[Cite as Maumee Watershed Conservancy Dist. Bd. of Dirs. v. Army, 2017-Ohio-9082.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              VAN WERT COUNTY




BOARD OF DIRECTORS, MAUMEE
WATERSHED CONSERVANCY
DISTRICT,
                                                                 CASE NO. 15-17-09
        PLAINTIFF-APPELLEE,

        v.

KEDAR ARMY, ET AL.,                                              OPINION

        DEFENDANTS-APPELLANTS.




               Appeal from Van Wert County Common Pleas Court
                          Trial Court No. CV16-10-154

                                    Judgment Affirmed

                         Date of Decision: December 18, 2017




APPEARANCES:

        Timothy S. Holtsberry for Appellants

        Scott R. Gordon for Appellee
Case No. 15-17-09



ZIMMERMAN, J.

       {¶1} Defendant-Appellants Kedar Army, Mary Lou Army, Kedar Army as

Trustee of the Kedar D. Army Revocable Living Trust and Mary Lou Army, as

Trustee of the Mary Lou Army Revocable Living Trust (collectively referred to as

“Appellants”), appeal the decision of the Court of Common Pleas of Van Wert

County, Ohio granting summary judgment in favor of the Plaintiff-Appellee, the

Board of Directors of the Maumee Watershed Conservancy District.

       {¶2} On appeal, Appellants assert that: 1) the trial court erred in granting

summary judgment pursuant to Civil Rule 56 when genuine issues of material fact

existed; 2) the trial court erred in granting summary judgment because Appellants

were not allowed to conduct discovery since their continuance request was denied;

3) the trial court erred in granting summary judgment when no metes and bounds

description existed for certain parts of Appellee’s easement; 4) the trial court erred

in granting summary judgment when it expanded the terms of Appellee’s easement;

5) the trial court erred in granting summary judgment because the Appellee had not

maintained its easement causing a nuisance and therefore abandoned the easement;

and 6) the trial court abused its discretion in not allowing the Appellants to file a

counterclaim. For the reasons that follow, we affirm the ruling of the trial court.




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                                                   Facts

         {¶3} In 1994, the Maumee Watershed Conservancy District (the “District”)

obtained a land right easement from Searle and Elsie Taylor, as part of its Little

Auglaize River Watershed Project, PL-566. (Doc. No. 42 at 866-67). At that time,

Searle and Elsie Taylor were the landowners of the real property located at 11580

Fife Road, in Van Wert, Ohio. (Id.). The easement was recorded with the Van Wert

County Recorder’s Office on June 27, 1994 and the landowners’ real estate property

taxes were extinguished by the Van Wert County Auditor’s Office. (Id.).

         {¶4} Sometime in early 2012, the District became aware that Appellants had

purchased the real property located at 11580 Fife Road in Van Wert, Ohio from the

Taylors1 and were planning to develop the property subject to the easement. (Id.).

As a result, Clark Lynn Army, (“Clark”) General Manager of the District, met with

Appellants to explain the restrictions that the recorded easement placed upon their

property.2 (Id.).

         {¶5} Later in 2012, a dispute arose between the District and Appellants

concerning a second and unrecorded easement, pertaining to the real property. (Id.).

The District acknowledged the existence of the second unrecorded easement, but




1
  Appellants purchased less than the original 40 acres referenced by the easement, as part of the property was
subdivided prior to their purchase.
2
  Of note, Clark Lynn Army is the nephew of Kedar and Mary Lou Army.

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reaffirmed that the recorded easement placed limitations on Appellants’ use of their

real property. (Id. at 868).

       {¶6} Between 2013 and 2015, Clark met with Kedar and Kedar’s tenant

farmer to discuss issues regarding the use of the property in relation to the easement.

(Id.). At that meeting, Clark told Kedar that he was permitted to create an access

driveway on his property and could run a tile from the woods (on the property) to a

creek for drainage purposes. (Id.).

       {¶7} Nonetheless, in early August, 2016, the District learned from the Van

Wert County Ditch Supervisor that the Appellants had cut down trees and had

drained a pond on the real property. (Id.). As a result, the Board of Directors for

the District directed its attorney to send a registered letter informing Appellants that

these activities on the property were in contradiction to the easement. (Id.). Such

letter was sent and Appellants never responded. (Id.).

       {¶8} In early October, 2016, Clark inspected the real estate and observed

someone removing a spoil pile and excavating dirt on the property, which was

contrary to the terms of the recorded easement. (Id.). Clark confronted Appellants

and learned that Kedar planned to go forward with his development of the real

estate. (Id.).

       {¶9} At the October 11, 2016 District Board meeting, the Board passed a

resolution authorizing legal action against the Appellants. (Id.).


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                                 Procedural History

       {¶10} On October 24, 2016 the District filed a complaint in the trial court

against Kedar and Mary Lou Army. In their complaint, the District alleged that

Appellants had violated the terms of the recorded easement on the property. (Doc.

No. 1 at ¶ 23). Specifically, the complaint alleged that Appellants had demolished

a “spoil pile” and had drained the “oxbow pond of water,” contrary to terms of the

recorded easement. (Id.). As a result, the District was seeking a temporary

restraining order, a preliminary injunction, a permanent injunction, money damages,

and a fine against Appellants. (Id. at ¶¶ 26-48).

       {¶11} On December 21, 2016, Appellants filed their answer, denying the

allegations contained in the District’s complaint.        (Doc. No. 13 at ¶¶ 4-5).

Appellants’ answer also asserted that the District failed to state a claim upon which

relief could be granted and that the District was barred from equitable relief by virtue

of the doctrine of unclean hands. (Id. at 1-2).

       {¶12} On January 5, 2017, the District requested permission to amend their

complaint to add additional parties. Specifically, the District requested that the

Kedar D. Army Revocable Living Trust (with Kedar Army as Trustee) and the Mary

Lou Army Revocable Living Trust (with Mary Lou Army as Trustee) be made

parties to the lawsuit. (Doc. No. 15 at 2). Appellants agreed to the District’s motion




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to amend its complaint and on March 20, 2017, they filed an answer to the District’s

amended complaint. (Doc. Nos. 17; 25).

        {¶13} On April 3, 2017, the District filed its motion for summary judgment.

(Doc. No. 27). The District asserted that there was no genuine issue of material fact

and that it was therefore entitled to judgment as a matter of law. (Id.). On April 19,

2017, Appellants filed their reply to the District’s motion for summary judgment.

(Doc. No. 31). Specifically, Appellants argued that there were genuine issues of

fact regarding the parties’ interpretation and application of the easement, whether

either party violated the easement, and the extent of environmental ramifications

and damages alleged by the District. (Id. at 1).

        {¶14} In addition to responding to the Districts’ summary judgment motion,

Appellants also filed a counter complaint3 for damages and a petition for declaratory

judgment on April 19, 2017. The District then filed a motion to dismiss these

pleadings, pursuant to Civ.R. 12. (Doc. Nos. 32; 33). Specifically, the District

argued that the Appellants’ counter complaint and declaratory judgment request

were filed out of rule and without leave of court. (Id.). Thereafter, on May 2, 2017,

Appellants filed a motion for leave to file an amended answer. (Doc. No. 35).

        {¶15} On June 7, 2017, the trial court overruled Appellants’ counterclaim

and petition for declaratory judgment, as well as Appellants’ motion for leave to file


3
 While Appellants filed a “counter complaint” for damages in the trial court, we will use the terms “counter
complaint” and “counterclaim” interchangeably throughout this opinion.

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Case No. 15-17-09


an amended answer.       (Doc. No. 41). In its ruling, the trial court found that

Appellants’ requests were out of rule. (Id.). On the same date the trial court also

filed its decision granting the District’s motion for summary judgment. (Doc. No.

42). In granting the motion for summary judgment, the trial court held:

       The District argues that summary judgment should be granted to it
       because the defendants [Appellants] presented no admissible Civ R
       [sic] 56 evidence to refute the expert witnesses presented in the
       District’s motion. This Court agrees with that argument. The
       evidence presented is undisputed that the defendants violated the
       terms of easement even after they were warned not to do so.

(Id. at 875). As a result of granting the motion for summary judgment, the trial court

awarded the District $8,599.10 in damages, a permanent injunction, expert witness

fess, court costs, interest on the judgment from the date of filing, and fined

Appellants $200.00. (Id. at 875-76). It is from this decision that Appellants appeal,

presenting the following assignments of error for our review:

                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED IN GRANTING SUMMARY
       JUDGMENT PURSUANT TO CIVIL RULE 56 WHEN
       GENUINE ISSUES OF MATERIAL FACT EXISTED.

                       ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED IN GRANTING SUMMARY
       JUDGMENT PURSUANT TO CIVIL RULE 56 WHEN
       APPELLANT WAS NOT ALLOWED TO CONDUCT
       DISCOVERY WHEN A CONTINUANCE WAS REQUESTED.




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                      ASSIGNMENT OF ERROR NO. III

       THE TRIAL COURT ERRED IN GRANTING SUMMARY
       JUDGMENT PURSUANT TO CIVIL RULE 56 WHEN NO
       METES AND BOUNDS DESCRIPTION EXISTED FOR
       CERTAIN ELEMENTS OF THE EASEMENT.

                      ASSIGNMENT OF ERROR NO. IV

       THE TRIAL COURT ERRED IN GRANTING SUMMARY
       JUDGMENT PURSUANT TO CIVIL RULE 56 WHEN IT
       EXPANDED THE TERMS OF THE EASEMENT.

                       ASSIGNMENT OF ERROR NO. V

       THE TRIAL COURT ERRED IN GRANTING SUMMARY
       JUDGMENT PURSUANT TO CIVIL RULE 56 WHEN THE
       APPELLEES HAD NOT MAINTAINED THEIR EASEMENT
       CAUSING A NUISANCE AND THEREFORE ABANDONED
       THE EASEMENT.

                      ASSIGNMENT OF ERROR NO. VI

       THE TRIAL COURT ABUSED ITS DISCRETION IN NOT
       ALLOWING    THE  APPELLANTS    TO   FILE   A
       COUNTERCLAIM.

       {¶16} For ease of analysis, interrelated assignments of error will be discussed

together.

               First, Third, Fourth, and Fifth Assignments of Error

       {¶17} In their first, third, fourth, and fifth assignments of error, Appellants

assert that the trial court erred in granting summary judgment pursuant to Civil Rule

56: 1) when genuine issues of material fact existed; 2) when no metes and bounds

description existed for certain elements of the easement; 3) when it expanded the

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terms of the easement; and 4) when the evidence demonstrated that the District had

not maintained their easement. For the reasons that follow, we disagree.

                                Standard of Review

       {¶18} An appellate court reviews a trial court’s decision on a motion for

summary judgment de novo. Hancock Fed. Credit Union v. Coppus, 2015-Ohio-

5312, 54 N.E.3d 806, ¶ 15 (3rd Dist.). Summary judgment is appropriate when,

looking at the evidence as a whole: (1) there is no genuine issue as to any material

fact; (2) reasonable minds can come to but one conclusion and that conclusion is

adverse to the party against whom the motion for summary judgment is made; and,

therefore, (3) the moving party is entitled to judgment as a matter of law. Civ.R.

56(C); Adkins v. Chief Supermarket, 3rd Dist. Paulding No. 11-06-07, 2007-Ohio-

772, ¶ 7. If any doubts exist, the issue must be resolved in favor of the nonmoving

party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95, 604

N.E.2d 138. The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of material

fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-93, 1996-Ohio-107, 662 N.E.2d 264.

In doing so, the moving party is not required to produce any affirmative evidence,

but must identify those portions of the record which affirmatively support his

argument. Id. “The nonmoving party must then rebut with specific facts showing

the existence of a genuine triable issue; he may not rest on the mere allegations or


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Case No. 15-17-09


denials of his pleadings”. Id.; Civ.R. 56(E); Brickner v. Wittwer, 3rd Dist. Hardin

No. 6-10-12, 2011-Ohio-39, ¶ 11.

                                      Analysis

       {¶19} Pursuant to Civ.R. 56(C), the party requesting summary judgment

bears the initial burden of informing the trial court of the basis for the motion and

identifying those portions of the record demonstrating the absence of a genuine issue

of material fact. Dresher at 293. The moving party, however, cannot discharge its

initial burden under this rule with a conclusory assertion that the non-moving party

has no evidence to prove its case; the moving party must specifically point to

evidence of a type listed in Civ.R. 56(C), affirmatively demonstrating that the non-

moving party has no evidence to support the non-moving party’s claims. Id., see

also Beachwood Pointe Care Ctr. v. Bealer, 10th Dist. Franklin No. 09AP-1171,

2010-Ohio-5080, ¶ 9. Once a moving party discharges its initial burden, summary

judgment is appropriate if the non-moving party does not respond, by affidavit or

as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue

exists for trial. (Emphasis added). Id.

       {¶20} Civ.R. 56(C) delineates the types of evidence a party may use to

support a summary judgment motion. Specifically, it provides in part:

       The motion shall be served in accordance with Civ.R. 5. Unless
       otherwise provided by local rule or by order of the court, the adverse
       party may serve responsive arguments and opposing affidavits within
       twenty-eight days after service of the motion, and the movant may

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Case No. 15-17-09


      serve reply arguments within fourteen days after service of the
      adverse party’s response. Summary judgment shall be rendered
      forthwith if the pleadings, depositions, answers to interrogatories,
      written admissions, affidavits, transcripts of evidence, and written
      stipulations of fact, if any, timely filed in the action, show that there
      is no genuine issue as to any material fact and that the moving party
      is entitled to judgment as a matter of law. No evidence or stipulation
      may be considered except as stated in this rule. A summary judgment
      shall not be rendered unless it appears from the evidence or
      stipulation, and only from the evidence or stipulation, that reasonable
      minds can come to but one conclusion and that conclusion is adverse
      to the party against whom the motion for summary judgment is made,
      that party being entitled to have the evidence or stipulation construed
      most strongly in the party’s favor. * * *.

(Emphasis added). Civ.R. 56(C).

      {¶21} In support of its motion for summary judgment, the District attached

the following exhibits to its motion for summary judgment:

       Affidavit of Clark Lynn Army, General Manager of the Maumee

          Watershed Conservancy District (Doc. No. 27, Ex. 1).

       The 1994 recorded easement from Searle and Elsie Taylor to the

          District regarding the property located at 11580 Fife Road in Van

          Wert, Ohio (Doc. No. 27, Ex. A).

       The quit claim deed from Kedar and Mary Lou Army to the Kedar

          D. Army Revocable Living Trust and the Mary Lou Army

          Revocable Living Trust, executed on February 9, 2015 (Doc. No.

          27, Ex. B).



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          A letter from Kedar and Mary Lou Army to Clark Lynn Army

             regarding the District dated February 15, 2012 (Doc. No. 27, Ex.

             C).

          A letter from Clark Lynn Army to Kedar Army regarding the

             District dated February 23, 2012 (Doc. No. 27, Ex. D).

          A letter to Clark Lynn Army from Todd D. Wolfrum4, attorney at

             law, regarding the District’s recorded easement on the Armys’

             property dated March 15, 20125 (Doc. No. 27, Ex. E).

          A response letter from John W. Weaner, attorney at law, on behalf

             of the District to Todd Wolfrum, dated April 12, 2012 (Doc. No.

             27, Ex. F).

          A letter from John W. Weaner to Todd D. Wolfrum regarding

             resolution of the conflict between the Armys and the District,

             dated May 14, 2012 (Doc. No. 27, Ex. G).

          Photographs of the Armys’ real property (Doc. No. 27, Ex. H(a)-(d)).

          A letter from Jim Weaner, on behalf of the District, to Kedar Army

             regarding the tree clearing/excavation activity on the Army

             property, dated August 22, 2016 (Doc. No. 27, Ex. I).


4
  Todd Wolfrum was the attorney that performed the title search on the Armys’ property prior to the Armys
purchasing the land at an estate sale.
5
  It appears that the March 15, 2011 date on the letter was in error, as there is a handwritten notation next to
the date. However, due to copy quality we are unable to discern what the notation actually says.

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Case No. 15-17-09


        Additional pictures of the Army property (Doc. No. 27, Ex. J(a)-

          (c)).

        The District’s estimate of the cost to repair/reestablish the spoil

          pile and oxbow pond due to the damages sustained on the property

          as of October 10, 2016 (Doc. No. 27, Ex. K).

        The notarized report of Paul W. Chester, P.E., Agricultural

          Engineer (Doc. No. 27, Ex. 2).

        The land drawings showing fishery-oxbow pond #5 and spoil pile

          #3 (Doc. No. 27, Ex. 3A).

        The land drawings of the Union Township easement area. (Doc.

          No. 27, Ex. 3B).

       {¶22} In granting the District’s motion for summary judgment, the trial court

granted the District the following: a permanent injunction, $8599.10 in damages

plus costs. The trial court also fined Appellants $200. We will discuss each of these

orders in turn in regards to summary judgment.

                               Permanent Injunction

       {¶23} A party seeking a permanent injunction must show that the injunction

is necessary to prevent irreparable harm and that the party does not have an equitable

remedy at law. Procter & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267,




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747 N.E. 2d 268 (1st Dist.2000), cause dismissed 91 Ohio St.3d 1478, 744 N.E.2d

775 (2001).

        {¶24} The affidavit of Clark Lynn Army and the exhibits incorporated into

the affidavit by reference, demonstrate that no genuine issue of material fact is

present in regards to the granting of the permanent injunction. In his affidavit, Clark

Lynn Army testified that the Appellants caused irreparable harm to the District’s

Little Auglaize River Watershed Project, PL-566, when they cut trees, drained

oxbow pond #5, and removed spoil pile #3 on their real estate, in violation of the

recorded easement. (Doc. No. 27, Ex. Nos. 1, A). Additionally, the (notarized)

expert report from Paul W. Chester, P.E.,6 averred that it would take twenty years

for the reestablishment of the vegetation to complete the full restoration of the area

to the condition that existed prior to the Armys’ actions. (Id., Ex. Nos. 1, 2).

        {¶25} Clark Lynn Army’s affidavit further stated that there was no other

remedy at law to prevent the harm caused on the property by Appellants. His

affidavit also averred that the only way to protect the integrity of the Little Auglaize

River Watershed Project PL-566 was to force the Appellants to cease their work

clearing the portion of their property that was subject to the easement. (Id., Ex. No.

1, ¶ 24).




6
  Paul W. Chester is an agricultural engineer who compiled a report for the District, and such report was
incorporated into the affidavit of Clark Lynn Army by reference. (Doc. No. 27, Ex. Nos. 1, 2).

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       {¶26} In our de novo review, we find that competent and credible evidence

exists in the record showing an absence of a genuine issue of material fact that a

permanent injunction was the only remedy available to the District to prevent future

harm to the District’s land conservation efforts protected by the recorded easement.

Thus, we find that the District successfully met their summary judgment burden by

demonstrating the absence of a genuine issue of material fact on the essential

elements of a permanent injunction as requested in its complaint.

                                       Damages

       {¶27} In its complaint, the District directed the trial court to R.C. 6101.82,

entitled “Liability for Damages to District,” for guidance on the issue of damages

to conservancy districts. Specifically, R.C. 6101.82 provides:

       (A) All persons and corporations shall be liable for damage done to
       works of a conservancy district by themselves, their agents, their
       employees, or by their livestock.

       (B) No person shall damage any works, improvements or property
       of a conservancy district. Whoever violates this division of this
       section shall be liable for all damages and costs.

       The board of directors of the conservancy district may repair such
       damage at the expense of the person or corporation committing it.

R.C. 6101.82.

       {¶28} In its complaint, the District established that it is a conservancy district

created under R.C. 6101, a fact confirmed by Clark Lynn Army in his affidavit.

(Doc. No. 3 at 3; 27, Ex. No. 1). Also in his affidavit, and the exhibits incorporated

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Case No. 15-17-09


therein by reference, Clark Lynn Army asserted that damage was done to the

conservancy efforts of the District on Appellants real estate because Appellants:

drained the oxbow pond, removed the spoil pile, and cleared trees on the portion of

the property governed by the recorded easement. (Id). And, as to the monetary

damages suffered by the District, Paul W. Chester, Appellee’s expert, presented an

estimate for the costs of restoring the property which detailed the following

expenses:

       Admin. & Job Supervision                    $800

       Site Survey                                 $400

       Mobilization                                $200

       Restoration Pile Area and Pond             $3,200

       Materials to Install Berm Drain Pipe        $717

       Site Reseeding and Mulch                   $2,000

       Site Tree Planting (Bare root seedlings)    $400

       Pond Fish Restocking                        $100

       Contingencies                               $782

       TOTAL                                      $8,599

(Id., Ex. No. 2 at 3).

       {¶29} Pursuant to R.C. 6101.82, we find in our de novo review that the

District established: that the Appellants damaged the property subject to the


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recorded easement; that the Appellants were liable to the District for the damages

caused to the property; and that the costs for restoration of the damaged area was

$8,599.

       {¶30} Accordingly, we find in our de novo review that the District

successfully met its summary judgment burden by demonstrating the absence of a

genuine issue of material fact on the essential elements of its claim for damages.

                                        Fine

       {¶31} In its complaint, the District also requested a fine against the

Appellants in the amount of five hundred dollars ($500). (Doc. No. 3 at 9). In

support of its request the District directed the trial court to R.C. 6101.99, entitled

“penalty.” (Id.). Specifically, R.C. 6101.99 provides, in part: * * * (D) Whoever

violates division (B) of section 6101.82 of the Revised Code shall be fined not more

than five hundred dollars. * * *.” R.C. 6101.99(D). As established above, the

District presented sufficient evidence that the Armys violated R.C. 6101.82(B) by

damaging the conservation efforts of the District. (See, Doc. No. 3; Doc. No. 27,

Ex. Nos. 1, 2). Because the amount of the fine was discretionary up to $500, the

trial court was within its authority to impose a fine of $200.

       {¶32} We find in our de novo review that competent and credible evidence

exists in the record showing an absence of a genuine issue of material fact that a

fine of up to $500 was authorized by statute against the Appellants. Accordingly,


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we find that the District successfully met its summary judgment burden by

demonstrating the absence of a genuine issue of material fact on all of the essential

elements of their claim regarding the issuance of a statutorily authorized fine by the

trial court.

                          Civ.R. 56(E) Reciprocal Burden

       {¶33} Appellants, as the non-moving party to summary judgment, have the

reciprocal burden of proof as set forth in Civ.R. 56(E) to “set forth specific facts

showing that there is a genuine issue for trial and, if the nonmovant does not so

respond, summary judgment, if appropriate, shall be entered against the non-moving

party.” Dresher, supra, at 293. To satisfy their burden, Appellants attached the

following exhibits to their reply to the District’s motion for summary judgment:

        The 1994 recorded easement from Searle and Elsie Taylor to the

           District regarding the property located at 11580 Fife Road in Van

           Wert, Ohio (Doc. No. 31, Ex. A).

        Photographs of the Armys’ real estate (Doc. No. 31, Ex. B).

        Photographs of oxbow pond #5 (Doc. No. 31, Ex. C).

        A memo from the District explaining the easement and describing

           options for excavated material (Doc. No. 31, Ex. D).

        A copy of the notarized report of Paul W. Chester, P.E.,

           Agricultural Engineer (Doc. No. 31, Ex. E).


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          A letter from Kedar and Mary Lou Army to Clark Lynn Army

             regarding the District dated February 15, 2012 (Doc. No. 31, Ex.

             F).

          Additional photographs of the Armys’ real estate. (Doc. No. 31,

             Ex. G).

         {¶34} While Appellants argue that genuine issues of material fact exist, our

review of the exhibits offered in opposition to the District’s summary judgment

motion reveals that none of such exhibits comply with Civ.R. 56(C) and (E).7 We

have outlined the types of permissible evidence under Civ.R. 56(C) above and find

that the evidence presented by the Appellants’ in their reply to the District’s motion

for summary judgment does not comply with the Civil Rules. Thus, we cannot say

that the Appellants presented any evidence to the trial court to demonstrate a genuine

issue of material fact. As “unsupported allegations in the pleadings do not suffice

to necessitate the denial of summary judgment,” Appellants failed to meet their

reciprocal burden under Civ.R. 56(E) to defeat the summary judgment request. See

generally, Savransky v. City of Cleveland, 4 Ohio St.3d 118, 119, 447 N.E.2d 98

(1983).




7
 “Rule 56(E) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary
materials listed in Rule 56(C), except the mere pleadings themselves, and it is from this list that one would
normally expect the nonmoving party to make the showing [required under Civ.R. 56(E)].” (Emphasis
added). Dresher, 75 Ohio St.3d 280, 289, 1996-Ohio-107, 662 N.E.2d 264.

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       {¶35} Accordingly, in our de novo review, we find that the District sustained

their burden as to the absence of a genuine issue as to any material fact that must be

litigated and that reasonable minds can come to but one conclusion and that

conclusion is that the District is entitled to a permanent injunction, monetary

damages, and an imposed fine. Moreover, Appellants failed to present any evidence

in accordance with Civ.R. 56(C) to demonstrate that a genuine issue of material fact

was present in this case. Thus, the trial court did not err in granting the District’s

motion for summary judgment. Accordingly, Appellants’ first, third, fourth, and

fifth assignments of error are overruled.

                            Second Assignment of Error

       {¶36} In their second assignment of error, Appellants assert that the trial

court erred in granting summary judgment because they were not allowed to conduct

discovery due to a denial of their continuance request. For the reasons that follow,

we disagree.

                                Standard of Review

       {¶37} While Appellants approach this assignment of error as an error in

granting summary judgment, the crux of their argument is the denial of their

requested continuance. “The grant or denial of a continuance is a matter which is

entrusted to the broad, sound discretion of the trial judge.” State v. Unger, 67 Ohio

St.2d 65, 67, 423 N.E.2d 1078 (1981). “An appellate court must not reverse the


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denial of a continuance unless there has been an abuse of discretion.” Id. citing

Unger v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841 (1964). The term ‘abuse of

discretion’ “implies that the court’s attitude is unreasonable, arbitrary, or

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983). “A trial court will be found to have abused its discretion when its decision

is contrary to law, unreasonable, not supported by the evidence, or is grossly

unsound.” Mackenbach v. Mackenbach, 3rd Dist. Hardin No. 6-11-03, 2012-Ohio-

311, ¶ 7. When reviewing a decision under an abuse of discretion standard, the

appellate “court may not simply substitute its judgment for that of the trial court.”

In re A.G.M.C., 3rd Dist. Marion No. 9-10-30, 2010-Ohio-5188, ¶ 41.

                                      Analysis

       {¶38} Appellants argue that the trial court improperly denied their counsel’s

request for a continuance. Specifically, Appellants assert that because their new

trial counsel entered his appearance on March 17, 2017, two days after the trial

court’s discovery deadline, and because their prior counsel had not completed

discovery, the trial court should have granted Appellants’ continuance in order for

them to conduct meaningful discovery. We disagree.

       {¶39} In this case, Appellants’ first attorney filed his entry of appearance on

December 1, 2016, over a month after the initial complaint was filed. On January

11, 2017, the trial court issued its scheduling order ordering that discovery be


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completed by March 15, 2017. On February 8, 2017, Appellants’ second attorney

filed a substitution of counsel notice with the trial court. However, on March 6,

2017, Appellants’ second attorney filed a motion to withdraw as counsel advising

the trial court that the Appellants decided not to retain her services and had not yet

had their preferred attorney enter an appearance on behalf of Appellants. In the

request to withdraw, Appellants’ second counsel attached a February 28, 2017 email

exchange between her and Appellants that advised them of the upcoming deadlines

imposed by the trial court, including the March 15, 2017 discovery deadline. Thus,

Appellants were well aware of the deadlines imposed by the trial court.

           {¶40} Therefore, in reviewing the facts of this case, we cannot say that the

trial court’s decision to deny the request for a continuance was contrary to law,

unreasonable, not supported by the evidence, or grossly unsound. Further, and

contrary to the cases cited by Appellants, the record reveals that at no point during

the case did the Appellants ever request discovery. However, it is of note that the

trial court did verbally order the District to provide Appellants complete discovery,

which was exchanged on April 3, 20178. Therefore, even if it were in error to deny

the continuance, such denial was harmless error, as the Appellants were provided

with complete discovery after their request for the continuance to conduct discovery

was denied.



8
    See, Plaintiff’s notice of service of discovery, filed on April 3, 2017. (Doc. No. 28).

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      {¶41} In reviewing the record, we find that the trial court did not abuse its

discretion in denying Appellants’ request for a continuance. Accordingly, we

overrule Appellant’s second assignment of error.

                            Sixth Assignment of Error

      {¶42} In their sixth and final assignment of error, Appellants assert that the

trial court abused its discretion by not allowing Appellants to file a counterclaim.

We disagree.

                                Standard of Review

      {¶43} The term ‘abuse of discretion’ “implies that the court’s attitude is

unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983). “A trial court will be found to have abused its

discretion when its decision is contrary to law, unreasonable, not supported by the

evidence, or is grossly unsound.” Mackenbach v. Mackenbach, 3rd Dist. Hardin

No. 6-11-03, 2012-Ohio-311, ¶ 7. When reviewing a decision under an abuse of

discretion standard, the appellate “court may not simply substitute its judgment for

that of the trial court.” In re A.G.M.C., 3rd Dist. Marion No. 9-10-30, 2010-Ohio-

5188, ¶ 41.

                                     Analysis

      {¶44} A trial court has discretion in determining whether to grant a motion

for leave to amend a pleading. Hoover v. Sumlin, 12 Ohio St.3d 1, 4, 465 N.E.2d


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377 (1984), holding modified by Jim’s Steak House, Inc. v. City of Cleveland, 81

Ohio St.3d 18, 1998-Ohio-440, 688 N.E.2d 506.

       {¶45} Appellants direct this Court to Amend v. Morgan, stating that Amend

is similar to the case sub judice. Amend v. Morgan, 5th Dist. Ashland No. 14-COA-

041, 2015-Ohio-3185. However, Appellants reliance on Amend is misplaced. In

Amend, the Appellant in that case argued that the trial court abused its discretion in

granting Appellee’s motion for leave to file a counterclaim. Id. at ¶ 18. The 5th

District Court of Appeals found that a motion for leave to amend should be granted

unless the court finds bad faith, undue delay or undue prejudice to the opposing

party. Id. at ¶ 19. Appellants herein argue that since the trial court did not make a

specific finding of bad faith, undue delay, or undue prejudice to the opposing party,

it was an abuse of discretion for the trial court to deny their continuance request.

However, the facts in the case before us are distinguishable from Amend. Here,

contrary to the facts in Amend, Appellants never filed a motion for leave to file a

counter-complaint or amend their answer in the trial court prior to filing the

counter-complaint. Thus, we are not persuaded by Appellants’ cited authority.

       {¶46} However, even if it were error for the trial court to deny Appellants’

counterclaim, Appellants invited such error by filing a claim without first filing a

motion with the trial court for permission. Under the doctrine of invited error, a

party is not entitled to take advantage of an error that he himself invited or induced


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the court to make. State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-

4849, 775 N.E.2d 517, ¶ 27. Appellants’ sixth assignment of error is accordingly

overruled.

       {¶47} Having found no error prejudicial to the Appellants herein in the

particulars assigned and argued, we overrule Appellants’ first, second, third, fourth,

fifth, and sixth assignments of error and affirm the judgment of the Van Wert

County Common Pleas Court.

                                                                 Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




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