Franklin Cty. Dist. Bd. of Health v. Paxson, 02AP-727.
| Citation | 787 N.E.2d 59,2003 Ohio 1331,152 Ohio App.3d 193 |
| Decision Date | 20 March 2003 |
| Docket Number | No. 02AP-727.,02AP-727. |
| Parties | FRANKLIN COUNTY DISTRICT BOARD OF HEALTH, Appellee, v. PAXSON, Defendant/Third-Party Appellee; Board of Education of South-Western City Schools, Third-Party Defendant Appellant. |
| Court | United States Court of Appeals (Ohio) |
Ron O'Brien, Franklin County Prosecuting Attorney, and Joseph R. Durham, Assistant Prosecuting Attorney, for appellee.
Goldman & Braunstein, Michael Braunstein and Beth M. Miller, for defendant/third-party appellee.
Schottenstein, Zox & Dunn, Stephen J. Smith and Brian M. Zets, Columbus, for third-party defendant-appellant.
{¶ 1} South-Western City Schools, Board of Education ("South-Western"), third-party defendant-appellant, appeals from a judgment of the Franklin County Municipal Court, Environmental Division, denying its motion to dismiss and granting a permanent injunction against it.
{¶ 2} Andrew L. Paxson, defendant/third-party plaintiff-appellee, is the owner of real property in Grove City, Ohio. Paxson and his family moved into a house on the property in 1992 and installed a leach-bed type household sewage disposal system. Shortly after moving in, Paxson also bought a triangular piece of adjoining property behind his own property. The rear portion of Paxson's property is in a flood plain, and Paxson, as well as his neighbors, has experienced flooding problems since he moved onto the property. Following a heavy rain above one inch, ponding would occur, draining within two to four days into underground drainage tile Paxson had installed. When Paxson bought his property, a farmer owned the 109 acres behind Paxson's property. In 1997, the farmer sold the property to a real estate company, who then sold it in 1998 to South-Western, who planned to build several schools, parking lots, athletic fields, and other structures on the property.
{¶ 3} In the summer of 2000, South-Western began construction of a new school on the property. Prior to the construction, Mike Bobby, quality assurance manager for South-Western, attempted to obtain an easement to help convey storm water from the Weygandts, who owned 40 acres next to South-Western's property. The Weygandts refused. Bobby also attended a meeting with landowners including Paxson, in July 2000, to discuss concerns regarding the construction of the school. The landowners were concerned about drainage, which South-Western alleges it tried to address. South-Western claims that before it could investigate the concerns, Paxson retained legal counsel, thereby ending any informal discussion. Without help from the landowners, South-Western claims that it had to design and build a three- to four-acre retention pond to hold excess water. Kleingers & Associates ("Kleingers") was hired by South-Western's architecture firm to design the pond. Steven Korte, an engineer for Kleingers, was project manager for the pond. The pond had a 25-inch diameter pipe that discharged water directly at the rear of Paxson's property when the pond was full beyond its capacity. Construction of the pond was completed in November 2000.
{¶ 4} Paxson alleges that following construction of the retention pond, he began to experience excessive standing water. The problem intensified until Paxson had continuous standing water. As a result, Paxson claims his household septic system leach bed became completely saturated and stopped operating.
{¶ 5} On January 18, 2002, the Franklin County District Board of Health ("board of health"), plaintiff-appellee, filed a complaint for injunctive relief against Paxson, alleging that his household sewage disposal system was discharging sewage onto the surface of the ground. The complaint requested that the trial court declare Paxson's property to be a nuisance and permanently enjoin and restrain Paxson from maintaining the condition. On February 7, 2002, Paxson filed a third-party complaint against South-Western, alleging that South-Western altered the drainage pattern on his property and unreasonably increased the amount of surface water flowing onto his property. The third-party complaint also alleged that unless South-Western was restrained or enjoined from continuing the ongoing drainage activities, Paxson would suffer irreparable harm. Paxson prayed that the trial court enjoin South-Western from continuing the ongoing drainage activities and from maintaining the present drainage conditions. On February 25, 2002, South-Western moved to dismiss the third-party complaint, claiming that it was not properly joined as a third-party defendant and that the claims were already litigated and settled by the parties in Paxson v. Ruscilli Constr. Co., Inc., case No. 01CVHG12-12577, in the Franklin County Court of Common Pleas. In that related case, Paxson and other property owners brought an action for injunctive relief against South-Western and other defendants alleging that the construction of the school caused flooding on their property. The parties agreed to a temporary remedy in that case on September 14, 2001. The defendants in that case agreed to install a pump in the middle of the standing surface water to drain water from the plaintiffs' properties and to plan and execute a more permanent solution. The temporary remedy did not function as planned, and the defendants continued to search for a permanent solution.
{¶ 6} Prior to a hearing on the preliminary injunction, Steve Korte, who testified as an expert on behalf of South-Western, redesigned the method through which the pond would release water. This method, referred to as "Option C," sealed the old outlet pipe and ran a new 1,700- to 1,800-foot outlet pipe from the front of the retention pond, under the adjoining roadway, Big South Run Road, to an existing culvert under the roadway. The new method eliminates any drainage from the retention pond onto Paxson's or his neighbor's properties.
{¶ 7} On March 28, 2002, the trial court began a hearing on the permanent injunctions. At the hearing, Paxson admitted that his property was in violation of the health regulations, as alleged by the board of health. The hearing was continued.
{¶ 8} On April 3, 2002, the trial court denied South-Western's motion to dismiss. The trial court found that South-Western was properly added as a third-party defendant. The court also found that the parties did enter into an agreement in Paxson v. Ruscilli Construction Co., Inc., supra, but that the agreement avoided only the need to proceed with the preliminary injunction in that case and was not an agreement to settle the case.
{¶ 9} The trial court heard more testimony on April 18 and 30, 2002. On June 19, 2002, the trial court granted an injunction to the board of health and to Paxson and ordered that (1) South-Western modify the existing retention pond's run-off design so as to return Paxson's property to a condition that would permit the installation of a lawful household sewage disposal system; (2) South-Western bear the costs of such installation; and (3) South-Western complete such installation no later than September 1, 2002. The judgment was stayed pending appeal. South-Western appeals from the trial court's judgment, asserting the following two assignments of error:
{¶ 10} "1. The trial court erred in its decision denying third-party defendant board of education's motion to dismiss the third-party complaint.
{¶ 11}
{¶ 12} South-Western argues in its first assignment of error that the trial court erred in denying its motion to dismiss Paxson's third-party complaint. South-Western first asserts that the trial court's decision to deny its motion to dismiss was inapposite to the purposes of Civ.R. 14(A), which provides:
{¶ 13} "(A) When defendant may bring in third party
{¶ 14} "At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. * * *"
{¶ 15} South-Western argues that Paxson's third-party complaint against it did not depend on the outcome of the board of health's primary complaint, and South-Western's presence was not essential for a complete determination of the controversy between Paxson and the board of health. South-Western contends that Paxson's third-party complaint raised a separate, distinct claim third-party claim under Civ.R. 14(A), the claim must be derivative of the outcome of the main claim, and the third-party defendant must be "secondarily liable" or "liable over." Renacci v. Martell (1993), 91 Ohio App.3d 217, 220, 632 N.E.2d 536. A third-party claim is inappropriate where the right or duty set forth in the third-party complaint alleged to have been violated does not emanate from the plaintiff's claim but exists wholly independent of it. Id., citing Southeast Mtge. Co. v. Mullins (C.A.5, 1975), 514 F.2d 747, 750. Thus, "FRI order to be the proper subject of a third-party action, the alleged right of the defendant to recover, or the duty allegedly breached by the third-party defendant, must arise from the plaintiff's successful prosecution of the main action against defendant." Id. at 221, 632 N.E.2d 536. Civ.R. 14(A) does not allow a third-party complaint to be founded on a defendant's independent cause against a third-party defendant, even though arising out of the same occurrence underlying plaintiff's claim. State Farm Mut. Ins. Co. v. Charlton (1974), 41 Ohio App.2d 107, 70 O.O.2d 101, 322 N.E.2d 333. Impleader under Civ.R. 14(A) cannot be used to combine all claims tangentially related to one another. Renacci, supra.
{¶ 17} In its complaint and request for injunctive relief, the board of health alleged that Paxson's property...
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