Brown v. Scioto Cty. Bd. of Commrs., No. 92CA2052

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtHARSHA
PartiesBROWN, Appellant, et al., v. COUNTY COMMISSIONERS OF SCIOTO COUNTY, Appellees. 1
Docket NumberNo. 92CA2052
Decision Date18 May 1993

Page 704

87 Ohio App.3d 704
622 N.E.2d 1153
BROWN, Appellant, et al.,
v.
COUNTY COMMISSIONERS OF SCIOTO COUNTY, Appellees. 1
No. 92CA2052.
Court of Appeals of Ohio, Fourth District, Scioto County.
Decided May 18, 1993.

[622 N.E.2d 1155]

Page 708

Richard F. Swope, Reynoldsburg, for appellant.

Lynn Alan Grimshaw, Scioto County Pros. Atty., and Mark A. Leventhal, Asst. Pros. Atty., Portsmouth, for appellees.

HARSHA, Presiding Judge.

Jack D. Brown and Barbara Brown filed a complaint which alleged that the Scioto County Commissioners had failed to properly maintain and operate a sewage treatment plant and thereby created a nuisance and trespass to the Browns' neighboring property. After the trial court granted the commissioners' motion for summary judgment, Barbara Brown took this appeal. 2

Appellant assigns the following error:

"The trial court erred in granting defendant-appellees' motion for summary judgment[.]"

In 1983, the Browns filed a complaint seeking damages and injunctive relief against appellees and Sewer District No. Four. The Browns subsequently filed a third amended complaint naming appellees, [622 N.E.2d 1156] the state of Ohio, Department of Rehabilitation and Correction, and the superintendent of the Southern Ohio Correctional Facility ("SOCF") as defendants. Their third amended complaint alleged that the defendants had created a nuisance and trespassed on their property by negligently and/or willfully and wantonly constructing, operating, and maintaining a sewage treatment plant in the immediate vicinity of the Browns' real property. As a result of the defendants' tortious conduct, noxious gases and odors were emitted from the plant which settled on and diminished the value of the Browns' and their neighbors' property, created health hazards, denied them the use and enjoyment of their property, and caused extreme emotional and "intestinal" distress. The Browns sought injunctive relief against "each defendant" and compensatory and punitive damages against appellees in the total amount of $500,000.

Page 709

Appellees' answer to the amended complaint denied the majority of its allegations and stated that appellees neither owned nor operated the sewage treatment plant as of that date. The remaining defendants were dismissed pursuant to Civ.R. 12(B)(1) because the claims against them were required to be initially filed in the Court of Claims. The Browns subsequently filed a complaint against SOCF in the Court of Claims and, following a full trial, that court entered judgment in favor of SOCF. Brown v. S. Ohio Corr. Facility (1991), 62 Ohio Misc.2d 337, 598 N.E.2d 909.

Appellees filed a motion for summary judgment based upon the following grounds: (1) Jack D. Brown lacked standing; (2) there was no government "taking"; (3) there was no trespass; (4) the nuisance claim was not actionable; (5) the entire action was barred by the statute of limitations; and (6) the issuance of injunctive relief was not warranted. The Browns filed a memorandum contra appellees' summary judgment motion. Since we make an independent determination of the appropriateness of the summary judgment, a review of the evidence properly submitted on the motion follows.

In 1968, appellees and the state entered into an agreement in which the county would construct a waste water treatment facility upon land owned by the state near Lucasville, Ohio. The sewage treatment plant was intended to treat waste water from SOCF and subsequently processed additional sewage from a vocational school and approximately one hundred houses. In 1969, the state leased the land to appellees to operate and maintain the sewage treatment plant for fifteen years.

For the sum of $50,000, the Browns purchased a house located approximately one-quarter of a mile from the sewage treatment plant. They moved into the house on March 12, 1978. Prior to moving into the house, they did not perceive any odor from the plant. However, within the first week after they moved in, they noticed some odor coming from the plant. The odor was not very noticeable the first few years, but became worse and more frequent during the early 1980s. The odor was particularly bad when the weather was hot and humid or when the wind was blowing in a particular direction. The worst period for the noxious odors emanating from the sewage treatment plant was the summer of 1983, when there was an odor comparable to having their septic tank cleaned. The extreme odor during that period lasted twenty-four hours every day and prompted the Browns to file their initial complaint. Additionally, the odors from the plant increased the number of insects of all kinds on the Browns' property, requiring them to call an exterminating company two or three times a month during one period of time. The Browns became nauseated due to the odors, and in 1984, a physician indicated that it was a "probability" that appellant's stomach problems,

Page 710

including loss of appetite, were related to the treatment plant odors. The odors made it uncomfortable and, at times, impossible to be outside their house.

According to Jack D. Brown, the sewage treatment plant emitted germs and bacteria that rotted the ears off two rabbits that the Browns owned. Although unsure of the exact date, the Browns had their home [622 N.E.2d 1157] listed for sale at $65,000 and a woman interested in purchasing it was driven away by the plant odors. Although the Browns and several neighbors complained to appellees, as well as state and federal officials, no action was taken by appellees to remedy the problems associated with their operation and maintenance of the sewage treatment plant.

Appellees operated the sewage treatment plant from its inception under a lease with the state. The lease was extended for a few brief periods until it was determined that the state could more efficiently operate the plant. Accordingly, appellees relinquished operation and maintenance of the plant to the state on June 1, 1985. During appellees' period of operation of the plant, the condition of the plant was deplorable. The Ohio Environmental Protection Agency cited the plant for violations concerning the level of bacteria and suspended solids contained in the effluent discharged into an adjacent stream. Most of the equipment was old and worn out. A comminutor, which was utilized to break down the raw sewage, had not been operable for several months, and the screen used to filter the sewage through the treatment process had a large hole in it. One of the two oxidation ditches was idle and the other ditch was only operating at twenty-five to fifty percent of its capacity. The idle oxidation ditch had become septic, breeding anaerobic bacteria that emitted the gaseous substance causing the noxious odors.

When appellees operated the sewage treatment facility, they rarely stocked an inventory of spare parts for the plant machinery. Consequently, there were occasions when an old part malfunctioned and the plant would be shut down until a new part was back-ordered. The plant shut-downs caused untreated sewage to remain idle and contributed to the noxious odors.

In March 1988, the Browns obtained a dissolution. Jack D. Brown transferred his interest in the house and real property to appellant, but continued to reside in the house until 1990. On February 21, 1991, a realtor appraised the property owned by appellant as having a value of $50,000 as of that date. The real estate appraiser further opined that the property "would be worth $75,000 if the waste disposal plant odor was not present as an adverse condition."

The court of common pleas, after having reviewed the evidentiary material filed in support and in opposition to appellees' motion for summary judgment, entered summary judgment in favor of appellees, expressly determining there was no just cause for delay.

Page 711

Appellant's sole assignment of error asserts that the trial court erred in granting appellees' motion for summary judgment.

In reviewing a summary judgment, the lower court and the appellate court utilize the same standard, i.e., we review the judgment independently and without deference to the trial court's determination. Midwest Specialties, Inc. v. Firestone Co. (1988), 42 Ohio App.3d 6, 8, 536 N.E.2d 411, 413. Summary judgment is appropriate when the following have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) 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 construed most strongly in its favor. Bostic v. Connor (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881, 883; cf., also, State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 14, 577 N.E.2d 352, 353-354; Civ.R. 56(C). The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting summary judgment. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801. Additionally, a motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus.

[622 N.E.2d 1158] The lower court did not specify which of appellees' several grounds raised in their motion for summary judgment it found to be meritorious. Accordingly, we must review each of the arguments raised by appellees in order to determine if summary judgment was properly entered. Appellees initially contended that Jack D. Brown lacked standing in the action because he conveyed his interest in the subject property to appellant in 1988. Since Jack D. Brown did not file a notice of appeal, we need not review the propriety of this...

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