any credible legal basis or factual evidence” to establish that the canal is not a public, navigable

waterway, and should be controlled solely by Heron Point.

{¶36} Under Civ.R. 11, Appellees must demonstrate a “willful violation” by an attorney

or a pro se party. “A willful violation involves a party who has willfully signed a pleading

which, to the best of his knowledge, information and belief, was not supported by good ground.”

Ponder v. Kamienski, 9th Dist. No. 23270,

, quoting Nationsrent v.

Michael Constr. Co., 9th Dist. No. 20755,

, *2 (Mar. 27, 2002). By merely

pointing to language in the trial court’s order, we conclude that Appellees have failed to

demonstrate a “willful violation” of the rule by an attorney or an abuse of discretion in the trial

court’s decision to deny sanctions under Civ.R. 11. As such, this argument is without merit.

{¶37} Because we conclude that the trial court did not abuse its discretion in denying the

motion for sanctions, Appellees’ assignment of error on cross-appeal is overruled. 14

III.

{¶38} Heron Point’s first and second assignments of error are overruled. We decline to

address its third and fourth assignments of error. Appellees’ assignment of error on cross-appeal

is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

CARLA MOORE FOR THE COURT

BELFANCE, P. J. WHITMORE, J. CONCUR. 15

APPEARANCES:

ROBERT E. KMIECIK and KEVIN M. FIELDS, Attorneys at Law, for Appellant/Cross- Appellee.

STEPHEN P. GRIFFIN and MICHAEL J. KAHLENBERG, Attorneys at Law, for Appellees/Cross-Appellants.