[Cite as Davis v. Widman, 184 Ohio App.3d 705, 2009-Ohio-5430.]




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




DAVIS,

        APPELLANT,                                                CASE NO. 13-09-20

        v.

WIDMAN ET AL.,                                                    OPINION

        APPELLEES.




                 Appeal from Seneca County Common Pleas Court
                           Trial Court No. 09-CV-0197

                                    Judgment Affirmed

                         Date of Decision:        October 13, 2009




APPEARANCES:

        Charles R. Hall Jr., for appellant.

        James W. Fruth, for appellees.



        PRESTON, Presiding Judge.
Case No. 13-09-20



        {¶1} Plaintiff-appellant, Jennifer Davis, appeals the judgment of the

Seneca County Court of Common Pleas dismissing her complaint against

defendants-appellees, Christopher and Joanne1 Widman.                       For the reasons that

follow, we affirm.

        {¶2} On April 14, 2009, Davis filed a complaint that essentially alleged

that the Widmans’ undersized driveway-drainage tile caused flooding on her

property. Davis attached several items to the complaint, including a letter, a

topographical map, an affidavit, and pictures demonstrating the alleged damage.

On that same day, Davis also filed a motion for a temporary restraining order

asking the trial court to order (1) replacement or repair of the driveway culvert, (2)

the payment of the costs of the legal action, attorney fees, and expenses related to

replacing the driveway culvert, and (3) all other relief deemed equitable. The

motion was accompanied by the aforementioned exhibits.

        {¶3} On April 15, 2009, the trial court overruled Davis’s motion for a

temporary restraining order and set a preliminary-injunction hearing for May 18,

2009.

        {¶4} On April 22, 2009, the Widmans filed a 12(B)(6) motion to dismiss

for failure to state a claim upon which relief can be granted. The trial court



1
 Defendant-appellee’s name appears as both “Joan” and “Joanne” throughout the record. We use the latter
spelling, since counsel for the Widmans states that that is the correct spelling.


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scheduled the motion hearing for May 18, 2009, just prior to the preliminary-

injunction hearing.

      {¶5} On May 19, 2009, the trial court filed its judgment entry dismissing

Davis’s complaint.

      {¶6} On May 27, 2009, Davis filed this present appeal.           Davis now

appeals raising three assignments of error for our review. We have elected to

address her assignments of error out of the order they appear in her brief and to

combine them where appropriate.

                       ASSIGNMENT OF ERROR NO. III

             The trial court abused its discretion by not providing the
      appellant with notice that it converted the motion to dismiss to the
      motion for summary judgment.

                       ASSIGNMENT OF ERROR NO. II

             The trial court abused its discretion by granting the appellees
      [sic] motion to dismiss.

      {¶7} In her third assignment of error, Davis argues that the trial court

erred by not providing herwith notice that it was converting the motion to dismiss

into a motion for summary judgment. The Widmans argue that Davis had notice

that the court was converting the motion, since they agreed to the court’s viewing

the scene before ruling on the motion.

      {¶8} In her second assignment of error, Davis argues that the trial court

abused its discretion by relying upon allegations outside the face of the complaint


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since it conducted a court view of the location in question. Furthermore, Davis

points out that the trial court inappropriately reviewed the file when granting the

motion to dismiss. The Widmans argue, however, that the complaint is barred by

the four-year statute of limitations found in R.C. 2305.09, because some of the

pictures Davis attached to her complaint were dated more than four years prior to

the filing of the complaint.

       {¶9} Although we conclude that the trial court erred when it relied upon

evidence that was outside of the complaint in granting the Widmans’ Civ.R.

12(B)(6) motion, we find the trial court’s error harmless since Davis’s complaint

should have been dismissed as a matter of law. Thus, Davis has suffered no

prejudice from the trial court’s error, and we must affirm the trial court’s

judgment.

       {¶10} Civ.R. 12(B) provides:

              Every defense, in law or fact, to a claim for relief in any
       pleading, whether a claim, counterclaim, cross-claim, or third-party
       claim, shall be asserted in the responsive pleading thereto if one is
       required, except that the following defenses may at the option of the
       pleader be made by motion: * * * (6) failure to state a claim upon
       which relief can be granted * * *. When a motion to dismiss for
       failure to state a claim upon which relief can be granted presents
       matters outside the pleading and such matters are not excluded by
       the court, the motion shall be treated as a motion for summary
       judgment and disposed of as provided in Rule 56. Provided
       however, that the court shall consider only such matters outside the
       pleadings as are specifically enumerated in Rule 56. All parties shall
       be given reasonable opportunity to present all materials made
       pertinent to such a motion by Rule 56.


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“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. (1992), 65 Ohio St.3d 545, 548, 605 N.E.2d 378,

citing Assn. for Defense of Washington Local School Dist. v. Kiger (1989), 42

Ohio St.3d 116, 117, 537 N.E.2d 1292. For that reason, a trial court may not rely

upon evidence or allegations outside the complaint when ruling on a Civ.R.

12(B)(6) motion. State ex rel. Fuqua v. Alexander (1997), 79 Ohio St.3d 206, 207,

680 N.E.2d 985. To sustain a Civ.R. 12(B)(6) dismissal, “it must appear beyond

doubt that the plaintiff can prove no set of facts in support of the claim that would

entitle the plaintiff to relief.” LeRoy v. Allen, Yurasek, & Merklin, 114 Ohio St.3d

323, 2007-Ohio-3608, 872 N.E.2d 254, ¶ 14, citing Doe v. Archdiocese of

Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11.

Additionally, the complaint’s allegations must be construed as true, and any

reasonable inferences must be construed in the nonmoving party’s favor. Id., citing

Maitland v. Ford Motor Co., 103 Ohio St.3d 463, 2004-Ohio-5717, 816 N.E.2d

1061, ¶11; Kenty v. Transamerica Premium Ins. Co. (1995), 72 Ohio St.3d 415,

418, 650 N.E.2d 863.

       {¶11} When reviewing a Civ.R. 12(B)(6) decision, this court must

determine whether the complaint’s allegations constitute a statement of a claim

under Civ.R. 8(A). Keenan v. Adecco Emp. Servs., Inc., 3d Dist. No. 1-06-10,


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Case No. 13-09-20


2006-Ohio-3633, ¶ 7. “All that the civil rules require is a short, plain statement of

the claim that will give the defendant fair notice of the plaintiff’s claim and the

grounds upon which it is based.” Patrick v. Wertman (1996), 113 Ohio App.3d

713, 716, 681 N.E.2d 1385, quoting Kelley v. E. Cleveland (Oct. 28, 1982), 8th

Dist. No. 44448. See also Civ.R. 8(A)(1). When filing a claim pursuant to Civ.R.

8(A), “[a] party is not required to ‘plead the legal theory of recovery’”;

furthermore, “a pleader is not bound by any particular theory of a claim but that

the facts of the claim as developed by the proof establish the right to relief.”

Illinois Controls, Inc. v. Langham (1994), 70 Ohio St.3d 512, 526, 639 N.E.2d

771. Indeed, “that each element of [a] cause of action was not set forth in the

complaint with crystalline specificity” does not render it fatally defective and

subject to dismissal. Border City S. & L. Assn. v. Moan (1984), 15 Ohio St.3d 65,

66, 472 N.E.2d 350. See also, Parks v. Parks (Mar. 5, 1998), 3d Dist No. 1-97-60,

at *2. However, “‘the complaint must contain either direct allegations on every

material point necessary to sustain a recovery on any legal theory, even though it

may not be the theory suggested or intended by the pleader, or contain allegations

from which an inference fairly may be drawn that evidence on these material

points will be introduced at trial.’” Fancher v. Fancher (1982), 8 Ohio App.3d 79,

83, 455 N.E.2d 1344, quoting 5 Wright & Miller, Federal Practice & Procedure:

Civil (1969), at 120-123, Section 1216.



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       {¶12} This court reviews de novo a trial court’s decision to grant or deny a

Civ.R. 12(B)(6) motion. RMW Ventures, L.L.C. v. Stover Family Invest.,

L.L.C., 161 Ohio App.3d 819, 2005-Ohio-3226, 832 N.E.2d 118, ¶ 8, citing Hunt

v. Marksman Prod. (1995), 101 Ohio App.3d 760, 762, 656 N.E.2d 726. This

court may substitute, without deference, its judgment for that of the trial court

when reviewing de novo. Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership

(1992), 78 Ohio App.3d 340, 346, 604 N.E.2d 808.

       {¶13} The trial court’s judgment entry granting the Civ.R. 12(B)(6) motion

to dismiss provides, in its entirety:

              This matter came to be heard upon Defendant’s [sic] Motion
       to Dismiss. The Court met with counsel in chambers and then
       counsel spoke with their clients. Ultimately, all agreed the Court
       should drive out to the location in question. The culvert is
       essentially a tile under the lane with depressions cut out on either
       end and lined with stone. It is clear, upon examination, the elevation
       along the lane is lower than either side. The water has nowhere to
       go. The corn stubble does not point one way or the other.
       Therefore, having reviewed the file, the law and the scene, this Court
       must grant the Motion to Dismiss.

               It is therefore, ORDERED, ADJUDGED AND DECREED
       that the Defendant’s [sic] Motion to Dismiss is GRANTED.

              Costs to Plaintiff.

       {¶14} Reviewing the trial court’s judgment entry, it is evident that (1) the

trial court never converted the motion to dismiss to a motion for summary

judgment and (2) the trial court considered evidence outside the face of the

complaint. With regard to the first issue, the trial court plainly stated that it was


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Case No. 13-09-20


ruling on a motion to dismiss several times in its judgment entry. For purposes of

appellate review, we presume that the trial court did what it said it did. Figel v.

Figel, 3d Dist. No. 10-08-14, 2009-Ohio-1659, ¶ 11, citing Betz v. Timken Mercy

Med. Ctr. (1994), 96 Ohio App.3d 211, 216, 644 N.E.2d 1058. Therefore, the trial

court was not required to give Davis notice that it converted the motion to dismiss

into a motion for summary judgment when it never, in fact, converted the motion

in the first place. For this reason, Davis’s third assignment of error lacks merit.

       {¶15} With regard to the second issue, the trial court stated that it

considered the “file” and the “scene” when it granted the motion to dismiss. The

“file” contains exhibits, including a letter, a topographical map, an affidavit from

Davis, and photographs.       Therefore, the trial court, according to its own

statements, considered evidence outside the face of the complaint, which is

inappropriate for Civ.R. 12(B)(6) purposes. Alexander, 79 Ohio St.3d at 207. The

trial court’s viewing of the scene is also problematic. The trial court made several

findings of fact based upon its view of the scene; namely that “the elevation along

the lane is lower than either side. The water has nowhere to go. The corn stubble

does not point one way or the other.” The trial court’s viewing that scene and its

related factual findings are clearly evidence outside the face of the complaint,

which, again, is inappropriate for Civ.R. 12(B)(6) purposes. Alexander, 79 Ohio

St.3d at 207. Therefore, we agree with Davis that the trial court erred by relying



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upon evidence outside the face of the complaint when ruling on the motion to

dismiss.

       {¶16} That the court erred procedurally, however, is not the end of our

analysis. As previously stated, we review a trial court’s Civ.R. 12(B)(6) ruling de

novo to determine whether the dismissal was appropriate. RMW Ventures, L.L.C.,

2005-Ohio-3226, at ¶ 8, citing Hunt, 101 Ohio App.3d at 762. Furthermore, R.C.

2309.59 provides:

       If the reviewing court determines and certifies that, in its opinion,
       substantial justice has been done to the party complaining as shown
       by the record, all alleged errors or defects occurring at the trial shall
       be deemed not prejudicial to the party complaining and shall be
       disregarded, and the final judgment or decree under review shall be
       affirmed * * *

See also Civ.R. 61. Similarly, “[a] judgment by the trial court which is correct,

but for a different reason, will be affirmed on appeal as there is no prejudice to the

appellant.” Advantage Bank v. Waldo Pub, L.L.C., 3d Dist. No. 9-08-67, 2009-

Ohio-2816, ¶ 46. A trial court’s reliance upon evidence outside the pleadings for

purposes of a Civ.R. 12(B)(6) ruling constitutes harmless error when the

complaint should have been dismissed as a matter of law regardless of the

inappropriately considered evidence. Shamansky v. Massachusetts Fin. Serv. Co.

(1998), 127 Ohio App.3d 400, 404, 713 N.E.2d 47 (erroneous consideration of

matters outside of pleadings was harmless error since appellee had no legal duty to

notify shareholders of uncashed dividend checks); Smith v. Asbell, 4th Dist. No.


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03CA2897, 2005-Ohio-2310, ¶45, 47 (erroneous consideration of matters outside

of pleadings was harmless error since it was clear from the face of the complaint

that the claim was barred by the applicable statute of limitations).

       {¶17} Davis’s complaint alleged, in its entirety:

            Now comes the Plaintiff, Jennifer Davis, by and through
       counsel, and for her complaint against the Defendant states the
       following:

             1.       The Plaintiff resides at 553 West Township Road 132
       Tiffin, Ohio.
             2.       The Plaintiff lives next to the property owned by
       Christopher and Joan Widman at 561 West Township Road 132,
       Tiffin, Ohio.
             3.       The Widmans have a driveway that runs next to her
       property which has a drainage tile too small to allow proper drainage
       which causes flooding on her property.
             4.       The natural surface water drains from across the road
       to behind her property to the drainage tile under the Widmans’
       driveway. (Exhibit B).
             5.       Lynn Eberhard from the Seneca Soil and Water
       Conversation District has identified the Widmans’ driveway culvert
       is too small. (Exhibit A).
             6.       The culvert should be a twenty-four inch round tile or
       equivalent elliptical tile.
             7.       That the driveway has become higher as time has past
       as more stone was placed on the top of it.
             8.       The Plaintiff has lived at my property for seventeen
       years, but the flooding has been getting progressively worse until the
       water has backed up into my building and has nearly reached up to
       my home. (Exhibit C).
             9.       The Plaintiff has tried three times in the last three
       years to resolve this matter with the Widmans including offering to
       pay for the replacement of the culvert.
             10.      The Plaintiff caused to have a letter sent to Christopher
       Widman in a last attempt to resolve this matter without legal action
       on March 4, 2009.


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             11.     The Widmans have refused and have ignored any
       attempt to resolve this problem.
             12.     The Plaintiff is fearful that as the spring rains come
       that the damage to her property will increase.
             13.     The Plaintiff will suffer immediate and irreparable
       injury, loss of personal property and damages before Christopher
       and Joan Widman can be heard by the court.

            Wherefore, the Court should grant a Temporary Restraining
       Order and Preliminary Injunction causing Christopher and Joan
       Widman to replace or repair the driveway culvert. Further the Court
       should order the Court should order [sic] Christopher and Joan
       Widman to pay the costs of this action, to pay attorneys fees, to pay
       all expenses related to replacing or repairing the driveway culvert,
       and all other relief deemed equitable.

       {¶18} The Widmans argue that the complaint was properly dismissed

because the cause of action, if any, is barred by the four-year statute of limitations

found in R.C. 2305.09. In support of this argument, the Widmans point out that

some of the photographs Davis attached to her complaint were taken more than

four years prior to the filing of her complaint. The Widmans’ argument lacks

merit. A Civ.R. 12(B)(6) motion to dismiss can be granted on the basis of the

applicable statute of limitations only when it is clear from the face of the complaint

that the action is time barred. Dibert v. Watson, 3d Dist. No. 8-09-02, 2009-Ohio-

2098, ¶ 10, citing Archdiocese of Cincinnati, 2006-Ohio-2625, at ¶ 10, citing

Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376, 433 N.E.2d

147. See also Love v. Port Clinton (1988), 37 Ohio St.3d 98, 524 N.E.2d 166;

Vandemark v. Southland Corp. (1988), 38 Ohio St.3d 1, 7, 525 N.E .2d 1374;



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Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55, 320 N.E.2d 668. On

the other hand, “accounts” and “written instruments” (usually contracts) that are

attached to a complaint are incorporated into the complaint pursuant to Civ.R.

10(C) and (D), and the trial court may consider them for purposes of a Civ.R.

12(B)(6) motion.    Keenan, 2006-Ohio-3633, at ¶ 8-9, citing Slife v. Kundtz

Properties, Inc. (1974), 40 Ohio App.2d 179, 185-186, 318 N.E.2d 557; Civ.R.

10(C) and (D). Photographs are not “account[s]” or “written instruments” that are

incorporated into the complaint pursuant to Civ.R. 10(C) and (D); and therefore,

the Widmans’ reliance upon these for dismissal is inappropriate. See, e.g., Resch v.

Roy, 9th Dist. No. 24481, 2009-Ohio-2458 (trial court erred by relying upon

attached copy of a partial e-mail, copy of document from Internet search, and an

affidavit). With respect to the cause of action’s accrual and the filing of the

complaint, the complaint alleged that Davis has lived at the property for 17 years,

but that the flooding has been getting worse over time. Davis further alleged that

she had attempted to resolve this matter short of legal action within the last three

years. No other dates are provided in the complaint. Under these circumstances,

we cannot say that it is clear from the face of the complaint that Davis’s complaint

is time-barred by the applicable four-year statute of limitations.       Therefore,

Davis’s complaint should not have been dismissed for this reason.




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       {¶19} That being said, Davis’s complaint should have been dismissed for

failure to state a claim upon which relief can be granted. Where damage to one

property owner by an adjacent property owner is caused by surface (run-off)

water, Ohio has adopted a reasonable-use rule. Peters v. Angel’s Path, L.L.C., 6th

Dist. No. E-06-059, 2007-Ohio-7103, ¶ 33, citing McGlashan v. Spade Rockledge

Terrace Condo Dev. Corp. (1980), 62 Ohio St.2d 55, 60, 402 N.E.2d 1196. The

reasonable-use rule set forth by the Ohio Supreme Court provides:

       [A] possessor of land is not unqualifiedly privileged to deal with
       surface water as he pleases, nor absolutely prohibited from
       interfering with the natural flow of surface waters to the detriment of
       others. Each possessor is legally privileged to make a reasonable use
       of his land, even though the flow of surface waters is altered thereby
       and causes some harm to others, and the possessor incurs liability
       only when his harmful interference with the flow of surface water is
       unreasonable.

McGlashan, 62 Ohio St.2d 55, syllabus. The reasonableness of the interference

with the natural flow of surface waters is determined by the trier of fact, guided by

the rules stated in 4 Restatement on Torts 2d 108-142, Sections 822-831. Id. at 60.

Generally, the property owner damaged by the interference with the natural flow

of the surface water files a complaint alleging trespass or nuisance.

       {¶20} “Trespass is the unlawful entry upon the property of another.”

Chance v. BP Chems., Inc. (1996), 77 Ohio St.3d 17, 24, 670 N.E.2d 985. The

elements of trespass include “(1) an unauthorized intentional act, and (2) entry




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upon land in the possession of another.” Brown v. Scioto Cty. Bd. of Commrs.

(1993), 87 Ohio App.3d 704, 716, 622 N.E.2d 1153.

      {¶21} “Nuisance,” on the other hand, is defined as “the wrongful invasion

of a legal right or interest.” Ogle v. Ohio Power Co., 180 Ohio App.3d 44, 2008-

Ohio-7042, 903 N.E.2d 1284, ¶ 7, citing Taylor v. Cincinnati (1944), 143 Ohio St.

426, 432, 55 N.E.2d 724.       “Wrongful invasion” encompasses the use and

enjoyment of property or of personal rights and privileges. Taylor, 143 Ohio St. at

432. A “private nuisance” is “a nontrespassory invasion of another’s interest in

the private use and enjoyment of land.” Ogle, 2008-Ohio-7042, at ¶ 7, citing

Brown, 87 Ohio App.3d at 712. A private nuisance, unlike a public nuisance,

threatens only one or a few persons. Taylor, 143 Ohio St. at 442, citing McFarlane

v. Niagara Falls (1928), 247 N.Y. 340, 160 N.E.2d 391. For a private nuisance to

be actionable, the invasion must be either (1) intentional and unreasonable or (2)

unintentional but caused by negligent, reckless, or abnormally dangerous conduct.

Ogle, 2008-Ohio-7042, at ¶ 7, citing Brown, 87 Ohio App.3d at 712-13. “If the

conduct is abnormally dangerous, the court must balance the utility and benefit of

the alleged nuisance against the invasion and harm caused.” Kramer v. Angel’s

Path, L.L.C., 174 Ohio App.3d 359, 2007-Ohio-7099, 882 N.E.2d 46, ¶ 17, citing

Brown, 87 Ohio App.3d at 712-713.




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      {¶22} Private nuisances can be either absolute or qualified. “An absolute

nuisance, or nuisance per se, is based on intentional conduct or an abnormally

dangerous condition that cannot be maintained without injury to property, no

matter what precautions are taken.” Kramer, 2007-Ohio-7099, at ¶ 19, citing State

ex rel. R.T.G., Inc. v. State, 98 Ohio St.3d 1, 2002-Ohio-6716, 780 N.E.2d 998, ¶

59. See also Metzger v. Pennsylvania, Ohio & Detroit RR. Co. (1946), 146 Ohio

St. 406, 66 N.E.2d 203. Strict liability is imposed upon an absolute-nuisance

finding. Taylor, 143 Ohio St. at 426, paragraph two of the syllabus.        “Strict

liability will arise where one does or allows anything to be done ‘without just

cause or excuse, the necessary consequence of which interferes with or annoys

another in the enjoyment of his legal rights.’” Kramer, 2007-Ohio-7099, at ¶ 20,

citing Taylor, 143 Ohio St. 426, paragraph two of the syllabus. Under such

circumstances, one is under a duty to confine any such hazard, and failure to do so

will make one “prima facie answerable for all the damage which is the natural

consequence of [the water’s] escape.” Taylor, 143 Ohio St. at 435. However, an

absolute nuisance will not be found where one has been given permission or

authority to operate or erect the alleged nuisance, or one has complied with

applicable statutes and regulations. Peters, 2007-Ohio-7103, ¶ 30, citing Taylor,

143 Ohio St. at 435.




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      {¶23} In contrast, a qualified nuisance is premised upon negligence and is

“essentially a tort of negligent maintenance of a condition that creates an

unreasonable risk of harm.” Kramer, 2007-Ohio-7099, at ¶ 21, citing State ex rel.

R.T.G., 2002-Ohio-6716, at ¶ 59. Even that which was lawful in origin may

become a nuisance through “ ‘negligence in maintenance.’ ” Taylor, 143 Ohio St.

at 442, quoting McFarlane, 160 N.E. 391. Since a qualified nuisance is premised

upon negligence, negligence must be averred and proven in order to recover

damages. Brown, 87 Ohio App.3d at 713, 715; Allen Freight Lines, Inc. v. Consol.

Rail Corp. (1992), 64 Ohio St.3d 274, 276, 595 N.E.2d 855. “[T]he allegations of

nuisance and negligence therefore merge, as the nuisance claims rely upon a

finding of negligence.” Allen Freight Lines, 64 Ohio St.3d at 276. “To succeed on

any claim of negligence, the plaintiff must show that the defendant breached an

applicable duty of care and that the breach proximately caused the plaintiff’s

injuries.” Safeco Ins. Co. of Am. v. White, 122Ohio St.3d 562, 2009-Ohio-3718,

913 N.E.2d 426 ¶ 36, citing Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120,

2009-Ohio-2495, 909 N.E.2d 120, ¶ 10.

      {¶24} In light of these causes of action and rules of law, we find that

Davis’s complaint should have been dismissed for failure to state a claim upon

which relief could be granted. Although Davis was not required to set forth the

elements of any of these causes of action, she was, nonetheless, required to state



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“direct allegations on every material point necessary to sustain a recovery on any

legal theory.” Fancher, 8 Ohio App.3d at 83, 8 OBR 111, 455 N.E.2d 1344;

Moan, 15 Ohio St.3d at 66; Parks, 3d Dist No. 1-97-60, at *2; Davis’s complaint

failed to allege facts constituting a trespass, because she failed to allege any

“unauthorized intentional act(s)” taken by the Widmans. Although Davis alleged

that the Widmans’ drainage tile was too small, she never alleged that the Widmans

installed the drainage tile, blocked the drainage tile, damaged the drainage tile, or

any other possible “unauthorized intentional act(s).” The closest allegation of

intentional conduct, perhaps, was alleging that “the driveway has become higher

as time has past as more stone was placed on top of it.” Davis, however, never

alleged that the Widmans placed the stone on top of the driveway and thus failed

to allege any affirmative act by the Widmans.

       {¶25} With regard to a cause of action in nuisance, Davis could have

potentially alleged a private qualified nuisance, or essentially a claim for negligent

maintenance of the drainage pipe. Davis’s complaint, though, failed to set forth

facts constituting negligence.      Although Davis set forth facts establishing

causation and damages, she failed to allege a duty and corresponding breach,

which caused the damages. Davis alleged that the drainage tile is too small but

never alleged that the Widmans have a duty to replace the pipe with a larger pipe.

Nor is it clear what breach Davis alleged—is it that the Widmans failed to install a



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Case No. 13-09-20


larger pipe, piled the driveway stone too high, or something else?2 Additionally,

Davis’s complaint never alleged a “wrongful invasion” that interfered with the use

or enjoyment of her property. Taylor, 143 Ohio St. at 432. More troubling yet,

Davis’s complaint failed to allege or even imply that the Widmans’ actions were

unreasonable—the applicable duty relating to a landowner’s interference with

surface water. McGlashan, 62 Ohio St.2d at 60.

           {¶26} Based upon our de novo review of the face of the complaint, we

conclude that Davis failed to state a claim upon which relief could be granted.

Therefore, the trial court’s reliance upon evidence outside of the complaint,

though error, is harmless since the complaint should have been dismissed as a

matter of law. Shamansky, 127 Ohio App.3d at 404; Asbell, 2005-Ohio-2310, at ¶

45, 47.

           {¶27} For the aforementioned reasons, Davis’s second and third

assignments of error are overruled.

                                ASSIGNMENT OF ERROR NO. I

                  The trial court abused its discretion by not granting the
           appellant the preliminary injunctive relief against the appellees.

           {¶28} In her first assignment of error, Davis argues that the trial court

abused its discretion by failing to grant her motion for a preliminary injunction.

We disagree.

2
    For example, in her response to the Widmans’ motion to dismiss, Davis alleged that the driveway culvert


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        {¶29} A party seeking a preliminary injunction must show that “(1) there is

a substantial likelihood that the plaintiff will prevail on the merits, (2) the plaintiff

will suffer irreparable injury if the injunction is not granted, (3) no third parties

will be unjustifiably harmed if the injunction is granted, and (4) the public interest

will be served by the injunction.” Procter & Gamble Co. v. Stoneham (2000), 140

Ohio App.3d 260, 267, 747 N.E.2d 268. The right to a preliminary injunction

must be proved by clear and convincing evidence. S. Ohio Bank v. S. Ohio Sav.

Assn. (1976), 51 Ohio App.2d 67, 69, 366 N.E.2d 296. An injunction is an

equitable remedy that should be used only when an adequate remedy at law is not

available. Garono v. State (1988), 37 Ohio St.3d 171, 173, 524 N.E.2d 496. “The

purpose of a preliminary injunction is to preserve the status quo of the parties

pending a decision on the merits.” Dunkelman v. Cincinnati Bengals, Inc., 158

Ohio App.3d 604, 2004-Ohio-6425, 821 N.E.2d 198, ¶ 45.

        {¶30} An appellate court reviews a trial court’s decision to grant or deny a

motion for a preliminary injunction for an abuse of discretion. Danis Clarkco

Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist. (1995), 73 Ohio St.3d 590, 653

N.E.2d 646, paragraph three of the syllabus. An abuse of discretion is more than

an error in law; rather, it implies an unreasonable, arbitrary, or unconscionable




was either too small or blocked. Davis never alleged in her complaint that the driveway pipe was “blocked.


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Case No. 13-09-20


attitude on the part of the trial court. Blakemore v. Blakemore (1983), 5 Ohio St.3d

217, 219, 450 N.E.2d 1140.

       {¶31} Since Davis’s complaint failed to state a claim upon which relief

could be granted, we do not believe she demonstrated a substantial likelihood of

success upon the merits; and therefore, the trial court did not abuse its discretion in

denying the motion.

       {¶32} Davis’s first assignment of error is, therefore, overruled.

       {¶33} Having found no error prejudicial to the appellant herein in the

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

                                                                  Judgment affirmed.

       WILLAMOWSKI, J., concurs.

       ROGERS, J., concurs in judgment only.




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