[Cite as Vanderlaan v. Pavlik, 2015-Ohio-5349.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



AARON A. VANDERLAAN,                              :    APPEAL NO. C-150060
                                                       TRIAL NO. A-1307814
   and                                            :
                                                            O P I N I O N.
ALLISON S. VANDERLAAN,                            :

        Plaintiffs-Appellees,                     :

  vs.                                             :

DAVID PAVLIK,                                     :

   and                                            :

SUSAN PAVLIK,                                     :

     Defendants-Appellants.                       :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: December 23, 2015




Dinsmore & Shohl LPA and Mark A. Vander Laan, for Plaintiffs-Appellees,

Keating Muething & Klekamp PLL and Charles M. Miller, for Defendants-
Appellants.




Please note: this case has been removed from the accelerated calendar.
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M OCK , Judge.

       {¶1}    In four assignments of error, defendants-appellants David and Susan

Pavlik appeal the judgment of the trial court in favor of plaintiffs-appellees Aaron

and Allison Vanderlaan for breach of contract and fraud. For the reasons set forth

below, we reverse.

                         Real Estate Sale Leads to Litigation

       {¶2}    In 1981, the Pavliks entered into an agreement with Donald and

Susan Ayer. The Ayers, who owned the property adjacent to the Pavliks’ property,

granted the Pavliks an easement through the Ayers’ property for the purpose of

constructing a sewer line. The easement contained a provision that stated that “[t]he

cost of constructing, maintaining, repairing or operating the sewer line within the

easement shall be the sole obligation of the [Pavliks].” Twenty-six years later, the

Pavliks sold their home to the Vanderlaans. The “Contract to Purchase” indicated,

among other things, that the property was “not subject to a maintenance agreement.”

At the closing, the “Transfer Certificate of Title” properly described the property and

listed, as part of the transaction, a “non-exclusive, permanent sewer easement and

right of way as more particularly described in deed book 4203, page 217 of the

registered land records of Hamilton County, Ohio.”

       {¶3}    In 2013, an attorney for the Ayers made a written demand that the

Vanderlaans repair damage caused by the sewer line. The Vanderlaans paid for the

repair and then brought suit against the Pavliks for breach of contract and fraud.

They claimed that the easement constituted a maintenance agreement that should

have been disclosed, and that such a maintenance agreement was expressly denied in




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the “Contract to Purchase.” At the conclusion of the bench trial, the trial court

awarded damages to the Vanderlaans.

                     Trial Court Should Have Dismissed Claims
                             Pursuant to Civ.R. 41(B)(2)

       {¶4}    In their first assignment of error, the Pavliks claim that the trial court

should have granted their motion to dismiss filed pursuant to Civ.R. 12(B)(6). “A

motion to dismiss for failure to state a claim upon which relief can be granted is

procedural and tests the sufficiency of the complaint.” State ex rel. Hanson v.

Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). But

courts are limited to examining the face of the complaint, may not consider matters

outside the complaint, and must presume all the assertions in the complaint are true.

State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997).

       {¶5}    The Pavliks’ argument for dismissal requires reference to more than

the allegations in the complaint. We must also consider the “Contract to Purchase,”

the sewer easement, the “Transfer Certificate of Title,” and the testimony of the

parties regarding receipt of those documents. Since the Pavliks’ arguments relied on

information outside the face of the complaint, their initial motion to dismiss was not

the proper vehicle by which to resolve the matter. The trial court properly denied it.

The first assignment of error is overruled.

       {¶6}    In their second assignment of error, the Pavliks claim that the trial

court should have granted their Civ.R. 41(B) motion to dismiss. Pursuant to Civ.R.

41(B)(2), a defendant in a bench trial may move for dismissal at the close of the

presentation of the plaintiff's evidence on the grounds that the plaintiff has failed to

prove its case and has not demonstrated that it is entitled to relief. When ruling on a

Civ.R. 41(B)(2) motion to dismiss, a trial court is entitled to weigh the evidence


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presented. St. Clair v. Person, 1st Dist. Hamilton No. C-010094, 2002 Ohio App.

LEXIS 1154 (March 15, 2002). The court is not required to view the evidence in the

light most favorable to the plaintiff. Harris v. Cincinnati, 79 Ohio App.3d 163, 168,

607 N.E.2d 15 (1st Dist.1992), citing Jacobs v. Bd. of Cty. Commrs., 27 Ohio App.2d

63, 65, 272 N.E.2d 635 (3d Dist.1971). A reviewing court should set aside the trial

court's judgment if it was erroneous as a matter of law or against the manifest weight

of the evidence. Person.

       {¶7}    In order to establish a breach-of-contract claim in a real-estate

transaction, the Vanderlaans must establish “the existence of a binding contract or

agreement; the nonbreaching party performed its contractual obligations; the other

party failed to fulfill its contractual obligations without legal excuse; and the

nonbreaching party suffered damages as a result of the breach.” Garofalo v. Chicago

Title Ins. Co., 104 Ohio App.3d 95, 108, 661 N.E.2d 218 (8th Dist.1995).

       {¶8}    In this case, the Vanderlaans claim that the Pavliks breached their

agreement when they asserted that the property was not subject to a maintenance

agreement when it was.       The 1981 sewer easement granted a “non-exclusive,

permanent sewer easement and right-or-way” in favor of the Pavliks over the land

owned by the Ayers. As part of that easement, the Pavliks were granted the “right of

entry and re-entry for construction, maintenance, operation of the sewer line within

this easement” and required the Pavliks to restore the surface area to its prior

condition in the event that the Pavliks had to break the surface of the Ayers’ land in

order to maintain the sewer line. We conclude that the sewer easement in this case

does not rise to the level of a “maintenance agreement” as that term was used in the

“Contract to Purchase.”




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       {¶9}    Generally, an easement is defined as an interest in the land of another

which entitles the owner of the easement to a limited use of the land in which the

interest exists. Dalliance Real Estate, Inc. v. Covert, 11th Dist. Geauga No. 2013-G-

3139, 2013-Ohio-4963, ¶ 32.     Under the common law, unless the owner of the

servient estate is bound to make repairs, the burden “devolves upon the owner of the

dominant estate, of making whatever repairs are necessary for his use [of the

easement].” Colace v. Wander, 5th Dist. Richland No. 2006 CA 0005, 2006-Ohio-

7094, ¶ 62, quoting National Exchange Bank v. Cunningham, 46 Ohio St. 575, 589,

22 N.E.924 (1889).

       {¶10}   Under the terms of the sewer easement, the Vanderlaans were not

required to do anything more than maintain their own property, and had no

additional duties other than those that would have been imposed under common

law. Such an obligation is not like the type of maintenance agreements normally

contemplated in real-estate transactions, namely the obligation to maintain an

improved property for some mutual benefit. See, e.g., Johnson v. Keith, 12th Dist.

Clermont No. CA2012-04-032, 2013-Ohio-451 (a maintenance agreement involving a

driveway shared by multiple parties); Country Club S. Homeowners Assn. v. Warren

Country Club Villas Condominium Unit Owners Assn., 11th Dist. Trumbull No.

2012-T-0001, 2012-Ohio-5835 (a maintenance agreement involving an entrance

roadway to a development). This is especially true considering that the “Contract to

Purchase” lists “maintenance agreements” along with other such encumbrances as

whether the property is “subject to a homeowner association charter” with

mandatory membership, “subject to a homeowner association assessment,” or

whether there are any “encroachments, shared driveways, [or] party walls.”




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         {¶11}     As the Pavliks noted, “[t]here is nothing in the Sewer Easement that

requires Vander Laan [sic] to maintain anything he does not own.” We conclude that

the sewer easement in this case does not rise to the level of a maintenance agreement

as that term is used in the “Contract to Purchase.” Therefore, the trial court should

have granted the Pavliks’ Civ.R. 41(B) motion to dismiss the breach-of-contract

claim.

         {¶12}     The second cause of action that the Vanderlaans asserted was that the

Pavliks’ failure to disclose the “maintenance agreement” amounted to fraud. Before

we address the merits of that assertion, we must first determine whether that claim

has been timely asserted.

         {¶13}     Pursuant to R.C. 2305.09(C), an action for relief on the ground of

fraud “shall be brought within four years after the cause thereof accrued * * * .” The

Ohio Supreme Court has interpreted this statute to mean that the four-year-

limitations period commences to run when the complainant has discovered, or

should have discovered in the exercise of reasonable diligence, the alleged fraud.

Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 546 N.E.2d 206 (1989), paragraph

2b of the syllabus; see Cundall v. U.S. Bank, 122 Ohio St.3d 188, 2009-Ohio-2523,

909 N.E.2d 1244, ¶ 24. In discussing the application of the discovery rule to fraud

cases, the Supreme Court of Ohio has stated, “[c]onstructive knowledge of facts,

rather than actual knowledge of their legal significance, is enough to start the statute

of limitations running under the discovery rule.” Cundall at ¶ 30.

         {¶14}     The “Transfer Certificate of Title” included a reference to the sewer

easement.        Aaron Vanderlaan testified that the reference was available in the

paperwork he received as a result of the sale in 2007. It was at this point that the

Vanderlaans were put on notice of the agreement. Their claim for fraud, filed in


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2013, was untimely and should have been dismissed by the trial court. The second

assignment of error is sustained.

                                      Conclusion

       {¶15}   We overrule the Pavliks’ first assignment of error, but sustain their

second. The Pavliks’ third assignment of error claimed that the trial court’s decision

was against the manifest weight of the evidence, and their fourth took issue with the

damage award. Both are rendered moot by our resolution of the second assignment

of error. We reverse the judgment of the trial court, and remand the cause to the

trial court with instructions to enter judgment for the Pavliks.

                                                Judgment reversed and cause remanded.



HENDON, P.J., and CUNNINGHAM, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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