Harvey v. Republic Servs. of Ohio II, L.L.C., 2009 Ohio 1343 (Ohio App. 3/23/2009), No. 2007 CA 00278.
| Decision Date | 23 March 2009 |
| Docket Number | No. 2007 CA 00278. |
| Citation | 2009 Ohio 1343 |
| Parties | Richard Harvey, et al., Plaintiffs-Appellants, v. Republic Services of Ohio II, LLC dba Countywide Recycling & Disposal Facility, et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Robert G. Rubin, 315 West Tuscarawas Street, Suite 301, Canton, Ohio 44702, for Plaintiffs-Appellants.
Sharon D. Miller, Esq., Asst. Stark County Prosecutor, 110 Central Plaza South, Suite 510, P.O. Box 20049, Canton, Ohio 44702-0049, For Deputy Craig Kennedy and Deputy Darin Baad.
Terry M. Brennan, Esq., Jason P. Perdion, Esq., Baker & Hostetler, LLP, 3200 National City Center, 1900 E. 9th Street, Cleveland, Ohio 44114, and Rex Miller, Esq., 606 Belden Whipple Bldg., 4150 Belden Villiage Street, Canton, Ohio 44718, for Defendants-Appellees.
Before: William B. Hoffman, P.J., Julie A. Edwards, J., Patricia A. Delaney, J.
{¶1} Plaintiffs-appellants, Richard and Linda Harvey, appeal from the September 4, 2007 Judgment Entry of the Stark County Court of Common Pleas granting the Motions for Summary Judgment filed by defendants-appellees Republic Services of Ohio II, LLC, Timothy Vandersall, Stark County Deputy Darin Baad and Stark County Deputy Craig Kennedy.
{¶2} Appellee, Republic Services of Ohio II, LLC (hereinafter "Republic"), is the owner and operator of a solid waste landfill known as Countywide Recycling and Disposal Facility. The landfill is located in Pike Township, Stark County, Ohio. Appellee Timothy Vandersall is its General Manager.
{¶3} Appellants, Richard and Linda Harvey, are members of Club 3000. Club 3000 was incorporated as a non-profit corporation in 1987, with a charter cancellation in 1997 and a re-instatement in 2002. Its purpose was to provide opposition to the landfill being operated by appellee Republic and its predecessor.
{¶4} After a permit was issued by the director of the Ohio Environmental Protection Agency to permit a solid waste disposal facility on the land now owned by appellee Republic, Club 3000 appealed such decision. In order to resolve such issue, a Stipulation and Settlement Agreement was entered into in October of 1990 between Club 3000 and appellee Republic's predecessor, Countywide Landfill, Inc. Such agreement stated, in relevant part, as follows:
{¶5}
{¶6} In 2003, appellee Republic filed an action against Club 3000, arguing that the Stipulation and Settlement Agreement had terminated. The Stark County Court of Common Pleas, pursuant to a Judgment Entry filed on September 29, 2004, in Case No. 2003CV02339, held that the Stipulation and Settlement Agreement remained in full force and effect and that Club 3000's designated representatives had the continuing right under the same to continue making on site inspections of the landfill.
{¶7} Appellants Richard and Linda Harvey have participated in on-site inspections of the landfill as designated representatives of Club 3000. Between the summer of 2004 and November 1, 2004, appellant Richard Harvey went out to inspect the landfill as a designated member of Club 3000 approximately sixteen to twenty times. He attempted to perform weekly inspections, but was not always able to do so. During the same period of time, deputies were called out to the landfill approximately fifteen times, primarily by appellee Republic, based on disagreements between Club 3000 and appellee Republic over Club 3000's right to inspect the property. On each of these occasions, the designated representatives of Club 3000 would leave the premises after being confronted by sheriff's deputies.
{¶8} On November 1, 2004, appellants arrived at the landfill in order to conduct an on-site inspection after giving 24 hours advance notice. Prior to visiting the landfill, appellant Richard Harvey had prepared a handwritten waiver that he and appellant Linda Harvey had signed in front of a notary. Appellant Richard Harvey testified during his deposition that he prepared the waiver because "[w]e have been told that we've had to sign that waiver so many times, and I just believe well maybe we can get this thing,.. resolved." Deposition of Richard Harvey at 37. After arriving at the landfill, appellant Richard Harvey signed in at the office and showed the handwritten waiver to Jim Steigerwald, a landfill employee. However, both Steigerwald and appellee Timothy Vandersall told appellant Richard Harvey that they did not accept handwritten notes and that appellants would have to sign a lengthy waiver and indemnification form prepared by appellee Republic. Because the attorneys for Club 3000 had advised appellants not to sign the waiver form because of the indemnification provisions contained in the same, appellants refused to sign appellee Republic's form and were told then that they had to reschedule their inspection.
{¶9} Appellant Richard Harvey, however, told appellee Vandersall and Steigerwald that appellants had made their appointment, signed in and were going to inspect the property. Appellant Richard Harvey then asked for an escort, as they had had in the past, although an escort was not required under the terms of the Settlement Agreement. After appellee Republic refused to provide one, appellants proceeded with their inspection.
{¶10} Appellee Timothy Vandersall then called the Stark County Sheriff's Department and requested assistance. Appellees, Deputies Darin Baad and Craig Kennedy of the Stark County Sheriff's Department, were dispatched to the landfill on a criminal trespassing complaint. The deputies were told that appellants had refused to sign the waiver form that the landfill was requiring all visitors to sign. When asked during his deposition whether, on November 1, 2004, he was aware of any agreement between the parties or of court order or statute that specified that appellants had to sign a waiver to inspect the landfill, Deputy Baad responded as follows: Deposition of Deputy Baad at 34. Appellants, when asked by the Deputies to leave the premises, refused to do so although they had left on previous occasions when asked.
{¶11} Appellees, Deputies Baad and Kennedy, at the direction of their supervisor, then issued appellants a summons for trespassing. While appellant Linda Harvey accepted her summons and was permitted to leave, appellant Richard Harvey refused the summons. Appellant Richard Harvey was then arrested and taken to the jail for booking. He was released that night on his own recognizance.
{¶12} Following a trial in Canton Municipal Court, appellants, on January 24, 2005, were found not guilty of criminal trespass.
{¶13} Subsequently, on October 31, 20061, appellants filed a complaint against appellees Republic and Timothy Vandersall, alleging causes of action for malicious prosecution, false arrest and intentional infliction of emotional distress. Appellants, in their complaint, also brought a separate count against appellees Deputy Craig Kennedy and Deputy Darin Baad, alleging violations of their civil rights under 42 US Code Section 1983.
{¶14} On July 13, 2007, appellees Deputy Baad and Deputy Kennedy filed a Motion for Summary Judgment. On the same date, appellees Republic and Timothy Vandersall filed a Joint Motion for Summary Judgment. As memorialized in a Judgment Entry filed on September 4, 2007, the trial court granted both Motions for Summary Judgment.
{¶15} Appellants now raise the following assignments of error on appeal:
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