[Cite as Northwest Ohio Properties, Ltd. v. Lucas Cty., 2018-Ohio-4239.]




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


Northwest Ohio Properties, Ltd.                             Court of Appeals No. L-17-1190

        Appellant/Cross-Appellee                            Trial Court No. CI0201602638

v.

County of Lucas, et al.                                     DECISION AND JUDGMENT

        Appellees/Cross-Appellant                           Decided: October 19, 2018

                                                  *****

        Marvin A. Robon and Zachary J. Murry, for appellant/cross-appellee.

        Julia R. Bates, Lucas County Prosecuting Attorney, John A. Borell
        and Kevin A. Pituch, Assistant Prosecuting Attorneys, for appellees
        Lucas County.

        John J. McHugh, III, for appellee/cross-appellant Gulfstream
        Development, Ltd.

                                                  *****

        SINGER, J.

        {¶ 1} Appellant, Northwest Ohio Properties, Ltd., and intervening

defendant/cross-appellant Gulfstream Development, Ltd. (“Gulfstream”), appeal the
June 26, 2017 judgment of the Lucas County Court of Common Pleas. For the following

reasons, we affirm the trial court’s judgment.

       {¶ 2} Appellant sets forth two assignments of error:

              1. The Trial Court committed reversible error by entering summary

       judgment in favor of the Defendant-Appellee Lucas County and

       Intervening Defendant/Cross-Appellant Gulfstream Development, Ltd.

              2. The Trial Court committed reversible error by denying Plaintiff’s

       Cross-Motion for Partial Summary Judgment when the undisputed material

       facts of the case established that Plaintiff was entitled to summary

       judgment on its ejectment claim and where Plaintiff’s ejectment claim is

       not subject to Ohio’s political subdivision tort immunity statutory scheme.

              Gulfstream sets forth two cross-assignments of error:

              1. The trial court erred prejudicially in granting the Civ.R. 15(B)

       pretrial motion to amend the pleadings to conform to the evidence without

       affording the intervening defendant any opportunity to oppose the motion.

              2. The trial court erred prejudicially in determining that the

       intervening defendant was responsible for the payment of any and all tap

       fees to be prospectively charged by Lucas County to plaintiff for its

       connection to the sanitary sewer line.




2.
                                        Facts

       {¶ 3} Appellant owns over 60 acres of land at the corner of Crissey Road and

Central Avenue in Lucas County, Ohio. Near appellant’s land, Watermark Properties,

Ltd. V (“Watermark”), owned property which was being developed into Waterside

Sylvania, a residential subdivision (“the subdivision”). Ankney Enterprises, Inc. (“AE”)

acted as the manager of Watermark, and Duane Ankney was the managing member of

AE.

       {¶ 4} Watermark’s property did not have access to sanitary sewer service, so

sewer lines needed to be constructed. It was proposed that one of these sewer lines, a

force main, would be installed underground on ten feet of appellant’s property. To that

end, on September 1, 2006, Marvin Robon, managing member of appellant, sent a letter

to “Duane Ankney, of Watermark,” which provided in pertinent part:

              My understanding is that we can tap the force main, so I have asked

       Colin Gil to install two (2) reducers which we will pay for * * *.

              My understanding is a construction easement is needed to install the

       line, so we agree to give you permission and Colin Gil permission to go on

       the property for such installation provided there is no charge to us for

       tapping into the force main.

              Please sign a copy of this letter and return it to me.

       {¶ 5} On the bottom of the letter, under the heading, “Acceptance and

Agreement,” it is stated:




3.
              “Duane Ankney on behalf of the entity that will own the force main

       hereby agrees and consents to the foregoing agreement.” Ankney signed

       the letter on September 11, 2006.

       {¶ 6} Colin Gil, president of Snowden Construction Company, Inc., contracted

with Ankney to install the force main across appellant’s property. Construction of the

sewer project commenced, with oversight by the office of the Lucas County Sanitary

Engineer (“Engineer”), and a sewer system including the force main was installed

connecting the subdivision to a newly constructed pumping station.

       {¶ 7} Robon, in an October 5, 2007 letter, advised the Engineer of appellant’s

agreement with Ankney. Robon also informed the Engineer that “[m]y understanding is

that this force main and pumping station are going to be dedicated to the county and we

want you to be aware that we expect a free tap in the future.”

       {¶ 8} The Engineer, in his October 10, 2007 letter in response to Robon, initially

denied Robon’s demand of “free taps,” as no connections directly to the force main had

been approved by the Engineer’s office. Later, however, the Engineer agreed to allow

two taps into the force main, in accordance with the September 2006 agreement, once

appellant determined how its property would be developed.

       {¶ 9} In 2009, Huntington National Bank (“HBN”) took a cognovit judgment

against Watermark, and sought to foreclose on a mortgage granted to Watermark.

Watermark was placed into receivership.




4.
       {¶ 10} In 2012, HBN sold and assigned its judgment against Watermark to

Waterside Sylvania, LLC (“WSLLC”). WSLLC then sought to foreclose on

Watermark’s mortgage. In April 2013, all matters affecting title to the Watermark

property were settled. Thus, WSLLC became the new owner of the subdivision property,

and Gulfstream became the new developer of the subdivision, with Ankney as the

managing member of Gulfstream.

       {¶ 11} Since the completion of the sewer project in 2007, the Lucas County

defendants have operated and maintained the sewer system, but have not accepted

ownership of it. Moreover, appellant has never tapped into the force main on its

property. However, the subdivision utilizes the sanitary sewer and the Lucas County

defendants collect sewage fees from residents of the subdivision.

                                          Lawsuit

       {¶ 12} On May 3, 2016, appellant filed its complaint against the County of the

Lucas, Lucas County Board of County Commissioners, Lucas County Sanitary Engineer,

Lucas County Engineer, Lucas County Plan Commission, Lucas County Recorder, The

Hartford Financial Services Group, Inc., and Huntington Bancshares, Inc. Appellant set

forth six claims in the complaint relating to the force main sewer line across its property:

trespass; injunction; unjust enrichment/compensation; tortious interference with business

relations; conspiracy; and declaratory judgment on bonds.

       {¶ 13} On August 10, 2016, appellant voluntarily dismissed Huntington

Bancshares, Inc. as a defendant.




5.
       {¶ 14} On August 12, 2016, appellant filed an amended complaint which

incorporated all of the causes of action in its original complaint and added/substituted

HBN as a defendant, and added three causes of action relating to the force main on its

property: violation of constitutional rights; ejectment; and breach of contract.

       {¶ 15} The Lucas County defendants filed a motion for judgment on the pleadings

moving to dismiss all nine of the claims alleged against them.

       {¶ 16} On November 3, 2016, Gulfstream filed a motion to intervene as a

defendant; the motion was granted. On November 4, 2016, Gulfstream filed its answer to

appellant’s amended complaint.

       {¶ 17} On November 14, 2016, appellant voluntarily dismissed The Hartford

Financial Services Group, Inc., and HBN as defendants, and dismissed the conspiracy

and declaratory judgment on bonds claims.

       {¶ 18} On March 17, 2017, appellant filed a motion for partial summary judgment

on its ejectment claim.

       {¶ 19} On March 24, 2017, the trial court issued a judgment granting, in part, the

Lucas County defendants’ motion for judgment on the pleadings. The court found the

Lucas County defendants were immune from suit with respect to the tortious interference

with business relations claim, as well as any damage claim associated with the

trespassing and ejectment claims. In addition, the court dismissed the claim for

injunction, and dismissed all claims against the County of Lucas.




6.
       {¶ 20} On April 21, 2017, the Lucas County defendants filed a motion for

summary judgment with respect to appellant’s remaining claims of trespass, unjust

enrichment, violation of constitutional rights, ejectment and breach of contract.

       {¶ 21} On May 19, 2017, appellant voluntarily dismissed its unjust enrichment

claim, violation of constitutional rights claim and breach of contract claim.

       {¶ 22} On June 21, 2017, appellant filed a motion to amend pleadings to conform

to the evidence. Appellant noted “Gulfstream has asserted an interest in the sanitary line

and has joined the claims of the Lucas County Defendants that an easement by estoppel

exists across [appellant’s] property.” Appellant sought to amend the pleadings to

“impute [appellant’s] claims against the Lucas County Defendants to Gulfstream as

well.” And, “any order to ejectment and/or writ of possession issued by the Court

regarding the sanitary sewer line should apply with equal force to both the Lucas County

Defendants and Gulfstream.” Appellant’s motion to amend pleadings was granted.

       {¶ 23} On June 26, 2017, the trial court issued a judgment granting the Lucas

County defendants’ motion for summary judgment with respect to appellant’s trespass

and ejectment claims, and denying appellant’s motion for partial summary judgment on

its ejectment claim.

       {¶ 24} The court found appellant “entered into an enforceable agreement with

Watermark to grant Watermark an easement for the purpose of installing a sewer line on

its property and that agreement has not been breached * * * [and] the terms [of the

agreement] are clear and unambiguous.” The court also stated “[t]he term ‘no charge’ [in




7.
the agreement] clearly means that plaintiff will not be charged for tapping into the force

main * * *. The court reads this provision to mean that any charges were to be paid by

Watermark, and now must be paid by Gulfstream * * *.” The court further found

appellant “has failed to establish that defendants do not have a legal right to have the

sewer line on the property.”

       {¶ 25} The court, in order to fulfill the terms of the contract, ordered appellant “to

specifically perform its contracted duty to provide an easement for the sewer.” The court

observed “Gulfstream has raised the defense that plaintiff ‘entered into an agreement

permitting and consenting to the construction of the sanitary sewer across its property,

which agreement constitutes * * * a de facto easement.’” This defense was treated as a

counterclaim, pursuant to Civ.R. 8(C), as the issue had been briefed by the parties, and

justice so required.

       {¶ 26} Appellant appealed and Gulfstream filed a cross-appeal.

                                          Analysis

                         Appellant’s First Assignment of Error

       {¶ 27} At the outset we note that appellant’s only remaining causes of action are

for trespass, where appellant pursues removal or severance of the force main, and

ejectment, where appellant seeks a writ of possession and removal of the force main.

       {¶ 28} Appellant contends the trial court erred by entering summary judgment for

the Lucas County defendants and Gulfstream. Appellant argues “there can be no dispute

that neither Defendant Gulfstream nor Lucas County have any express easement on, or




8.
right to use, Plaintiff’s property.” Appellant also asserts the September 2006 letter

agreement cannot act as a conveyance of easement rights as it did not conform to the

requirements of R.C. 5301.01. Appellant further contends it was denied the benefit of the

bargain in 2006, so no easement or right to use or possess its property was ever conveyed.

                               Summary Judgment Standard

       {¶ 29} We review a trial court’s summary judgment decision on a de novo basis.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Accordingly, we undertake our own independent examination of the record and make our

own decision as to whether the moving parties are entitled to summary judgment. Dupler

v. Mansfield Journal, 64 Ohio St.2d 116, 119-120, 413 N.E.2d 1187 (1980).

       {¶ 30} Pursuant to Civ.R. 56, the moving party bears the initial burden of

informing the trial court of the basis for the motion and presenting proper evidence in

support thereof. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). If the

movant satisfies its initial burden, the burden then shifts to the nonmovant to present

specific facts demonstrating the existence of a genuine issue. Id. The nonmovant cannot

avoid summary judgment by submitting an unsupported, self-serving affidavit. Bank of

New York v. Barclay, 10th Dist. Franklin No. 03AP-844, 2004-Ohio-1217, ¶ 13.

       {¶ 31} “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact * * * show that there is no genuine issue as to




9.
any material fact and that the moving party is entitled to judgment as a matter of law.”

Civ.R. 56(C).

                                  Lucas County Defendants

       {¶ 32} In the trespass claim set forth in the complaint, appellant alleged “Lucas

County should have ensured that all easements and other permissions necessary for the

sanitary sewer construction at issue were obtained and perfected before allowing it to be

utilized, and [Lucas County] failed in its statutory obligations * * *.” Appellant further

alleged the defendants “have intentionally, or at least negligently, interred with

[appellant’s] property rights and are committing regular and continuing trespasses upon

[appellant’s] real property by pumping sewage at least twice weekly through [appellant’s]

property.”

       {¶ 33} In appellant’s ejectment claim, appellant alleged the defendants “are in

possession of the subject real property by virtue of their--at minimum--tacit acceptance,

operation, and maintenance of the sewer lines traversing [appellant’s] property.”

Appellant further alleged the “defendants’ conduct has acted to unlawfully deprive

[appellant] of his right to possess its property, including specifically the area effected by

the sanitary sewer line(s) that is the subject of this lawsuit.”

       {¶ 34} In their motion for summary judgment, Lucas County defendants contend

in order for appellant “[t]o establish its trespass and/or ejectment claims, there must be

proof that one or more of the Lucas County defendants, ‘without authority or privilege,

physically invaded or unlawfully entered its property.’” Lucas County defendants assert




10.
“[t]he undisputed facts * * * demonstrate that there is an express agreement for an

easement specifically for the installation of the sewer line * * * and that, at a minimum,

an easement by estoppel exists regarding the construction and use of the sewer line * * *

so that, to the extent that the Lucas County defendants have entered [appellant’s]

property, they have had permission to do so.”

       {¶ 35} Lucas County defendants rely on the September 2006 letter agreement

between appellant and Ankney for an easement for the sewer line on appellant’s property,

and maintain they have entered appellant’s property pursuant to this easement. Lucas

County defendants also submit that all parties have proceeded under appellant’s

representations that an easement existed. Lucas County defendants observe appellant

sent the Engineer a letter “informing him of the consent it had given the developer for an

easement on its property for the sewer line in question.” Thus, appellant recognized that

a sewer line was being constructed on its property, and acknowledged the agreement with

Ankney for an easement. Lucas County defendants note the Engineer will allow

appellant to have two taps into the force main after appellant determines how it will

develop its property.

                                         Trespass

       {¶ 36} “‘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 * * *.’” (Citation omitted.) Apel v.

Katz, 83 Ohio St.3d 11, 19, 697 N.E.2d 600 (1998). “[A] cause of action in trespass will




11.
not lie when the purported trespasser holds an easement to the property on which he or

she is purportedly trespassing.” Bayes v. Toledo Edison Co., 6th Dist. Lucas Nos. L-03-

1177, L-03-1194, 2004-Ohio-5752, ¶ 68.

          {¶ 37} An easement is an interest in the land of another, which entitles the

easement holder to limited use of that land. Id. An express easement must be part of a

deed or lease or other conveyance and must be recorded in conformity with R.C. 5301.01.

Schmiehausen v. Zimmerman, 6th Dist. Ottawa No. OT-03-027, 2004-Ohio-3148, ¶ 20.

“An easement by estoppel may be found when an owner of property misleads or causes

another in any way to change the other’s position to his or her prejudice.” Id. at ¶ 21.

“‘Where an owner of land, without objection, permits another to expend money in

reliance upon a supposed easement, when in justice and equity the former ought to have

disclaimed his conflicting rights, he is estopped to deny the easement.’” (Citation

omitted.) Id.

          {¶ 38} Here, our de novo review of the record shows there is no evidence of an

express easement between appellant and any party with respect to the force main.

However, the evidence in the record does support a finding that an easement by estoppel

exists.

          {¶ 39} The record reveals it is undisputed that appellant and Ankney entered into

an agreement in September 2006, where appellant acknowledged an easement was

needed to install the force main and Ankney was granted permission to go on appellant’s

property to install the force main so long as appellant could tap into the force main at no




12.
cost. Ankney proceeded to have the force main installed on appellant’s property, without

objection from appellant, and at no cost to appellant. The force main has been in use

since 2007, and has been operated and maintained by the Lucas County defendants.

       {¶ 40} While appellant asserts the agreement was breached because Ankney and

his contractor, Gill, knew at the time the force main was installed on appellant’s property

that Lucas County would not allow any taps into the force main, there is no evidence in

the record to support this assertion, save for Robon’s self-serving, uncorroborated

statements which are not sufficient to demonstrate a material issue of fact precluding

summary judgment. In fact, the evidence does show that appellant relied on the validity

of the agreement, as Robon advised the Engineer of the agreement with Ankney, and

informed the Engineer that “[m]y understanding is that this force main and pumping

station are going to be dedicated to the county and we want you to be aware that we

expect a free tap in the future.” While the Engineer initially balked at Robon’s demand,

the Engineer has agreed to allow two taps into the force main once appellant has

determined how it will develop its property.

       {¶ 41} Appellant also argues the agreement was breached because it was not

provided with two taps when the force main was installed “which served as the basis for

the September 1, 2006 Letter Agreement.” However, upon review, we find there is no

time limit or time frame set forth in the agreement for appellant to tap the force main.

Therefore, this is not evidence that the agreement was breached.




13.
       {¶ 42} Based upon the foregoing evidence and the record as a whole, we find the

September 2006 agreement is valid, has not been breached and is enforceable. We

further find an easement by estoppel exists, in favor of the Lucas County defendants, who

have operated and maintained the force main, and who changed their position regarding

taps into the force main and have allowed two taps for appellant. Thus, the Lucas County

defendants have had permission to use and maintain the force main on appellant’s

property and have committed no trespass. Accordingly, the trial court properly found the

Lucas County defendants were entitled to judgment on appellant’s trespass claim.

                                           Ejectment

       {¶ 43} An action in ejectment is the proper remedy against one who is wrongfully

in possession of real property. Turnbull v. City of Xenia, 80 Ohio App. 389, 392, 69

N.E.2d 378 (2d Dist.1946). R.C. 5303.03, which codifies the common law action in

ejectment, states in pertinent part:

              In an action for the recovery of real property, it is sufficient if the

       plaintiff states in his petition that he has a legal estate therein and is entitled

       to the possession thereof * * * and that the defendant unlawfully keeps him

       out of the possession.

       {¶ 44} Here, for the reasons set forth above, we find the Lucas County defendants

have committed no trespass on appellant’s property. Therefore, we find the Lucas

County defendants are not wrongfully in possession of appellant’s property or unlawfully




14.
keeping appellant out of possession. Accordingly, the trial court properly found the

Lucas County defendants were entitled to judgment on appellant’s ejectment claim.

                                         Gulfstream

       {¶ 45} Although appellant argues the trial court entered summary judgment in

favor of Gulfstream, the court did not do so. Rather, the court treated Gulfstream’s

defense, that the 2006 letter agreement constituted a de facto easement, as a counterclaim

pursuant to Civ.R. 8, and ordered appellant “to specifically perform its contracted duty to

provide an easement for the sewer” to Gulfstream to fulfill the terms of the agreement.

                                           Civ.R. 8

       {¶ 46} Civ.R. 8(C) provides “[w]hen a party has mistakenly designated a defense

as a counterclaim or a counterclaim as a defense, the court, if justice so requires, shall

treat the pleading as if there had been a proper designation.”

                                    Specific Performance

       {¶ 47} “Specific performance of contracts is a matter resting in the sound

discretion of the court, not arbitrary, but controlled by principles of equity, on full

consideration of the circumstances of each particular case.” Spengler v. Sonnenberg, 88

Ohio St. 192, 203, 102 N.E. 737 (1913).

       {¶ 48} A reviewing court will not disturb a lower court’s action in granting or

denying specific performance unless it appears from the record there has been an abuse of

discretion. Sandusky Properties v. Aveni, 15 Ohio St.3d 273, 275, 473 N.E.2d 798

(1984). An abuse of discretion is “more than an error of law or judgment; it implies that




15.
the court's attitude is unreasonable, arbitrary or unconscionable.” Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

      {¶ 49} The following factors are generally prerequisites to the award of specific

performance:

               “‘The contract must be concluded, certain, unambiguous, mutual,

      and upon a valuable consideration; it must be perfectly fair in all its parts;

      free from any misrepresentation or misapprehension, fraud or mistake,

      imposition or surprise; not an unconscionable or hard bargain; and its

      performance not oppressive upon the defendant; and finally, it must be

      capable of specific execution through a decree of the court.’” (Citation

      omitted.) Fine v. U.S. Erie Islands Co., 6th Dist. Ottawa No. OT-07-048,

      2009-Ohio-1531, ¶ 30.

      {¶ 50} Here, the record shows appellant and Ankney entered into an agreement in

2006, where appellant acknowledged an easement was needed to install the force main,

and appellant granted Ankney permission to go on its property for the installation,

provided there was no charge for appellant to tap into the force main. At the time the

agreement was entered, Ankney was AE’s managing member and AE acted as the

manager of Watermark, the owner of the subdivision property. Currently, WSLLC is the

owner of the subdivision property, Gulfstream is the subdivision’s developer and Ankney

is the managing member of Gulfstream. Gulfstream has repeatedly represented that it

will honor the commitment made by Ankney.




16.
         {¶ 51} Upon review, the record demonstrates, in accordance with the agreement,

Ankney was permitted to and did go on appellant’s property to have the force main

installed, and that appellant can tap into the force main at no charge after it determines

how it will develop its property. However, appellant has refused to grant Gulfstream an

easement.

         {¶ 52} The trial court found the 2006 agreement was enforceable and its terms

were clear and unambiguous. The court ordered appellant to specifically perform the

agreement and provide Gulfstream with an easement.

         {¶ 53} Upon review, we find the agreement is valid and its terms certain, clear and

fair. We also find Ankney performed under the agreement, but appellant did not. Thus,

we find the trial court did not abuse its discretion by ordering appellant to specifically

perform its obligation under the agreement and provide Gulfstream with an easement.

         {¶ 54} In light of the foregoing, appellant’s first assignment of error is not well-

taken.

                          Appellant’s Second Assignment of Error

         {¶ 55} Appellant argued it was entitled to summary judgment against the Lucas

County defendants and Gulfstream on its ejectment claim. For the reasons set forth

above, we find neither Gulfstream nor the Lucas County defendants have committed a

trespass on appellant’s property. Therefore, neither Gulfstream nor the Lucas County

defendants are wrongfully in possession of appellant’s property or unlawfully keeping

appellant out of possession. Accordingly, the trial court properly found appellant’s




17.
ejectment claim fails. In light of the foregoing, appellant’s second assignment of error is

not well-taken.

                    Gulfstream’s First Cross-Assignments of Error

       {¶ 56} Gulfstream argues the trial court erred in granting appellant’s Civ.R. 15(B)

pretrial motion to amend the pleadings to conform to the evidence without affording

Gulfstream the opportunity to oppose the motion.

       {¶ 57} Civ.R. 15(B) provides in relevant part:

              When issues not raised by the pleadings are tried by express or

       implied consent of the parties, they shall be treated in all respects as if they

       had been raised in the pleadings. Such amendment of the pleadings as may

       be necessary to cause them to conform to the evidence and to raise these

       issues may be made upon motion of any party at any time, even after

       judgment.

       {¶ 58} Civ.R 6(C) states in relevant part:

              Unless otherwise provided by these rules, by local rule, or by order

       of the court, a response to a written motion, other than a motion that may be

       heard ex parte, shall be served within fourteen days after service of the

       motion.




18.
       {¶ 59} Likewise, Loc.R. 5.04(D) of the Court of Common Pleas of Lucas County,

General Division, provides: “An opposing party may serve and file a memorandum in

opposition to any motion. The filing shall be made within 14 days after service.”

       {¶ 60} The premise underlying Civ.R. 6(C) and the local rule is that the party

opposing the motion must have sufficient notice and the opportunity to respond in order

to avoid undue prejudice. See Ohio Metal Servs., LLC v. All-In Metals, LLC, 9th Dist.

Summit Nos. 26240, 26625, 2013-Ohio-2174, ¶ 26.

       {¶ 61} Here, the record shows that on June 21, 2017, appellant filed its motion to

amend pleadings to reflect that “if the court were to determine that Gulfstream possessed

an ownership interest in the sanitary line - that [appellant’s] ejectment claim should apply

with equal force to Gulfstream * * * as the successor in interest to the original developer

* * *.” And, “[t]o date Gulfstream has not asserted that it is the proper owner of the

sanitary line * * * [h]owever, Gulfstream has asserted an interest in the sanitary line * * *

[claiming] an easement by estoppel exists.”

       {¶ 62} On June 23, 2017, the trial court granted appellant’s motion to amend “to

add * * * Gulfstream * * * as an additional defendant to which plaintiff’s ejectment claim

applies.”

       {¶ 63} Upon review, we find the trial court ruled on appellant’s motion two days

after the motion was filed, which clearly did not allow Gulfstream the time allowed by

rule to file an opposition to the motion. However, Gulfstream had already intervened as a

defendant in the action and defended itself, including filing an answer to appellant’s




19.
complaint and denying appellant’s claims. Thus, although Gulfstream was not given the

opportunity to object to appellant’s motion to amend, we find that Gulfstream was not

prejudiced. Accordingly, Gulfstream’s first cross-assignment of error is not well-taken.

                   Gulfstream’s Second Cross-Assignments of Error

       {¶ 64} Gulfstream contends the trial court erred in issuing an advisory

determination that Gulfstream would, in the future, be responsible for the payment of any

and all tap fees to be prospectively charged by Lucas County for appellant’s connection

to the sanitary sewer line. Gulfstream argues “[i]t has not been alleged and has never

been admitted that [WSLLC] has any ownership interest in or control of [Gulfstream], or

that [Gulfstream] has any ownership interest in or control over [WSLLC]. Gulfstream

further contends it and WSLLC are “two entities [which] are factually and legally distinct

* * * [and] [n]either one is a predecessor or successor to the other.”

       {¶ 65} The trial court, in its opinion, found the terms of the 2006 agreement

between appellant and Ankney were clear and unambiguous, and the term “‘no charge’

clearly means [appellant] will not be charged for tapping into the force main” and “any

charges were to be paid by Watermark, and now must be paid by Gulfstream.”

       {¶ 66} The standard of review for contract issues is whether the trial court erred as

a matter of law. Continental W. Condo. Unit Owners Assn. v. Howard E. Ferguson, Inc.,

74 Ohio St.3d 501, 502, 660 N.E.2d 431 (1996). Thus, we must decide whether the trial

court’s judgment “is based on an erroneous standard or a misconstruction of the law.” Id.




20.
       {¶ 67} Construction of a written agreement is a matter of law for the court.

Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1978),

paragraph one of the syllabus. A contract must be viewed as a whole, and the intent of

the parties is reflected by the language used. Kelly v. Med. Life Ins. Co., 31 Ohio St.3d

130, 509 N.E.2d 411 (1987), paragraph one of the syllabus. The words in a contract are

given their plain and ordinary meaning unless “manifest absurdity results, or unless some

other meaning is clearly evidenced from the face or overall contents of the instrument.”

Alexander at paragraph two of the syllabus. In addition, the court must give effect to the

words used in the contract, and not delete or insert words. Cleveland Elec. Illum. Co. v.

Cleveland, 37 Ohio St.3d 50, 53, 524 N.E.2d 441 (1988).

       {¶ 68} As set forth above, we found the agreement is valid and its terms clear. As

such, the agreement must be enforced and not interpreted. The agreement provides that

Ankney was granted permission by appellant to install the force main on appellant’s

property, provided there was no charge for appellant to tap into the force main. While

argument was made that “no charge” meant the developer’s fees will be waived and any

charges due to Lucas County will still be due by appellant, that language was not used in

the agreement, and cannot be read into the agreement now. Thus, the trial court did not

err when it found “‘no charge’ clearly means [appellant] will not be charged for tapping

into the force main.”

       {¶ 69} Moreover, the trial court did not err in finding that “any charges were to be

paid by Watermark, and now must be paid by Gulfstream.” The record shows Ankney




21.
entered into the agreement when he was the managing member of AE, which acted as the

manager of Watermark, the subdivision property owner. Now, Ankney is the managing

member of Gulfstream, the developer of the subdivision, and Gulfstream has consistently

confirmed that it will honor the commitment made by Ankney in the agreement. Since it

has been determined, as a matter of law, that no charge to tap means no charge to

appellant whatsoever, we find the trial court did not err by ordering Gulfstream to pay

any and all charges for appellant to tap into the force main. Accordingly, Gulfstream’s

second cross-assignment of error is not well-taken.

       {¶ 70} The judgment of the Lucas County Court of Common Pleas is affirmed.

Appellant and Gulfstream are ordered to split the costs of this appeal, pursuant to App.R.

24.

                                                                       Judgment affirmed.


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



Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, 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/.




22.
