[Cite as McNabb v. Ottawa Cty. Commrs., 2019-Ohio-1487.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                   OTTAWA COUNTY


Dan McNabb, et al.                                         Court of Appeals No.   OT-17-036
                                                                                  OT-18-024
        Appellants/Cross-Appellees
                                                           Trial Court No. 17CV155
v.

Ottawa County Commissioners, et al.                        DECISION AND JUDGMENT

        Appellees/Cross-Appellants                         Decided: April 19, 2019


                                               *****

        Kevin J. Zeiher and Zachary E. Dusza, for appellants/cross-appellees.

        James F. Lang and Alexandra R. Forkosh, for appellee/cross-appellants.

                                               *****


        SINGER, J.

        {¶ 1} This consolidated appeal is before the court on the consolidated appeals of

appellants, Dan McNabb and Kelly McNabb, from the September 13 and December 4,

2017 judgments of the Ottawa County Court of Common Pleas, and the appeal of
appellees/cross-appellants, Joseph Hoffman and Nancy Nemec (“appellees”), from the

trial court’s June 22, 2018 judgment. For the reasons that follow, we reverse, in part, and

affirm, in part, the September 13, 2017 judgment, and find the assignments of error

regarding the December 4, 2017 and June 22, 2018 judgments are moot.

                           Appellants’ Assignments of Error

       {¶ 2} The trial court committed reversible error when it granted Defendants’

Hoffman and Nemec Motion to Dismiss.

       {¶ 3} The trial court committed reversible error when it denied Plaintiffs’ Motion

to File Second Amended Complaint.

                             Appellees’ Assignment of Error

       {¶ 4} The trial court erred in denying the “Motion of Defendants Hoffman and

Nemec for Frivolous Conduct Sanctions” because it ignored the statutory test in R.C.

2323.51 for frivolous conduct and applied an incorrect legal standard of “subjective

willfulness.”

                       Background Facts and Procedural History

       {¶ 5} This case emanates from a dispute over littoral rights between appellants and

appellees, owners of adjacent property located on the shore of Lake Erie. “Littoral rights

are those ownership rights of a property owner whose land abuts a lake to the use and

enjoyment of the waters of and the land underlying the lake.” Lemley v. Stevenson, 104

Ohio App.3d 126, 133, 661 N.E.2d 237 (6th Dist.1995). “With regard to Lake Erie, an

owner of shoreline or ‘upland’ property has limited littoral rights as dictated by the

‘public trust’ doctrine.” Id. “[T]he title of land under the waters of Lake Erie within the

2.
limits of the state of Ohio [is] in the state which holds the land in trust for the benefit of

the public.” Id., citing State v. Cleveland & Pittsburgh Railroad Co., 94 Ohio St. 61, 113

N.E. 677 (1916), paragraph three of the syllabus. “The littoral owner is entitled to access

navigable water on the front of which his land lies, and, subject to regulation and control

by the federal and state governments, has, for purposes of navigation, the right to wharf

out to navigable water.” Cleveland & Pittsburgh Railroad Co. at paragraph four of the

syllabus. “This so-called ‘public trust’ doctrine was later codified.” Lemley at 133. See

R.C. 1506.10 (“[T]he waters of Lake Erie consisting of the territory within the boundaries

of the state * * * together with the soil beneath and their contents, do now belong and

have always, since the organization of the state of Ohio, belonged to the state.”).

       {¶ 6} On May 8, 2017, appellants filed their complaint for declaratory judgment

against the Ottawa County Commissioners (“Commissioners”), Ohio Department of

Natural Resources (“ODNR”), appellees’ predecessor (“the predecessor”) and appellees.

       {¶ 7} The Commissioners filed an answer to the complaint. ODNR and appellees

filed motions to dismiss the complaint for failing to state a claim. ODNR and appellees

argued there was no legal basis for appellants’ claims because the Ohio Revised Code

sections upon which appellants relied, R.C. 123.03 and 123.031 et seq., had been

repealed in 1989. ODNR also asserted appellants lacked standing. In addition, appellees

argued appellants’ claims were barred by the applicable statute of limitations. Appellants

then sought and were granted permission to file an amended complaint.




3.
       {¶ 8} On June 23, 2017, appellants filed their amended complaint for declaratory

judgment against the same parties named in their original complaint.1 In their amended

complaint, appellants set forth four causes action: declaratory relief; damage to real

property; trespass; and, replevin.

       {¶ 9} In the amended complaint, appellants alleged, inter alia, the following as

background facts: the Commissioners and ODNR were “subject to the guidelines of R.C.

1501.01, 1504.02, 1506.10, 1506.11 and rules promulgated under Chapter 119, Ohio

Revised Code and authorized by Section 1506.02 Ohio Revised Code”; the

Commissioners adopted Resolution No. 97-55 (“the resolution”), in August of 1997,

“which approved the use of submerged lands [of Lake Erie] for [the predecessor’s]

property located [in] Danbury Township, Ottawa County, Ohio, which grant extended

beyond [the predecessor’s] property lines into the submerged lands of [appellants]”; in

November of 1997, the ODNR issued a 50-year Submerged Lands Lease (“the lease”) to

the predecessor for a private docking basin; in January 2003, the predecessor assigned the

lease to appellees; appellees applied to the Department of the Army (“Army”) in August

2015, for a permit to reduce the size of an existing groin2 extending into Sandusky Bay of

Lake Erie.



1
 According to the trial court docket, service of the original complaint and the amended
complaint was never perfected as to the predecessor.
2
 “A groin is ‘a rigid structure built out from a shore to protect the shore from erosion, to
trap sand, or to direct a current * * *.’ Merriam-Webster's Collegiate Dictionary (10
Ed.1996) 513-514.” Hack v. Sand Beach Conservancy Dist., 176 Ohio App.3d 309,
2008-Ohio-1858, 891 N.E.2d 1228, ¶ 3 (6th Dist.).
4.
          {¶ 10} In the first cause of action, appellants alleged and sought a declaration that

the Commissioners’ approval of the resolution, ODNR’s grant of the lease, the

assignment of the lease and appellees’ application for a permit from the Army were “void

ab initio for the failure to provide public notice and to hold a public hearing for the

original application for a submerged land lease” which violated appellants’ due process

rights.

          {¶ 11} In the second cause of action, for damage to real property, appellants

alleged that on May 28, 2015, appellees began excavating the groin including property

owned by appellants, and removed rocks, dirt and debris, which violated the grant from

the Army and increased erosion to appellants’ land. In the third cause of action, for

trespass, appellants alleged that on or after May 28, 2015, appellees invaded land owned

by appellants without privilege. In the fourth cause of action, for replevin, appellants

alleged that on or after May 28, 2015, appellees wrongfully acquired and removed rocks,

dirt and debris from appellants’ land without privilege, resulting in a continuing trespass

and an ongoing insult to appellants’ real property.

          {¶ 12} The Commissioners filed an answer to the amended complaint. In their

answer, the Commissioners maintained they complied with their responsibilities under

the law, including R.C. 1506.11, which did not require them to provide notice prior to

adopting the resolution, and they denied their actions in passing the resolution were void

ab initio.

          {¶ 13} ODNR and appellees filed motions to dismiss the amended complaint for

failing to state a claim. ODNR and appellees argued, inter alia, appellants’ claims were

5.
barred by the applicable six-year statute of limitations pursuant to R.C. 2305.07.

Appellees requested appellants’ amended complaint be dismissed with prejudice.

       {¶ 14} On September 13, 2017, the trial court issued an order with respect to

appellees and ODNR’s motions to dismiss. For its analysis, the court set forth

“Plaintiff’s [sic] claims are based upon actions that occurred in 1997 and 2003, thus are

barred by any applicable statute of limitation [sic].” The court ruled “[i]t is therefore

ORDERED * * * that [appellees] and * * * ODNR’s Motion [sic] to Dismiss is [sic]

GRANTED.”

       {¶ 15} On September 21, 2017, the Commissioners filed a motion for clarification

or dismissal. It was the Commissioners’ position that the court, in granting appellees and

ODNR’s motions to dismiss, dismissed the case in its entirety. In the alternative, the

Commissioners moved, pursuant to Civ.R. 12(B)(6), to have the amended complaint

dismissed as to the Commissioners “utilizing the same reasoning as found in the Order

regarding the other Defendants. Specifically, the Plaintiffs’ claims against [the

Commissioners] are also based upon actions that occurred in 1997 and are barred by

applicable statute of limitation. [sic]”

       {¶ 16} On September 22, 2017, appellants filed a motion to file a second amended

complaint for damages only against appellees. In the motion, appellants set forth “[t]he

Court has granted [appellees] and * * * ODNR’s Motion to Dismiss * * * [but] [w]hat

was and is not clear is if the Court intended to dismiss Counts Two, Three and Four * * *

or merely Count One.” Appellants acknowledged count one was “dismissed based upon

the clear language of this Court’s Opinion,” but stated counts two, three and four of the

6.
amended complaint “exist separate and apart from the claims for Declaratory Judgment

asserted in Count One.”

       {¶ 17} On December 4, 2017, the trial court issued an order finding “[u]pon due

consideration, * * * the previous Motion to Dismiss dismissed as to all Defendants,

including the * * * Commissioners.”3 The court further stated “[i]t is therefore

ORDERED * * * that the Motion to File Second Amended Complaint is DENIED.”

       {¶ 18} On December 29, 2017, appellees filed a motion for sanctions, pursuant to

Civ.R. 11 and R.C. 2323.51, for appellants’ frivolous claims. A hearing was held. On

June 22, 2018, the court found appellants’ actions were not willful, malicious or in bad

faith, and the court denied appellees’ motion for sanctions. Appeals were filed.

                          Appellants’ First Assignment of Error

       {¶ 19} Appellants contend the trial court committed reversible error when it

granted appellees’ motion to dismiss.

       {¶ 20} In their motion to dismiss the amended complaint, appellees argued all of

appellants’ causes of action were barred by the six-year statute of limitations set forth in

R.C. 2305.09. Appellees asserted appellants’ causes of action arose from the

Commissioners and ODNR’s alleged failures, in 1997, to comply with sections of the



3
 This finding was incorrect as the Commissioners had not filed a motion to dismiss prior
to the court’s September 13, 2017 order granting appellees and ODNR’s motions to
dismiss. Moreover, the Commissioners’ September 21, 2017 motion to dismiss pursuant
to Civ.R. 12(B)(6) should have been considered as a Civ.R. 12(C) motion for judgment
on the pleadings, because the motion was filed after the close of the pleadings. However,
since appellants have not assigned as error the trial court’s ruling with respect to the
Commissioners’ motion, it is not necessary to address these issues further.
7.
Ohio Revised Code, when the Commissioners approved of the resolution and ODNR

issued the lease. Appellees also asserted appellants’ causes of action arose in 2003, when

the lease was assigned to appellees. In addition, appellees argued the Commissioners and

ODNR did not violate R.C. 1501.01, 1504.02, 1506.10 or 1506.11. Appellees observed

pursuant to R.C. 1506.11(D), upland owners who erected structures in the submerged

waters in front of the uplands prior to October 13, 1955, “shall be granted a lease or

permit by the state” upon the presentation of a resolution of the Commissioners.

Appellees note no notice or hearing is required under R.C. 1506.11(D).

                                   Standard of Review

       {¶ 21} The standard of review on a Civ.R. 12(B) motion to dismiss is de novo.

Greeley v. Miami Valley Maintenance Contractors Inc., 49 Ohio St.3d 228, 551 N.E.2d

981 (1990). A motion to dismiss for failure to state a claim upon which relief can be

granted tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey County

Bd. of Commissioners, 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). Under a de novo

analysis, we must accept all factual allegations of the complaint as true and all reasonable

inferences must be drawn in favor of the nonmoving party. Perrysburg Twp. v. City of

Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. In order for a

complaint to be dismissed pursuant to Civ.R. 12(B)(6), it must appear beyond doubt that

the plaintiff can prove no set of facts in support of the claim which would entitle the

plaintiff to relief. York v. Ohio State Highway Patrol, 60 Ohio St.3d 143, 144, 573

N.E.2d 1063 (1991).



8.
                              Appellants’ First Cause of Action

          {¶ 22} In the amended complaint, appellants alleged and sought a declaration that

the Commissioners’ approval of the resolution, ODNR’s grant of the lease, the

assignment of the lease and appellees’ application for a permit from the Army were all

“void ab initio for the failure to provide public notice and to hold a public hearing for the

original application for a submerged land lease” which violated appellants’ due process

rights.

          {¶ 23} Accepting all of the factual allegations of the amended complaint as true

and drawing all reasonable inferences in favor of appellants, we find appellants failed to

state a claim upon which relief could be granted in their first cause of action. As pled,

and under the facts of this case, none of the statutes alleged in the first cause of action

required notice or a hearing prior to the issuance of a submerged land lease. Since

appellants alleged the Commissioners’ approval of the resolution, ODNR’s grant of the

lease, the assignment of the lease and appellees’ application for a permit from the Army

were void for failing to provide notice and a hearing, but no notice and hearing were

necessary, appellants failed to state a claim upon which relief could be granted.

          {¶ 24} Although the trial court determined appellants failed to state a claim in

their first cause of action because the claim was barred by the applicable statute of

limitations, we affirm the holding. “[W]hen a trial court states an erroneous basis for its

judgment, we must nevertheless affirm such judgment if it is legally correct on other

grounds, that is, it achieves the right result for the wrong reason, because such an error

was not prejudicial.” Bowling Transp. v. Gregg, 6th Dist. Sandusky No. S-96-007, 1997

9.
Ohio App. LEXIS 168, *9 (Jan. 24, 1997). Accordingly, appellants’ first assignment of

error with respect to the first cause of action in the amended complaint is not well-taken.

               Appellants’ Second, Third and Fourth Causes of Action

       {¶ 25} In the amended complaint, appellants alleged damage to real property,

trespass and replevin by and against appellees.

       {¶ 26} In the second cause of action, damage to real property, appellants alleged

that appellees, in 2015, began excavating the groin and removed rocks, dirt and debris,

which violated the grant from the Army and “increased the erosion to the upland owners,

[appellants].” Appellants further alleged appellees’ actions “damaged the real property

owned by [appellants], exposing it to unwarranted erosion and ongoing erosion.”

       {¶ 27} In the third cause of action, trespass, appellants alleged appellees “invaded

the land owned by the [appellants] without any privilege to do so resulting in a trespass.”

       {¶ 28} In the fourth cause of action, replevin, appellants alleged appellees

“wrongfully acquired and removed rocks, dirt and debris from the lands of the

[appellants] without privilege.” Appellants further alleged appellees’ actions “resulted in

a continuing trespass and an ongoing insult to the [appellants’] real property.”

                                Damage to Real Property

       {¶ 29} A cause of action for damage to real property is an action sounding in tort.

See Kocisko v. Charles Shutrump & Sons Co., 21 Ohio St.3d 98, 99, 488 N.E.2d

171(1986); Harris v. Liston, 86 Ohio St.3d 203, 714 N.E.2d 377 (1999), paragraph one of

the syllabus. In a negligence action, a plaintiff must generally prove the defendant owed



10.
plaintiff a duty, the duty was breached, and the breach was the proximate cause of

plaintiff’s damages. See Jeffers v. Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614

(1989).

                                          Trespass

       {¶ 30} To state a cause of action in trespass, the property owner must prove two

elements: an unauthorized, intentional act by the defendant, and an intrusion by defendant

which interferes with the property owner’s right of exclusive possession of the property.

See Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 716, 622 N.E.2d 1153

(4th Dist.1993); Bayes v. Toledo Edison Co., 6th Dist. Lucas Nos. L-03-1177, L-03-1194,

2004-Ohio-5752, ¶ 59.

       {¶ 31} There are several types of trespass, including ordinary trespass, permanent

trespass and continuing trespass. See Hartland v. McCullough Constr., 6th Dist. Ottawa

No. OT-99-058, 2000 Ohio App. LEXIS 3126, *12-14 (July 14, 2000), citing Valley Ry.

Co. v. Franz, 43 Ohio St. 623, 4 N.E. 88 (1885). An ordinary trespass occurs “‘[w]hen a

man commits an act of trespass upon another’s land, and thereby injures such other at

once and to the full extent that such act will ever injure him.’” Hartland at *12, quoting

Valley Ry. at 625. A permanent trespass happens when the defendant’s allegedly tortious

act has been fully accomplished. Sexton v. City of Mason, 117 Ohio St.3d 275, 2008-

Ohio-858, 883 N.E.2d 1013, ¶ 45. A continuing trespass occurs when there is some

continuing or ongoing allegedly tortious activity or retention of control attributable to the

defendant. Id. In other words, a trespass is continuing only if the trespass itself is

continuing, as opposed to the harm caused by a past trespass. Id. at ¶ 41.

11.
                                         Replevin

       {¶ 32} Replevin is defined as:

              * * * a remedy and a civil action by which the owner or one who has

       a general or special interest in specific and identifiable personal property

       and the right to its immediate possession seeks to recover the possession of

       such property in specie, the recovery of damages, if it is sought, being only

       incidental.” (Citations omitted.) Gates v. Praul, 10th Dist. Franklin No.

       10AP-784, 2011-Ohio-6230, ¶ 33.

                                          Analysis

       {¶ 33} Accepting all of the factual allegations of the amended complaint as true

and drawing all reasonable inferences in favor of appellants, we find appellants have

stated claims upon which relief could be granted in their second, third and fourth causes

of action. While these causes of action may not be artfully pled, appellants have stated

claims for relief based on appellees’ excavation of the groin which caused erosion,

invasion, insult and damage to appellants’ shoreline property.

       {¶ 34} We recognize that appellants have also alleged, in these three causes of

action, some property ownership in the groin. As set forth previously, the waters of Lake

Erie, together with the soil beneath and their contents, belong to the state of Ohio. See

R.C. 1506.10. Therefore, appellants have no property ownership in the groin. To the

extent appellants have alleged any damages arising out of a claim of ownership in the

groin, those portions of the causes of action fail to state a claim upon which relief can be

granted.

12.
       {¶ 35} As to the issue of the statute of limitations, upon review, appellants’

allegations against appellees in the second, third and fourth causes of action are based on

appellees’ conduct on or after May 28, 2015. The applicable statute of limitations for

these causes of action is set forth in R.C. 2305.09, which provides:

              Except as provided for in division (C) of this section, an action for

       any of the following causes shall be brought within four years after the

       cause thereof accrued:

              (A) For trespassing upon real property;

              (B) For the recovery of personal property, or for taking or detaining

       it;

              ***

              (D) For an injury to the rights of the plaintiff not arising on contract

       nor enumerated in sections 1304.35, 2305.10 to 2305.12, and 2305.14 of

       the Revised Code;

              (E) For relief on the grounds of a physical or regulatory taking of

       real property.

       {¶ 36} In Harris v. Liston, 86 Ohio St.3d 203, 714 N.E.2d 377 (1999), paragraphs

one and two of the syllabus, the Supreme Court of Ohio adopted the discovery rule for

tort actions alleging injury or damage to real property such that the four-year statute of

limitations, set forth in R.C. 2305.09(D), commences when it is discovered or reasonably

should have been discovered that there is damage to the property. Moreover, in

construing the statute of limitations for trespass actions, set forth in R.C. 2305.09(A), the

13.
Supreme Court of Ohio held that if a trespass is continuing rather than a single completed

act, the limitations period is tolled. Sexton, 117 Ohio St.3d 275, 2008-Ohio-858, 883

N.E.2d 1013, at ¶ 30-33.

       {¶ 37} Here, appellants alleged in the amended complaint that their second, third

and fourth causes of action are based on appellees’ conduct on or after May 28, 2015. A

review of the record shows appellants filed their original complaint on May 8, 2017, and

their amended complaint on June 23, 2017, well within the four-year period of the statute

of limitations. Further, to the extent appellants have alleged a continuing trespass, the

limitations period may be tolled. Therefore, appellants’ causes of action against

appellees for damage to real property, trespass and replevin are not barred by the statute

of limitations.

       {¶ 38} In light of the foregoing, appellants’ first assignment of error, with respect

to the second, third and fourth causes of action in the amended complaint, is well-taken,

in part.

                        Appellants’ Second Assignment of Error

       {¶ 39} Appellants assert the trial court erred in denying their motion to file a

second amended complaint for damages against appellees only. Appellants contend they

filed their motion after the trial court, “ignoring the facts in Appellants’ pleadings and

erroneously relying upon Appellees’ defense that Appellants’ claims were barred by

statute of limitations,” granted appellees’ motion to dismiss. Appellants note the court,

without any reasoning or explanation, denied their motion to file a second amended



14.
complaint. Appellants submit their request to amend was supported with a tendered copy

of the second amended complaint.

       {¶ 40} A review of appellants’ motion to file a second amended complaint reveals

that appellants were somewhat confused by the trial court’s September 13, 2017 order, as

appellants were uncertain if the court intended to dismiss their claims against appellees

(counts two, three and four). Thus, appellants sought to emphasize that these claims

“exist separate and apart from the claims for Declaratory Judgment asserted in Count

One.” A review of the tendered second amended complaint4 shows appellants did not

seek to allege any new matters. Rather, it appears appellants simply wanted to refine

their complaint to reflect the trial court’s clear dismissal of the first count.

       {¶ 41} In light of our treatment of appellants’ first assignment of error, appellants’

second assignment of error is moot. It is therefore unnecessary to determine whether the

trial court erred in denying appellant’s motion to file a second amended complaint. See

App.R. 12(A)(1)(c).

                              Appellees’ Assignment of Error

       {¶ 42} Turning to appellees’ assignment of error, based on our resolution of

appellants’ first assignment of error, it is unnecessary to address appellees’ assigned

error, as it is rendered moot. See App.R. 12(A)(1)(c).



4
 We note the docket indicates a proposed second amended complaint was submitted on
September 26, 2017, yet this document is not included in the record of the case.
Nevertheless, we were able to review a copy of the tendered second amended complaint,
as it was attached to appellants’ appellate brief.

15.
                                        Conclusion

       {¶ 43} The September 13, 2017 judgment of the Ottawa County Court of Common

Pleas is affirmed, in part, and reversed, in part, and the case is remanded for further

proceedings consistent with this opinion. Appellants and appellees are ordered to split

the costs of this appeal pursuant to App.R. 24.

                                                                Judgment affirmed, in part,
                                                                and reversed, in part.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                          _______________________________
                                                              JUDGE
Arlene Singer, J.
                                                  _______________________________
Christine E. Mayle, P.J.                                      JUDGE
CONCUR.
                                                  _______________________________
                                                              JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




16.
