Petition for Writ of Certiorari — Smith Land Company, et al., Petitioners v. Shawn A. Herhold, et al.
Supreme Court briefJan 10, 2020
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No. ________
IN THE
Supreme Court of the United States
SMITH LAND COMPANY, LLC, ET AL.,
Petitioners,
v.
SHAWN HERHOLD, ET AL.,
Respondents,
On Petition For A Writ of Certiorari
To The Court of Appeals For Summit County, Ohio
PETITION FOR WRIT OF CERTIORARI
Warner Mendenhall (0070165)
Counsel of Record
Law Offices of Warner Mendenhall
190 North Union St., 201
Akron, Ohio 44304
(330) 535-9160
warner@warnermendenhall.com
Counsel for Petitioners
i
QUESTIONS PRESENTED FOR REVIEW
1. Whether a state, which lacked stand-alone
jurisdiction under the Clean Water Act, 33 U.S.C.
1344(g), at the time 0.014 of an acre was
overfilled, can enforce a United States Army
Corps of Engineers permit issued in April 2000 to
fill isolated intrastate wetlands originating from
a nonpoint source, or, does such enforcement
violate the Sixth Amendment’s Supremacy
Clause and the Clean Water Act.
2. Whether the failure to give the property owner
who filled the property, notice and an
opportunity to be heard on the state’s claim of
overfill, violates the Fourteenth
Amendment’s Due Process Clause.
ii
PARTIES TO THE PROCEEDING
The parties to the judgment from which
review is sought are Smith Land Co., Inc. and
Robert G. Smith.
Respondents are Shawn Herhold and
Malavanh Herhold, nka, Malavanh Rassovong.
CORPORATE DISCLOSURE STATEMENT
Smith Land Company, LLC is an Ohio
Corporation with no parent corporation or shares
held by a publicly traded company.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .................................. i
PARTIES TO THE PROCEEDING ...................... ii
CORPORATE DISCLOSURE STATEMENT....... ii
TABLE OF CONTENTS ...................................... iii
TABLE OF AUTHORITIES .................................. v
PETITION FOR WRIT OF CERTIORARI ........... 1
OPINIONS BELOW .............................................. 1
JURISDICTION .................................................... 2
CONSTITUIONAL PROVISIONS INVOLVED .. 2
STATUTORY PROVISION INVOLVED .............. 2
INTRODUCTION .................................................. 5
STATEMENT OF THE CASE .............................. 6
I. Factual Background ........................................ 6
II. State Court Procedure ................................... 8
REASONS FOR GRANTING THE PETITION . 10
I. The Decision Below Raises Important
Questions Under The Supremacy Clause Of The
Sixth Amendment................................................ 10
A. The decision below wrongly allowed the
state to enforce a U.S. Army Corps of Engineers
iv
permit to fill isolated intrastate wetlands, after this
court held in Solid Waste Agency of Northern Cook
County v. Army Corps of Engineers, 531 U.S. 159
(2001), that the U.S. Army Corps of Engineers
exceeded its statutory authority when it required a
permit to fill isolated intrastate wetlands.......... 10
B. The decision below wrongly allowed the
state to enforce A U.S. Army Corps of Engineers
permit to fill isolated intrastate wetlands, when, at
the time the 404 permit was issued and at the time
the 0.014 acre of isolated intrastate wetlands were
filled, the state had not submitted a program to
administer its own permitting program pursuant to
33 U.S.C. 1344(g) ................................................. 13
II. The Decision Below Raises An Important
Question Under The Due Process Clause As To
Whether The Failure Of The State To Give A
Property Owner Who Filled Property, Notice And
An Opportunity To Be Heard On The State’s Claim
Of Overfill, Violates The Fourteenth Amendment’s
Due Process Clause. ............................................ 14
CONCLUSION .................................................... 18
APPENDIX:
APPENDIX A: Order, Ohio Supreme Court
Declining Jurisdiction filed October 15, 2019 .. A-1
APPENDIX B: Opinion, Summit County Court of
Appeals filed June 19, 2019, ........................... A-20
APPENDIX C: Order, Summit County Common
Pleas Court filed December 29, 2019, ........... A-102
v
APPENDIX D: Judgment, Summit County
Common Pleas Court, filed September 19, 2019 ....
......................................................................... A-104
APPENDIX E: Opinion, Summit County Court of
Appeals filed July 13, 2016, ........................... A-114
APPENDIX F:
Judgment, Summit County
Common Pleas Court, filed November 4, 2015
......................................................................... A-140
APPENDIX G:
Judgment, Summit County
Common Pleas Court, filed May 20, 2014 ..... A-146
APPENDIX H: U.S. Army Corps permit dated
April 14, 2000.................................................. A-153
APPENDIX I: Quit Claim Deed, Parcel C .... A-158
APPENDIX J: Department of the Army Letter,
February 4, 2004......................................... App-164
TABLE OF AUTHORITIES
Cases
Page
Brown v. Board of Education, 347 U.S. 483 (1954).
.............................................................................. 12
Cooper v. Aaron, 358 U.S. 1 (1958). ................... 12
Fuentes v. Shevin, 407 U.S. 67 (1972) ................ 15
Marbury v. Madison, 5 U. S. 177 (1803)............. 12
vi
Shelly v. Kraemer, 334 U.S. 1 (1948) .................. 16
Solid Waste Agency of Northern Cook County v.
Army Corps of Engineers, 531 U.S. 159 (2001) ......
.............................................................5, 6, 9, 10, 13
United States v. Appalachian Elec. Power Co., 311
U.S. 377 (1940) ...................................................... 5
United States Army Corps of Engineers v. Hawkes
Co., Inc., 136 S. Ct. 1807 (2016) .......................... 14
Virginia v. Rives, 100 U.S. 313 (1880) ................ 16
Constitutional Provisions
U.S. Const. amend. VI, cl.2 ........................2, 10, 13
U.S. Const. amend. XIV, § 1 ......................2, 14, 16
Codes and Statutes
Clean Water Act ................. 5, 10, 11, 12, 13, 14, 16
28 U.S.C. § 1257(a) ................................................ 2
33 U.S.C.§ 1319 ................................................... 16
33 U.S.C. § 1344 .................................................. 10
33 U.S.C. § 1344(a) .......................................... 2, 11
33 U.S.C. § 1344(e)(1) ............................................ 3
33 U.S.C. § 1344(g) ................................................ 3
33 U.S.C. § 1344(s)(1) ............................................ 3
33 U.S.C. § 1344(s)(2) ............................................ 4
vii
33 U.S.C. § 1362(7) ................................................ 4
33 U.S.C. § 1362(12) .............................................. 4
33 U.S.C. § 1362(14) .............................................. 4
Ohio R.C. § 6111.06 ............................................ 16
1
PETITION FOR WRIT OF CERTIORARI
Smith Land Company and Robert G. Smith
request this Court issue a writ of certiorari to review
the judgment of Ohio’s Ninth District Court of
Appeals.
OPINIONS BELOW
The Ohio Supreme Court’s Order declining to
hear an appeal in Herhold v. Smith Land Co. is
10/15/2019 Case Announcements, 2019-Ohio-4211,
and is attached as Appendix (App.) A. The opinion
of Ohio’s Ninth District Court of Appeals, is
published as Herhold v. Smith Land Company, LLC,
2019-Ohio-2418, CA 28915, and is attached as App.
B. Summit County Court of Common Pleas Order,
denying judgment notwithstanding the verdict is
unpublished. It is attached here as App. C. The
Summit County Court of Common Pleas judgment
following retrial, is attached here as App. D. Ohio’s
Ninth District Court of Appeals opinion is published
as Herhold v. Smith Land Company, LLC, 2016Ohio-4939, CA 28032, and is attached as App. E.
The Summit County Court of Common Pleas
judgment granting a new trial is unpublished and is
attached as App. F. The May 2014 Judgment of the
Summit County Court of Common Pleas is
unpublished. It is attached as App. G.
2
JURISDICTION
On October 15, 2019, the Ohio Supreme Court
declined to hear an appeal from the judgment
entered by Ohio’s Ninth District Court of Appeals.
Petitioners request a writ of certiorari pursuant to
28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISIONS INVOLVED
The Sixth Amendment’s second clause
provides: “This Constitution, and the laws of the
United States which shall be made in pursuance
thereof; and all treaties made, or which shall be
made, under the authority of the United States,
shall be the supreme law of the land; and the judges
in every state shall be bound thereby, anything in
the Constitution or laws of any State to the contrary
notwithstanding.”
Section 1 of the Fourteenth Amendment to
the U.S. Constitution provides: “No state shall make
or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of
the laws.”
STATUTORY PROVISIONS INVOLVED
33 U.S.C. § 1344 (a) provides in relevant part:
“The Secretary may issue permits, after notice and
opportunity for public hearings for the discharge of
dredged or fill material into the navigable waters at
specified disposal sites.”
3
33 U.S.C. § 1344 (e)(1) provides: “In carrying
out his functions relating to the discharge of
dredged or fill material under this section,
the Secretary may, after notice and opportunity for
public hearing, issue general permits on a
State, regional, or nationwide basis for any category
of activities involving discharges of dredged or fill
material if the Secretary determines that the
activities in such category are similar in nature, will
cause only minimal adverse environmental effects
when performed separately, and will have only
minimal cumulative adverse effect on the
environment. Any general permit issued under this
subsection shall (A) be based on the guidelines
described in subsection (b)(1) of this section, and (B)
set forth the requirements and standards which
shall apply to any activity authorized by such
general permit.”
33 U.S.C. §1344 (g)(1), in relevant part
provides: “The Governor of any State desiring to
administer its own individual and general permit
program for the discharge of dredged or fill material
into the navigable waters … within its jurisdiction
may submit to the Administrator a full and complete
description of the program it proposes to establish
and administer under State law or under an
interstate compact. In addition, such State shall
submit a statement from the attorney general …
provide adequate authority to carry out the
described program.”
33 U.S.C. §1344 (s)(1) provides: “Whenever on
the basis of any information available to him
the Secretary finds that any person is in violation of
any condition or limitation set forth in a permit
4
issued by the Secretary under this section,
the Secretary shall issue an order requiring
such person to comply with such condition or
limitation, or the Secretary shall bring a civil action
in accordance with paragraph (3) of this subsection.”
33 U.S.C. §1344 (s)(2) provides in relevant
part “Any order issued under this subsection shall
be by personal service and shall state with
reasonable specificity the nature of the violation,
specify a time for compliance, not to exceed thirty
days, which the Secretary determines is reasonable,
taking into account the seriousness of the violation
and any good faith efforts to comply with applicable
requirements.
33 U.S.C. §1362 (7) defines “’navigable
waters’” as “waters of the United States, including
the territorial seas.”
33 U.S.C. §1362 (12) defines “’a discharge of a
pollutant’” as “any addition of any pollutant to
navigable waters from any point source.”
33 U.S.C. §1362 (14) defines “’a point source’”
in relevant part as “any discernible, confined, and
discrete conveyance … from which pollutants are or
may be discharged.”
5
INTRODUCTION
On January 9, 2001, this Court limited the
U.S. Army Corps of Engineers jurisdiction over
isolated intrastate wetlands, in Solid Waste Agency
of Northern Cook County v. Army Corps of
Engineers, 531 U.S. 159 (2001), (“SWANCC”) as the
U.S. Army Corps of Engineers had interpreted §
404(a) of the Clean Water Act to confer federal
jurisdiction over an abandoned sand and gravel pit.
This Court recognized there were significant
constitutional questions raised by the application of
the Army Corps regulations. This Court noted that
“the term ‘navigable’ has at least the import of
showing us what Congress had in mind as its
authority for enacting the CWA: its traditional
jurisdiction over waters that were or had been
navigable in fact or which could reasonably be so
made. See, e. g., United States v. Appalachian Elec.
Power Co., 311 U.S. 377, 407-408 (1940).” SWANCC,
531 U.S. at 172.
This was refreshing news to property owners
seeking to use their property without having to pay
for the right to fill isolated intermittent
wetlands. However, it was short lived, as
state’s asserted jurisdiction over the isolated
wetlands, even when there was no regulatory
framework to do so. Certiorari is warranted in
this case to reaffirm that the people can rely on this
Court’s decisions and the laws of the United
States, as they are the supreme law of the land.
6
STATEMENT OF THE CASE
I.
FACTUAL BACKGROUND
This case arises from a dispute over the sale
of one single family lot. Smith Land Company
bought 10 acres of land in Fairlawn, Ohio intending
to split it into single family lots. As part of the plat
approval process the city required Smith Land
Company to obtain a wetland delineation. The
property was delineated as containing isolated
wetlands based on plant life. Fairlawn required
Smith Land Company to obtain a permit to fill some
of the wetlands and to place a restriction of record
on the plat stating that it contained jurisdictional
waters of the United States. The plat was filed of
record and included 10 acres of land with 9 building
lots and Block A.
The lot respondents purchased was originally
part of Block A. Fairlawn had permitted Smith
Land Company to do a simple 3 lot split of Block A
by metes and bounds description. Part of the lot was
to be filled under the NWP which was obtained in
April 2000 and which expired in February 2002. The
SWANCC case was decided on January 9, 2001.
In February 2001 a contractor doing road
work for Fairlawn dumped fill on the land which had
been Block A. Based on the SWANCC decision and
Ohio’s lack of wetlands regulation Smith Land
Company allowed overfill of 5 feet by 120 feet to
remain on the north property line.
7
On July 17, 2001, Ohio enacted regulations
governing the fill of isolated wetlands.
When Respondents offered to purchase the
property as-is, in July of 2002, they were told the
property contained fill and were given a property
disclosure which stated that the property had been
designated as a federal or state wetland.
Respondents were also given 60 days to determine
whether the property was suitable for their intended
use.
In November 2003 the City of Fairlawn
contacted the U.S. Army Corps of Engineers to ask
if future owners of the 3 Block A lots must acquire
authorization from the Army Corps to impact
wetlands on their property. The Army Corps
responded in February 2004, stating a recent site
visit determined that this wetland system is
surrounded by upland and does not present a
significant nexus to a water of the United States and
a Department of the Army permit was not required
for impacts to this isolated wetland.
More than 4 years after the lot was filled and
2 and a half years after it was sold, Fairlawn
informed Respondents it would not issue a building
permit without Ohio EPA approval of the excess fill
or the removal of the fill. Respondents testified that
they were required to remove the overfill to get a
building permit.
After the fill was removed, on October 24,
2005, the Ohio EPA issued a letter to Respondents
which stated that Smith Land Company had failed
to comply with the Army Corps permit and that the
8
unauthorized fill located on the property had been
removed. Neither Fairlawn nor the Ohio EPA gave
Smith Land Company notice or an opportunity to be
heard regarding the claim that the lot was filled in
violation of the USACE permit.
II.
STATE COURT PROCEDURE
On May 9, 2008, Shawn and Malavanh
Herhold, sued Smith Land Company, LLC and
Robert Smith for breach of contract and fraud. The
Herholds alleged in their complaint that Smith Land
Company illegally filled the lot sold to them in
violation of a United States Army Corps of
Engineers permit.
At the first trial, in 2014, Lee Ann Robinette,
Regulatory Project Manager, Army Corps of
Engineers, testified there was no violation of the
permit. Nevertheless, the jury found the Company
and Smith breached the contract, committed fraud,
and awarded punitive damages.
App. G. On
November 4, 2015, the trial court entered a
final judgment granting Smith Land Company and
Smith a new trial. App. F.
On July 13, 2016, Ohio’s Ninth District
Court of Appeals Appeals upheld the trial court’s
order of a new trial in Herhold v. Smith Land
Company, LLC, 2016-Ohio-4939, CA 28032, App. E.
On July 18, 2017, a second trial was held.
Lee Ann Robinette testified, that the purpose of
her site visit in early 2004 was to determine if the
land was jurisdictional waters of the U.S.. She
stated that the
9
2001 SWANCC decision indicated that there must a
surface connection for waters to be considered
under federal jurisdiction. From January 2001 on, if
it was determined land was isolated, the Army
Corps lacked jurisdiction.
Robinette further
testified she was unaware of her office issuing any
violation of the permit. App. A-14 ¶ 17.
The 2nd jury found Smith Land Company and
Smith breached the contract, committed fraud, and
awarded punitive damages. The trial court granted
respondents judgment. App. A-44. The trial court also
denied a motion for judgment notwithstanding the
verdict and for a new trial. App. A-41.
On
December 29, 2017, Smith Land Company and
Smith appealed.
The Court of Appeals affirmed the judgment
below. The Court stated that Fairlawn determined
the restriction on the plat ran with the land until
removed. App. A - 2 0 . The Court further stated
“Notably, block A, where the Property would
ultimately be, was composed of wetlands that were
not designated as ‘to be filled.’” App. A-13.
However, the Army Corps permit attached at App.
H shows the Herhold lot having substantial fill. The
Court also found that the plat map that designates
the splitting of Block A includes what is labeled a
“Note” which designates the lands delineated are
jurisdictional waters of the United States. App. A-15.
However, there was no recorded plat for the Block
A split, rather there were 3 deeds filed of record
with metes and bounds descriptions. See App. A-68 to
A-70.
10
The Ohio Supreme Court declined to hear a
discretionary appeal. App. A-4.
REASONS FOR GRANTING THE PETITION
I.
The Decision Below Raises Important
Questions Under the Supremacy Clause
Of The Sixth Amendment.
A.
The decision below wrongly allowed the
state to enforce a U.S. Army Corps of
Engineers permit to fill isolated intrastate
wetlands, after this court held in Solid Waste
Agency of Northern Cook County v. Army
Corps of Engineers, 531 U.S. 159 (2001) that
the U.S. Army Corps of Engineers exceeded
its statutory authority when it required a
permit to fill isolated intrastate wetlands.
For many years, The U. S. Army Corps of
Engineers (USACE) claimed authority, under the
Clean Water Act, over property owners land when
there was isolated intermittent puddling. In Solid
Waste Agency of Northern Cook County v. Army
Corps of Engineers, (SWANCC), the U.S. Supreme
Court enforced the Clean Water Act’s limitation on
jurisdiction. 531 U.S. 159 (2001). SWANCC is a
consortium of suburban Chicago municipalities,
which selected as a solid waste disposal site an
abandoned sand and gravel pit with excavation
trenches that had evolved into permanent and
seasonal ponds. The Army Corps asserted
jurisdiction over the sand and gravel pit ponds.
This Court refused to extend the Army Corps’
11
jurisdiction to such isolated waters. This Court
held Clean Water Act jurisdiction was limited to
waters that were or had been navigable or which
could reasonably be so made.
The U.S. Army Corps of Engineers had
exceeded its jurisdiction by regulating isolated
intrastate waters, originating from a nonpoint
source. The laws of the United States establish, in
Section 404 of the Clean Water Act, a program to
regulate the discharge of dredged or fill material
into waters of the United States, including
wetlands. The Secretary of the Army may issue
general permits on a State, regional, or nationwide
basis for any category of activities involving
discharges of dredged or fill material. 33 U.S.C. §
1344.
The
Clean
Water
Act
provides
“[t]he Secretary may issue permits, after notice and
opportunity for public hearings for the discharge of
dredged or fill material into the navigable waters at
specified disposal sites.” 33 U.S.C. § 1344 (a).
“Navigable waters” are defined as “waters of
the United States, including the territorial seas.” 33
U.S.C. § 1362 (7). A “point source” is defined as “any
discernible, confined, and discrete conveyance…
from which pollutants are or may be discharged.”
The land on Brunsdorf Road in Fairlawn
Ohio, is uplands and there is an absence of
hydrological connection according to the Army
Corps. App. H. There are no navigable waters.
There is no point source. The U.S. Army Corps of
Engineers exceeded its authority under the Clean
12
Water Act. These facts were known by the state
courts, however, they failed to recognize that the
U.S. Army Corps of Engineers lacked jurisdiction
over the land on Brunsdorf Road under the Clean
Water Act.
Upon issuance of this Court’s decision, on January
9, 2001, the SWANCC decision was the supreme law of
the land. “Article VI of the Constitution makes the
Constitution the ‘supreme Law of the Land.’ In 1803,
Chief Justice Marshall, speaking for a unanimous Court,
referring to the Constitution as ‘the fundamental and
paramount law of the nation, declared in the notable case
of Marbury v. Madison, 5 U. S. 177, that ‘It is
emphatically the province and duty of the judicial
department to say what the law is.’ This decision declared
the basic principle that the federal judiciary is supreme in
the exposition of the law of the Constitution, and that
principle has ever since been respected by this Court and
the Country as a permanent and indispensable feature of
our constitutional system.” Cooper v. Aaron, 358 U.S. 1,
18 (1958). The court in Cooper stated that “[t]he
principles announced in that decision (Brown v. Board of
Education) and the obedience of the States to them,
according to the command of the Constitution, are
indispensable for the protection of the freedoms
guaranteed by our fundamental charter for all of us. Our
constitutional ideal of equal justice under law is thus
made a living truth.” 358 U.S. 1, 20-21. State courts must
uphold the supreme law.
B.
The decision below wrongly allowed the
state to enforce a U.S. Army Corps of
Engineers permit to fill isolated intrastate
wetlands, when, at the time the permit was
13
issued and when the 0.014 acre of isolated
intrastate wetlands were filled, the state had
no permitting program under 33 U.S.C.
1344(g).
The Clean Water Act establishes a procedure
for states to follow to administer a state program to
enforce the Clean Water Act. 33 U.S.C. §1344
(g)(1).
The Clean Water Act is also a supreme law of
the land. The second clause of the Sixth Amendment
provides: “This Constitution, and the laws of the
United States which shall be made in pursuance
thereof… shall be the supreme law of the land; and
the judges in every state shall be bound thereby,
anything in the Constitution or laws of any State to
the contrary notwithstanding.”
Ohio courts cannot allow the Ohio EPA or
the City of Fairlawn to enforce a federal NWP when
the state lacked a program to administer the Clean
Water Act.
By the time the State of Ohio submitted a
program to administer a state program enforcing
the Clean Water Act, there was no longer a permit
to enforce, as this Court had decided in the
SWANCC limiting the Clean Water Act to waters
that were or had been navigable or which could
reasonably be so made. The State of Ohio could not
enforce the U.S. Army Corps of Engineers NWP 26
retroactively.
14
II.
The Decision Below Raises An
Important Question Under The Due
Process Clause As To Whether The
Failure Of The State To Give A Property
Owner Who Filled Property, Notice And
An Opportunity To Be Heard On The
State’s Claim Of Overfill, Violates The
Fourteenth Amendment’s Due Process
Clause.
Smith Land Company and Robert Smith,
believed that the U.S. Supreme Court decision in
SWANCC was the supreme law of the land; that the
Army Corps could not regulate the isolated wetlands
on Brunsdorf Road; and that the Army Corps had
exceeded its authority under the Clean Water Act
when it claimed jurisdiction over the isolated
wetlands on Brunsdorf Road in 1999. And, if they
were wrong, only the Army Corps of Engineers had
the authority to enforce its permit.
On February 4, 2004, the Army Corps issued
a letter, App. H, which stated that it had no
jurisdiction over the isolated wetlands of the three
residential lots on Brunsdorf Drive, in Fairlawn,
Ohio. This was a jurisdictional determination by
the Army Corps.
This Court has ruled on the meaning of such
a jurisdictional determination letters with United
States Army Corps of Engineers v. Hawkes Co., Inc.,
578 U.S. __, 136 S. Ct. 1807 (2016). The Court
stated that the definitive nature of approved JDs
also causes "direct and appreciable legal
15
consequences.” 136 S. Ct. 1807, 1816. (Citations
omitted.)
The Army Corps sent a copy of this letter to
one of the attorneys representing Smith Land
Company and Smith. Lee Ann Robinette,
Regulatory Project Manager U.S. Army Corps of
Engineers testified in the first trial that Smith
abided by the permit issued in April 2000 as far as
the U.S. Army Corps of Engineers was concerned
and the project has never been notified of a
violation.
Neither the Ohio EPA nor Fairlawn notified
Smith Land Company or Smith that the Ohio EPA
found a permit violation. Nor did they inform them
the City and State were taking enforcement action
for violation of the NWP.
“The constitutional right to be heard is a
basic aspect of the duty of government to follow a
fair process of decision making when it acts to
deprive a person of his possessions. The purpose of
this requirement is not only to ensure abstract fair
play to the individual. Its purpose, more
particularly, is to protect his use and possession of
property from arbitrary encroachment -- to
minimize substantively unfair or mistaken
deprivations of property… So viewed, the
prohibition against the deprivation of property
without due process of law reflects the high value,
embedded in our constitutional and political
history, that we place on a person's right to enjoy
what is his, free of governmental interference.”
Fuentes v. Shevin, 407 U.S. 67, 80–81 (1972).
16
Due process protections are built into the
Clean Water Act and Ohio’s EPA regulations. The
CWA mandates notice and an opportunity to be
heard if the Army Corps claims a permit violation
and includes a right to appeal an adverse decision.
33 U.S.C.§ 1319. Ohio’s Revised Code § 6111.06,
provides similar protections.
State courts must uphold the supreme law of
the land. Section I of the 14th Amendment, U.S.
Constitution provides that “No state shall make or
enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to
any person within its jurisdiction the equal
protection of the laws.”
The U.S. Supreme Court held, in Shelly v.
Kraemer, 334 U.S. 1, 7 (1948):
That the action of state courts and
judicial officers in their official
capacities is to be regarded as action
of the State within the meaning of the
Fourteenth Amendment is a
proposition which has long been
established by decisions of this Court.
That principle was given expression in
the earliest cases involving the
construction of the terms of the
Fourteenth Amendment. Thus, in
Virginia v. Rives, 100 U.S. 313, 318
(1880), this Court stated: It is
doubtless true that a State may act
17
through different agencies, either by
its legislative, its executive, or its
judicial authorities, and the
prohibitions of the amendment extend
to all action of the State denying equal
protection of the laws, whether it be
action by one of these agencies or by
another.
Ohio’s state courts failed to uphold the Army
Corps of Engineers determination there was no
violation of the permit it issued.
18
CONCLUSION
The Court should grant the Petition for Writ of
Certiorari and vacate the lower courts’ decisions.
Respectfully submitted,
/s/Warner Mendenhall (0070165)
Counsel of Record
Law Offices of Warner Mendenhall
190 North Union St., 201
Akron, Ohio 44304
(330) 535-9160
warner@warnermendenhall.com
Counsel for Petitioners
A-1
APPENDIX A
The Supreme Court of Ohio
CASE ANNOUNCEMENTS
October 15, 2019
10/15/2019 Case Announcements,
2019-Ohio-4211.
___________________________________________
Motions and Procedural Rulings
2019-1135. State v. McCormick.
Summit App. No. 29121, 2019-Ohio-2204. On
motion for leave to file delayed appeal. Motion
denied.
Kennedy, French, and Donnelly, JJ., dissent.
2019-1151. State v. Davenport.
A-2
Cuyahoga App. No. 106143, 2018-Ohio-2933.
On motion for leave to file delayed appeal.
Motion denied.
Fischer, J., dissents.
2019-1152. State v. Hodson.
Franklin App. No. 18AP-242. On motion for
leave to file delayed appeal. Motion denied.
Fischer and Donnelly, JJ., dissent. French, J.,
not participating.
2019-1167. State v. Freeman.
Cuyahoga App. No. 106363, 2018-Ohio-2936.
On motion for leave to file delayed appeal.
Motion denied.
Donnelly, J., dissents. Stewart, J., not
participating.
A-3
2019-1174. State v. Stefka.
Monroe App. No. 10 MO 7, 2012-Ohio-3004.
On motion for leave to file delayed appeal.
Motion denied.
Donnelly, J., dissents.
2019-1188. State v. Ross.
Ottawa App. No. OT-19-008. On motion for
leave to file delayed appeal. Motion granted.
Appellant shall file a memorandum in support
of jurisdiction within 30 days.
French and DeWine, JJ., dissent.
APPEALS ACCEPTED FOR REVIEW
2019-0594. State v. Groce.
Franklin App. No. 18AP-51, 2019-Ohio-1007.
Appeal accepted, cross-appeal accepted on
proposition of law No. I, and cause held for the
A-4
decision in 2019-0651, State v. Dent, and 20190654, State v. Walker.
Kennedy, French, and Donnelly, JJ., would not
accept the cross-appeal.
2019-0951. Corder v. Ohio Edison Co.
Harrison App. No. 18 HA 0002, 2019-Ohio2639.
O’Connor, C.J., and Fischer and Donnelly, JJ.,
dissent.
2019-1123. Gerrity v. Chervenak.
Guernsey App. No. 18 CA 26, 2019-Ohio-2771.
O’Connor, C.J., and DeWine and Stewart, JJ.,
dissent.
APPEALS NOT ACCEPTED FOR REVIEW
2019-0668. Jones v. Wainwright.
A-5
Marion App. No. 9-18-28.
2019-0717. State v. Robinson-Bey.
Summit App. No. 28740, 2018-Ohio-5224.
2019-0891. State v. Luebrecht.
Putnam App. No. 12-18-02, 2019-Ohio-1573.
2019-1012. Heimberger v. Agnew.
Lake App. No. 2019-L-035, 2019-Ohio-1954.
2019-1015. State v. Suntoke.
Muskingum App. No. CT2018-0074, 2019Ohio-2312.
2019-1016. Highland Hts. v. C.C.
Cuyahoga App. No. 107703, 2019-Ohio-2333.
A-6
2019-1019. State v. Bevins.
Hamilton App. No. C-190218. Appellee’s
motion to dismiss fails for want of four votes.
O’Connor, C.J., would reject the appeal as
moot and would grant the motion to dismiss.
French, J., would grant the motion to dismiss.
Stewart, J., would reject the appeal as moot
and would deny the motion to dismiss.
Fischer and DeWine, JJ., not participating.
2019-1025. King v. Ohio Dept. of Job & Family
Servs.
Summit App. No. 29198, 2019-Ohio-2989.
2019-1026. State v. Nagy.
Cuyahoga App. No. 105935, 2018-Ohio-1513.
Donnelly, J., dissents.
A-7
2019-1034. State v. Cobb.
Cuyahoga App. No. 106928, 2019-Ohio-2320.
Donnelly, J., dissents.
2019-1035. Kilburn v. Graham.
Monroe App. No. 18 MO 0022, 2019-Ohio2695.
Kennedy, J., dissents.
2019-1036. Hunter v. Rhino Shield.
Franklin App. No. 18AP-244, 2019-Ohio-1422
French, J., not participating.
2019-1037. In re Estate of Weiner.
Montgomery App. No. 27278, 2019-Ohio-2354.
A-8
2019-1038. State v. Moore.
Trumbull App. No. 2018-T-0056, 2019-Ohio2512.
2019-1040. In re Estate of Jenkins.
Cuyahoga App. No. 107343, 2019-Ohio-2112.
2019-1042. State v. Thomas.
Williams App. No. WM-18-005, 2019-Ohio2654.
2019-1044. Trumbull Twp. Bd. of Trustees v.
Rickard.
Ashtabula App. No. 2017-A-0048, 2019-Ohio2502.
2019-1045. Paczewski v. Antero Resources
Corp.
A-9
Monroe App. No. 18 MO 0016, 2019-Ohio2641.
French, J., dissents and would accept the
appeal on proposition of law No. I. Kennedy
and Fischer, JJ., dissent.
2019-1047. Herhold v. Smith Land Co.
Summit App. No. 28915, 2019-Ohio-2418.
Kennedy, J., dissents.
2019-1057. State v. Reid.
Hamilton App. No. C-170697, 2019-Ohio-1542.
2019-1059. State v. Peffer.
Cuyahoga App. No. 108714.
Fischer, DeWine, and Stewart, JJ., dissent.
2019-1060. State v. Hager.
A-10
Licking App. No. 18-CA-102, 2019-Ohio-2552.
2019-1062. State v. Walston.
Butler App. No. CA2018-04-068, 2019-Ohio1699.
2019-1063. State v. Blevins.
Pickaway App. No. 18CA2, 2019-Ohio-2744.
2019-1064. State v. Curtis.
Muskingum App. No. CT2019-0001, 2019Ohio-2587.
2019-1065. Cleveland v. Dancy.
Cuyahoga App. No. 107241, 2019-Ohio-2433.
2019-1066. Lampela v. Put-In-Bay.
A-11
Ottawa App. No. OT-18-018, 2019-Ohio-2476.
2019-1068. State v. Dangerfield.
Hamilton App. No. C-180057.
Donnelly, J., dissents and would accept the
appeal on proposition of law No. V and appoint
counsel.
2019-1069. State v. Neil.
Franklin App. Nos. 18AP-609 and 18AP-610,
2019-Ohio-2529.
French, J., not participating.
2019-1073. State v. Carosiello.
Columbiana App. No. 18 CO 0018, 2019-Ohio2705.
2019-1078. State v. Kinney.
A-12
Monroe App. No. 18 MO 0013, 2019-Ohio2726.
2019-1079. State v. Peete.
Trumbull App. No. 2018-T-0094, 2019-Ohio2513.
Donnelly, J., dissents and would appoint
counsel.
2019-1082. Delaware Golf Club, L.L.C. v.
Dornoch Estates Homeowners Assn., Inc.
Delaware App. No. 19 CAE 04 0027.
2019-1083. State v. Smith.
Montgomery App. No. 28083, 2019-Ohio-2467.
2019-1084. State v. Graffius.
Columbiana App. No. 18 CO 0008, 2019-Ohio2714.
A-13
2019-1089. Lloyd v. Rogerson.
Wayne App. No. 18 AP 0024, 2019-Ohio2606.
Appellant’s motion for default judgment
denied.
2019-1090. Lloyd v. Cleveland Clinic Found.
Cuyahoga App. No. 107214, 2019-Ohio-1885.
2019-1095. State v. Polizzi.
Lake App. Nos. 2018-L-063 and 2018-L-064,
2019-Ohio-2505.
Kennedy and DeWine, JJ., dissent.
2019-1096. IUOE, Local 20 v. Hamilton.
Butler App. No. CA2018-10-195, 2019-Ohio2491.
A-14
Donnelly, J., dissents. Kennedy, J., not
participating.
2019-1099. Columbus v. Cochran.
Franklin App. No. 18AP-748, 2019-Ohio-2583.
2019-1107. State v. Biven.
Licking App. No. 2018 CA 0082, 2019-Ohio2551.
2019-1111. Horstman v. Fanning.
Putnam App. No. 12-18-14, 2019-Ohio-2483.
2019-1120. State v. McGowan.
Stark App. No. 2018CA00075, 2019 -Ohio2554.
2019-1122. State v. Hall.
A-15
Trumbull App. No. 2017-T-0032, 2018-Ohio1676.
2019-1127. State v. Sanders.
Cuyahoga App. No. 106744, 2019-Ohio-2566.
Fischer, J., dissents and would accept the
appeal on proposition of law No. I. Stewart, J.,
not participating.
2019-1145. State v. Cody.
Cuyahoga App. Nos. 107595, 107607, and
107664, 2019-Ohio-2824.
2019-1146. State v. McNeal.
Montgomery App. No. 28123, 2019-Ohio-2941.
2019-1149. State v. Ellis.
Hamilton App. No. C-180331, 2019-Ohio-3164.
A-16
2019-1176. State v. Mills.
Summit App. No. 28954, 2019-Ohio-774.
2019-1186. State v. Gomez.
Lucas App. No. L-17-1130, 2019-Ohio-576.
Donnelly, J., dissents.
2019-1195. State v. Erker.
Cuyahoga App. No. 107790, 2019-Ohio-3185.
2019-1199. State v. Heard.
Cuyahoga App. No. 107777, 2019-Ohio-2920.
RECONSIDERATION OF PRIOR
DECISIONS
2019-0222.
Wildcat
Drilling,
L.L.C.
v.
Discovery Oil & Gas, L.L.C.
Mahoning App. No. 17 MA 0018, 2018-Ohio-
A-17
5391. Reported at 156 Ohio St.3d 1488, 2019Ohio-3332, 129 N.E.3d 452. On motion for
reconsideration. Motion granted. Appellant
shall file its brief within seven days, and the
case shall proceed in accordance with the Rules
of Practice of the Supreme Court of Ohio.
O’Connor, C.J., and DeWine, J., dissent.
2019-0682. State v. Naff.
Miami App. No. 2018-CA-15, 2019-Ohio-1261.
Reported at 156 Ohio St.3d 1476, 2019-Ohio3148, 128 N.E.3d 233. On motion for
reconsideration. Motion denied.
Donnelly, J., dissents.
2019-0716. Petruziello v. ARIS Teleradiology
Professional Corp.
Cuyahoga App. No. 107432, 2019-Ohio-1347.
Reported at 156 Ohio St.3d 1477, 2019-Ohio-
A-18
3148, 128 N.E.3d 239. On motion for
reconsideration. Motion denied.
Kennedy, J., dissents.
2019-0733. State v. Davic.
Franklin App. No. 18AP-569, 2019-Ohio-1320.
Reported at 156 Ohio St.3d 1478, 2019-Ohio3148, 128 N.E.3d 241. On motion for
reconsideration. Motion denied.
2019-0791. State v. Shine-Johnson.
Franklin App. No. 17AP-194, 2018-Ohio-3347.
Reported at 156 Ohio St.3d 1476, 2019-Ohio3148, 128 N.E.3d 238. On motion for
reconsideration. Motion denied.
2019-0798. State v. Scofield.
A-19
Fairfield App. No. 18-CA-39, 2019-Ohio-375.
Reported at 156 Ohio St.3d 1476, 2019-Ohio3148,
128
N.E.3d
231.
On
motion
for
reconsideration. Motion denied. Appellant’s
emergency motion for stay pending appeal
denied.
Donnelly, J., dissents and would grant the
motion for reconsideration and appellant’s
motion for stay pending appeal.
A-20
APPENDIX B
STATE OF OHIO
COUNTY OF SUMMIT
IN THE COURT OF APPEALS
C.A. No. 28915
NINTH JUDICIAL DISTRICT
SHAWN A. HERHOLD, et al.
Appellees
v.
THE SMITH LAND COMPANY, et al.
Appellants
APPEAL FROM JUDGMENT ENTERED IN
THE COURT OF COMMON PLEAS,
COUNTY OF SUMMIT OHIO
CASE No. CV2008 05 3634
DECISION AND JOURNAL ENTRY
A-21
Dated: June 19, 2019
CARR, Judge
{¶1} Defendants-Appellants Smith Land
Company, LLC ("Smith Land") and Robert G.
Smith appeal from the judgments of the Summit
County Court of Common Pleas. This Court
affirms.
I.
{¶2} This appeal stems from the sale of a
vacant lot on Brunsdorf Road ("the Property") in
Fairlawn. In July 2002, then husband and wife,
Plaintiffs-Appellees Shawn Herhold and
Malavanh Herhold, nka Rassavong (collectively
"the Herholds") purchased the Property from
Smith Land and its president and sole
shareholder, Robert Smith (collectively, "the
Defendants"). The deed for the Property was
A-22
recorded in September 2002. According to the
Herholds, the Defendants represented to them
that they would be able to build a home on the
Property. Later, however, when the Herholds
attempted to sell the Properly, they discovered
that the City of Fairlawn would not issue a
building permit for the Property absent
permission from the Ohio Environmental Protection
Agency ("Ohio EPA"). In order to satisfy Ohio EPA,
the Herholds removed numerous truckloads of fill
dirt from the north boundary of the Property in order
to restore the wetlands that were previously there.
Such action created a ditch and decreased the
buildable surface area of the Property. After the
alterations to the Property, the Herholds were
unable to sell it.
{¶3}
The Hcrholds brought suit against the
Defendants, and others who are not relevant to this
A-23
appeal, for breach of contract, breach of the warranty
of title, fraud, misrepresentation, and fraudulent
concealment/inducement. The Herholds sought
compensatory damages, punitive damages, interest,
and attorney fees.
{¶4} Ultimately, the matter proceeded to a
jury trial. The jury found in favor of the Herholds
and awarded them $55,000 on their breach of
contract claim, $65,000 on their fraud claims, and
$35,000 in punitive damages. Additionally, the jury
determined that the Herholds should be awarded
their attorney fees. The Herholds were awarded
$39,744 in attorney fees,
$32,407.82 in prejudgment interest on their contract
claim, and $36,854.91 in prejudgment interest on
their fraud claims.
A-24
{¶5}
The Defendants filed a motion for
judgment notwithstanding the verdict, or in the
alternate, a motion for new trial. In the end, a new
trial was ordered on all of the Herholds' claims.1
{¶6} The Defendants then moved to reopen
discovery, however, the request was denied. The
matter proceeded to a second jury trial. The jury
again found in favor of the Herholds. The Herholds
were awarded $36,700 on the breach of contract
claim, $26,485.07 in prejudgment interest on the
breach of contract claim, $5,300 on the fraud
claim, $3,341.66 in prejudgment interest on the
fraud claim, $165,000 in punitive damages, and
1. A more detailed history of the case, including a discussion of
the intervening appeals, can be found at Herhold v. Smith
Land Co., LLC, 9th Dist. Summit No. 28032, 2016-Ohio4939.
A-25
$48,062.55 in attorney fees. Subsequently, the
Defendants filed a motion for judgment
notwithstanding the verdict, or, in the alternate,
a motion for a new trial. The trial court denied
the motions.
{¶7} The Defendants have appealed,
raising seven assignments of error, which will
be addressed out of sequence to facilitate our
analysis.
II.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED AS A MATIER OF
LAW IN DENYING SMITH LAND COMPANY
AND ROBERT SMITH'S MOTIONS FOR
DIRECTED VERDICT AND JUDGMENT
NOTWITHSTANDING THE VERDICT
PURSUANT TO CIV.[R.] 58 ON THE
HERHOLDS['] BREACH OF CONTRACT
A-26
CLAIM.
{¶8} The Defendants assert in their fourth
assignment of error that the trial court erred in
denying their motion for directed verdict and for
judgment notwithstanding the verdict on the
Herholds' breach of contract claim.
The test to be applied by a trial court in
ruling on a motion for judgment
notwithstanding the verdict is the same
test to be applied on a motion for a
directed verdict. The evidence adduced at
trial and the facts established by
admissions in the pleadings and in the
record must be construed most strongly in
favor of the party against whom the
motion is made, and, where there is
substantial evidence to support his side of
A-27
the case, upon which reasonable minds
may reach different conclusions, the
motion must be denied. Neither the
weight of the evidence nor the credibility
of the witnesses is for the court's
determination in ruling upon either of the
above motions.
(Internal quotations and citations omitted.)
Jackovic v. Webb, 9th Dist. Summit No. 26555,
2013-0hio-2520, 15. Both rulings are reviewed
by this Court de novo. Id.
{¶9} "Generally, a breach of contract
occurs when a party demonstrates the existence
of a binding contract or agreement; the nonbreaching party performed its contractual
obligations; the other party failed to fulfill its
contractual obligations without legal excuse;
and the non-breaching party suffered damages
A-28
as a result of the breach." (Internal quotations
and citations omitted.) Envision Waste Servs.,
LLC v. Cly. of Medina, 9th Dist. Medina Nos.
l5CA0104-M, 15CA0106-M 2017-0hio-351, ¶ 14.
Background
{¶10} The Herholds presented evidence
supporting the following narrative. The
Defendants did not present any witnesses on their
behalf.
{¶11} Woodbury Estates, where the Property
is located, was platted in November 1999. Smith
Land was the proponent of the plat map and the
owner of the land. The allotment originally
contained 10 lots. They were numbered I
through 9 and an additional lot was labeled as
block A. Ultimately, block A would be later split
into lots, one of which is the Property.
A-29
{¶12} Earlier in 1999, Smith Land,
through a consultant, submitted a report
delineating the wetlands in the land for
verification by the United States Army Corps of
Engineers. The report identified 5.54 acres of
jurisdictional wetlands. Lee Robinette with the
United States Army Corps of Engineers went
out to the area to field verify the presence and
location of wetlands. She then sent a verification
letter to Smith Land's consultant.
{¶13} The plat was reviewed by the zoning
and engineering departments of the City of
Fairlawn. Before the plat was approved, the city
engineer requested that certain restrictions be
placed on the map. One of those restrictions stated
that, "[t]he lands delineated on this plat as
wetlands are jurisdictional waters of the United
A-30
States under the Federal Clean Water Act, and in
order to fill any of the delineated wetlands, not
shown on this plat as to be filled, a permit must
be obtained from the U.S. Army Corps of
Engineers." Once effective, those restrictions
"run[] with the land" and "future development has
to adhere to those restrictions." If at some point,
someone desired to change or remove a restriction,
that person would have to contact the planning
commission and fill out an application to have the
plat updated. No one has ever asked that any of
the restrictions be removed. Christopher Randles
with the Building and Zoning Commission for the
City of Fairlawn was of the opinion that, until the
restrictions are removed, they must be followed.
{¶14} Notably, block A, where the Property
would ultimately be, was composed of wetlands
A-31
that were not designated as "to be filled[.]" Thus,
Mr. Randles opined that if someone was going to
put fill in block A, that person would need a
permit. Lot 5, however, did contain the designation
that a portion was "to be filled[.]" At one of the
planning commission meetings in November 1999,
Karen-Edwards Smith, Mr. Smith's wife, the vicepresident of Smith Land, and also an ·attorney,
appeared on behalf of Smith Land. Ms. EdwardsSmith told the commission that the lots will only
appeal to certain individuals. Those people "would
be ones that me interested in having a wetlands
surrounding because the contracts that are signed
as to purchasing these, as well as the plats, reflect
that they do not have the right to go in and fill the
wetlands without Army Corps of Engineers'
permits." Ms. Smith told the commission that, "if
the city does grant the lot splits as indicated that
A-32
no way are we making any representations of
building ability of the land itself."
{¶15} In February 2000, Ms. Robinette's
office received a report of a potential unauthorized
wetland fill project on Smith Land's property.
Employees of the United States Army Corps of
Engineers visited the site and discovered that .5
acre of wetland had been filled. Under what was
known as a Nationwide Permit or NWP number 26,
any impact to wetlands over one-third of an acre
and up to three acres required prior notification
and mitigation planning. Mitigation planning
involves the purchase and, thus preservation, of
other wetlands so that there is not a net loss of
wetlands. Smith Land did not notify the United
States Army Corps of Engineers about the fill
and did not mitigate for the impacted wetlands.
A-33
Accordingly, United States Army Corps of
Engineers determined the project was not in
compliance with NWP number 26.
{¶16} Subsequently, Smith Land applied
to the United States Army Corps of Engineers to
fill .945 acre of jurisdictional wetland and to
mitigate the impact by purchasing 2 acres of
wetlands elsewhere. In submitting the
application, Smith Land included a map of the
proposed fill that included the restriction about
wetlands that was on the previous plat map.
The proposed fill area included a portion of what
would become the Property.
{¶17} In April 2000, Smith Land received
a letter from the United States Army Corps of
Engineers authorizing the work under NWP
number 26. The permit was valid until February
A-34
11, 2002, unless activity commenced or was
contracted to commence prior to that date, in
which case Smith Land would have an
additional 12 months to complete activity under
the permit. The letter concluded by noting that
"[a]ny impacts to the remaining 4.609 acres of
jurisdictional wetlands on the subject property
would require authorization from this office.
Please be aware that the nationwide permit
authorization does not obviate the requirement
to obtain state or local assent required by law
for the activity." The City of Fairlawn was never
notified of a violation of the permit. Further, Ms.
Robinette was unaware of her office issuing any
violation of the permit but she also noted that
she was unaware of the United States Army
Corps of Engineers being asked to evaluate the
A-35
land as to whether there was a violation.
{¶18} Around that time, Smith Land also
requested that the city planning commission
split block A into three lots. The letter from the
United States Army Corps of Engineers was
referenced during the planning commission
meeting and it and the attachments were
considered by the commission. Block A was
ultimately split into three lots, one of which
became the Property.
{¶19} The plat map that designates the
splitting of block A includes what is labeled a
"Note" that specifies that "[t]he lands delineated
on this plat as wetlands ate jurisdictional waters.
of the United States under the Federal Clean
Water Act and in order to fill any of the delineated
wetlands, not shown on this plat as to be filled, a
A-36
permit must be obtained from the U.S. Army
Corps of Engineers." In May 2000, a deed was
issued from Smith Land to Smith Land to address
the splitting of the lots of block A. That deed did
not contain the notation concerning the wetlands
that was on the plat map.
{¶20} In 2002, the Herholds were looking for
a vacant lot upon which to build a home: Mr.
Herhold first came across the Property and noticed
that it was level and freshly graded with woods in
the backyard. He observed that it appeared to
have fresh dirt as "it was graded, so you could tell
that it had just been recently worked up because it
was like nice, flat, level." After showing the
Property to Ms. Rassavong, Mr. Herhold met Mr.
Smith at the Property.
{¶21} Mr. Smith told Mr. Herhold that Mr.
Smith had purchased the land in the area and
A-37
divided it up into lots. Mr. Smith informed Mr.
Herhold that Mr. Smith was building a house on
a lot further down, lot 5, and the lot was very
similar to the Property. Mr. Herhold said that
Mr. Smith used lot 5 as an example of what Mr.
Herhold would be able to do. Mr. Smith "was
being very encouraging, *** he was showing
[Mr. Herhold] the house he [was] doing just
down the road, saying that it is a buildable lot."
Mr. Smith did advise Mr. Herhold that he would
need a little bit of extra stone for the foundation
and that would cost about $5,000 extra as
compared to an average house. Additionally, Mr.
Smith told Mr. Herhold that there was some fill
dirt on the Property that he had brought in and
that "he was allowed to bring fill dirt in there."
Mr. Smith indicated that there were wetlands at
the back of the Property and showed Mr.
A-38
Herhold how far back the Property went into the
wetlands. However, Mr. Smith did not tell
them that the Property had been filled over
wetlands.
{¶ 22} Thereafter, Mr. Herhold brought
family members and his wife out to the Property
several times. He estimated that he had been
out to the Property at least 10 times at the point
he made an offer. In making the offer, Mr.
Herhold informed Mr. Smith that he "wanted to
make sure that everything was okay with the
piece of property, like [Mr. Smith] had said, that
it was a buildable lot. *** [Mr. Herhold] wanted
something in [the agreement] to state that it
was a buildable lot, and [Mr. Smith] said that
was not a problem." Ms. Rassavong added that,
due to the visible wetlands in the back, they
wanted some assurance that the Property was
A-39
buildable.
{¶23} The top of the "Real Estate Purchase
Agreement" included a handwritten notation
that the "Seller to provide documentation that lot
is buildable with fill dirt." There is also an
asterisk near the notation which states "See
Addendum
A[.]"
The
handwritten
notation
appears to be initialed by Mr. Smith and the
Herholds. The Herholds understood that this
notation meant that, with the fill dirt already on
the Property, the lot was a buildable lot.
{¶24}
The
Real
Estate
Purchase
Agreement also included an "'AS IS' Clause[,]"
which was part of the form agreement. It stated:
Buyer agrees and acknowledges that the
property is being conveyed "AS IS" and
that neither Seller, Broker, nor Agent
A-40
have
made
any
representations
or
warranties, either expressed or implied,
regarding the property including, but not
limited to, soil conditions, environmental
conditions,
flooding
or
flood
zone,
availability of septic or sewer, availability
or
condition
of
well
or
city
water,
availability of public utilities, feasibility
for
construction,
surveying
restrictions.
or
zoning,
boundaries,
Buyer
has
easements,
and
deed
the
sole
responsibility to inspect the property
before signing this Agreement. Broker or
Agent assume no liability for the condition
of the property at any time before or after
delivery of the deed.
This Agreement is contingent upon an
inspection of the property for its suitability
A-41
for Buyer's intended purpose, including
septic/sewer permits and preliminary title
search, within sixty (60) days form the date
of acceptance of this Agreement. Inspections
to be performed by Buyer at Buyer's
expense. If Buyer is not satisfied with the
condition of the property then Buyer shall
notify Seller within the inspection period
and
Seller
unsatisfactory
may
either
condition
or
correct
the
void
this
Agreement in which case all monies held in
trust shall be returned to Buyer without
further liability between Seller, Buyer, or
Broker. If Buyer does not inspect, then the
inspection is waived and Buyer takes the
property in its present "AS IS" condition.
After inspection and correction, if any, and
delivery of deed Buyer accepts the property
A-42
"AS IS". Buyer shall be responsible for the
repair and restoration of any damage to the
property which may be caused by the
inspections.
{¶25} The Real Estate Purchase Agreement
was signed by the Herholds and Mr. Smith, whose
signature was followed by "Pres[,]" under which
appeared "Smith Land Co. Inc." Mr. Herhold
acknowledged that he did not have any
inspections done nor did he contact the City of
Fairlawn or Ohio EPA.
{¶26} The "Addendum to Sales Contract"
provides that "[t]he subject site will be
required to be engineered by a company such as
Messmore Engineering or Summit Testing. As
with sub lot 5 *** Messmore required a base of l's
and 2's (stone) in the construction area under the
A-43
footer and basement floor. The fill used on sub
lot 5 is approximately the same level of fill used
on the subject lot." The addendum was signed
by the Herholds and Mr. Smith on July 11, 2002.
{¶27} Mr. Smith also completed a disclosure
form. That document lists "Smith Land" as the
seller but it is signed by Mr. Smith and the
Herholds. With respect to the question, "Arc you
aware of any violation of either Federal or State
Environmental Protection Agency rules or
regulations?[,]" the "NO" box is checked. The
disclosure form also reflects, inter alia, that the
seller did not know of any flooding, drainage, or
grading problems on the Property, did know that
the Property was designated as a wetland by a
federal or state governmental agency, did not
know of any violations of local, state or federal
laws, building codes and/or zoning ordinances
A-44
affecting the Property, and did not know of any
excessive settling, slippage, sliding erosion, or
other soil stability problems on the Property. The
end of the form states "[t]he above information is
true and correct to the best of my knowledge and,
except as set forth herein, no material problems
exist with respect to the property as of the date
below. I further agree to notify Purchase[r] of any
additional items which may become known to me
prior to the recording of the deed." Mr. Herhold
testified that he relied on the disclosure form
when he made an offer on the Property.
{¶28} The Herholds purchased the
Property for $55,000. Mr. Herhold averred
that when he did so he believed that he
purchased a buildable lot. Based on the
representations made to him, Mr. Herhold
believed that all he had to do to build on the lot
A-45
was to add some extra stone for the foundation
as specified in the Addendum. The deed was
filed September 4, 2002.
{¶29} Shortly after purchasing the
Property, in November 2002, Mr. Herhold, who
was in the United States Navy Reserve, was
deployed to Japan for nearly a year. When Mr.
Herhold returned almost a year later, the
couple decided that, due to their circumstances,
they should sell the Property.
{¶30} In 2003 Ms. Robinette was
contacted by a law firm representing the City of
Fairlawn to revisit the area containing the
Property to re-verify the limits of United States
Army Corps of Engineers jurisdiction over the
wetlands. In 2004, Ms. Robinette visited the
land to do so. She explained that a ruling had
come out in January 2001 known as the
A-46
"SWANCC" decision. See Solid Waste Agency of
N. Cook Cty. v. United States Army Corps of
Engineers, 531 U.S. 159 (2001). Ms. Robinette
opined that that decision provided "that in
order for a wetland to be considered a water of
the United States, it had to have a physical
connection, and it had to exhibit a connection,
meaning a conveyance, to a surface water
tributary system." Thus, from that date forward,
any water determined to be isolated would be
outside federal jurisdiction. When Ms. Robinette
visited the land she discovered that the wetlands
did not have such a connection and thus were
isolated wetlands. Therefore, they were no longer,
under federal jurisdiction. According to Ms.
Robinette, federal jurisdiction ceased as of the
date of her determination, which was February 4,
2004. Thus, she opined that prior to her finding in
A-47
2004, the United States Army Corps of Engineers
retained jurisdiction over the area. However,
following her determination there would be no
need to obtain a permit from the United States
Army Corps of Engineers to place fill in the area.
At the point of her determination, jurisdiction
over the isolated wetlands would be with Ohio
EPA. Mr. Wilk agreed that Ohio EPA did not have
jurisdiction over the isolated wetlands until 2004.
{¶31} In 2004, the Herholds listed the
Property for sale. In September 2004, the
Herholds received an offer of $61,900; however,
that offer ultimately fell through. In December
2004, the Herholds received another offer to
purchase the Property for $61,900. Before the sale
closed, the Herholds discovered that the City of
Fairlawn would not issue a building permit for
the Property. Mr. Randles sent the prospective
A-48
buyer a letter dated April I, 2005. That letter
informed the prospective buyer that any
construction on the lots in block A may impact the
wetlands. Therefore, Mr. Randles stated that it
would be necessary to obtain permission from
Ohio EPA for any such work. According to Mr.
Randles, the city would not issue a building
permit until the foregoing was accomplished.
Thus, they were unable to complete the sale.
{¶32} Mr. Herhold then talked to the City of
Fairlawn to figure out what precisely was the
problem with the Property. Mr. Herhold talked to
Mr. Randles and Mr. Wilk with Ohio EPA. Mr.
Wilk came to understand that the United States
Army Corps of Engineers had classified the area,
which included the Property, as isolated and
outside of federal jurisdiction. Mr. Wilk visited
the Property and observed that, in looking at
A-49
the map that accompanied the federal permit,
the fill on the Property surpassed the allowable
amount by a "great margin." Mr. Wilk testified
that Mr. Herhold’s options were to either
remove the fill dirt and reestablish the
wetlands or to submit an after-the-factapplication to allow the fill dirt lo remain and to
purchase mitigation. Mr. Wilk opined that
mitigation would be very expensive.
{¶33} Mr. Herhold averred that, before he
could get a building permit from the City of
Fairlawn, he had to obtain permission from Ohio
EPA. Mr. Randles indicated that it was the
city's position that it would require anybody
coming in for a building permit to obtain
approval from either the Army Corps of Engineers
or Ohio EPA and that the person would need
A-50
to have the soil tested to determine whether an
engineered foundation would be necessary. Mr.
Herhold averred that he was required to remove
about forty dump trucks full of fill from the
Property and plant vegetation in the area to
reestablish the wetlands. He testified that it was
not a buildable lot with the fill dirt because it
was excessive fill. In removing the excessive fill,
Mr. Herhold had to put a ditch along the north
side of the Property. Making these alterations
to the Property "made the lot very, very narrow"
as the Herholds had to slope the area around the
ditch which then "encroached heavily on the
width of the property." In addition, Mr. Herhold
had to get the land drilled and tested. That
company estimated that it would cost $15,000 to
$20,000 to put in a foundation at the Property.
A-51
{¶34} In October 2005, Mr. Wilk sent Mr.
Herold a letter summarizing the situation and
Mr. Herold's response to it. Mr. Wilk noted that
the Property "failed to comply with the
notification condition of the Army Corps of
Engineers to properly fill a wetland. The
wetlands on the property were filled by Smith
Land Company over the allowable limits at the
north property boundary." The letter noted that
Mr. Herhold had opted to remove the fill dirt
and reestablish the wetland and that Mr. Wilk
had inspected the work and found that the fill
had been removed. When asked what state
laws would apply, Mr. Wilk indicated that R.C.
61I1.03 did, which he averred dealt with
isolated wetlands and was enacted in 1982.
Nonetheless, Mr. Wilk indicated that his
A-52
actions involving the Herholds were not
enforcement actions by Ohio EPA and instead
his job at the time was "to help the Herholds out
to meet the conditions as required by the City of
Fairlawn so they c[ould] proceed with the
building permit." {¶35} During the sale process;
Mr. Smith never told Mr. Herhold that it would
be necessary to make those alterations to the
Property, nor did Mr. Smith ever tell him there
was unauthorized fill on the Property. Mr.
Herhold indicated that had he known there was
unauthorized fill on the Property he would not
have purchased it. Mr. Herhold opined that the
Property is no longer "a desirable piece of land"
and "nobody wants to purchase [the Property]
now." Mr. Hcrhold stated that they have not
had any offers even after offering the Property
A-53
in the thirty thousand dollar range. Nonetheless,
he testified that the City of Fairlawn now
would. issue a building permit if they applied for
one because of the alterations Mr. Herhold made.
Breach of Contract Claim
{¶36} The Herholds claimed that Mr.
Smith and Smith Land breached the contract by
failing to disclose the unauthorized fill and by
representing that the Property was buildable in
the condition the Herholds received it when it
was not.
{¶ 37} Viewing the evidence in a light
most favorable to the Herholds, we conclude
there was evidence from which a jury could find
that Mr. Smith and Smith Land breached the
contract. The Hcrholds were aware that the
Property contained wetlands and fill dirt.
A-54
Partly because of that, Mr. Herhold informed
Mr. Smith that he "wanted to make sure that
everything was okay with the piece of property,
like [Mr. Smith] had said, that it was a
buildable lot. *** [Mr. Herhold] wanted
something in [the agreement] to state that it was
a buildable lot, and [Mr. Smith] said that was not
a problem." At the top of the page of the contract
labeled "Real Estate Purchase Agreement[,]"
there is a handwritten notation that states "Seller
to provide documentation that lot is buildable
with fill dirt." Mr. Herhold testified that ''they[,]"
presumably referring to Mr. Smith and/or Smith
Land, wrote that into the agreement. There is
also an asterisk near the notation which states
"See Addendum A[.]" The handwritten notation
appears to be initialed by Mr. Smith and the
A-55
Herholds. The Herholds testified without
objection that they understood that this notation
meant that, with the fill dirt already on the
Property, the lot was a buildable lot. The
"Addendum to Sales Contract" provides that
"[t]he subject site will be required to be
engineered by a company such as Messmore
Engineering or Summit Testing. As with sub lot 5
*** Messmore required a base of l's and 2's (stone)
in the construction area under the footer and
basement floor. The fill used on sub lot 5 is
approximately the same level of fill used on the
subject lot." The addendum was signed by the
Herholds and Mr. Smith.
{¶38} When the Herholds went to sell the
Property they came to discover that a building
permit would not be issued by the City of
A-56
Fairlawn for the Property absent permission from
Ohio EPA. In working with Ohio EPA, the
Herholds came to understand that there was
excess fill dirt placed on the Property by Smith
Land and that they would have to remove that
excess fill dirt in order to satisfy Ohio EPA.
{¶39} Given the foregoing, along with the
other circumstances discussed in great detail
above, the trier of fact could conclude that Mr.
Smith and Smith Land breached the contract by
failing to sell the Herholds a buildable lot. There
was evidence to. support the notion that the City
of Fairlawn would not grant the Herholds a
building permit for the Property in the condition
it was sold to them. Thus, a reasonable trier of
fact could conclude that the lot was not
buildable as sold.
{¶40} In arguing that there was no
A-57
breach of contract, the Defendants additionally
point to the "AS IS" provision in the contract
which also provides for inspections by the
purchasers. However, the Defendants have
failed to cite any case law to support their
contention. See App.R. 16(A)(7). Instead, in a
conclusory fashion, they maintain that the
Herholds' damages were caused by their failure
to inspect the Property. They develop no
argument explaining why the "AS IS" clause
and provision for inspections should trump the
handwritten notation at the top concerning
buildability of the Property which was initialed
by Mr. Smith and the Herholds. See App.R.
16(A)(7). Thus, we cannot say that the
Defendants met their burden on appeal on this
issue.
A-58
{¶41} The Defendants additionally
contend that there was no breach of contract
because, upon acceptance of the deed, the
contract merged into the deed.
{¶42} "The doctrine of merger by deed
holds that whenever a deed is delivered and
accepted without qualification pursuant to a
sales contract for real property, the contract
becomes merged into the deed and no cause of
action upon said prior agreement exists. The
purchaser is limited to the express covenants of
the deed only." (Internal quotations and
citations omitted.) Brostek v. O'Connell, 9th
Dist. Lorain No. 10CA009779, 2010-Ohio-4544,
10. This Court has previously categorized it as
an affirmative defense. See Zanko v. Kapcar,
9th Dist. Summit No. 20825, 2002-Ohio"2329, ¶
3, fn.l. Accordingly the Defendants bore the
A-59
burden of establishing the elements of their
affirmative defense. Glenmoore Builders, Inc. v.
Smith Family Trust, 9th Dist. Summit No.
24299, 2009-Ohio-3174, ¶ 40. Notably, the
Defendants have not pointed to any place in the
record where they elicited evidence that the
Herholds accepted the deed without
qualification; in fact, they have not even pointed
to the deed itself. See App.R. 16(A)(7). Instead,
they have merely stated in a conclusory fashion
that "[t]he Herholds accepted the deed to the
property • • • without qualification pursuant to
the purchase agreement for the real property."
{¶43} Additionally, wc note "[t]here are
••• two exceptions to the doctrine of merger. The
doctrine will not apply if elements of fraud or
mistake exist, or if the prior agreement is
collateral to and independent of the main purpose
A-60
of the transaction." Zilka v. Cent. S. Ltd., 9th Dist.
Lorain No. 99CA007482, 2000 WL 988765, *6
(July 19, 2000). Given, the extremely limited
argument made by the Defendants on this issue,
and that the jury found for the Herholds on their
fraud claim, a finding that is affirmed below, we
cannot say that the Defendants have
demonstrated an entitlement to judgment on the
breach of contract claim based upon the doctrine
of merger by deed. See Hiland v. B.M Invests.,
2d Dist. Miami No. 93 CA 3, 1993 WL 462410, *34 (Nov. 9, 1993).
{¶44} Finally, the Defendants argue that
Mr. Smith was not a party to the contract and
the Herholds failed to present evidence to pierce
the corporate veil. Thus, the Defendants assert
that Mr. Smith could not be held individually
liable.
A-61
{¶45} Because we conclude that, when
viewing the evidence in a light most favorable to
the Herholds, it would be possible for a trier of
fact to conclude the Mr. Smith signed the contract
in his individual capacity, we see no reason to
examine whether there was sufficient evidence
concerning piercing the corporate veil.
{¶46} "Generally, a party signing a
contract as a corporate officer is not
individually liable." Spicer v. James, 21 Ohio
App.3d 222, 223 (2d Dist. 1985); see also
Marhofer v. Baur, 101 Ohio App.3d 194, 196 (9th
Dist.1995) ("An officer of a corporation is· not
personally liable on contracts *** for which his
corporate principal is liable, unless he
intentionally or inadvertently binds himself as an
individual.") (Internal quotations and citations
omitted.). "However, if a corporate officer executes
A-62
an agreement in a way that indicates personal
liability, then that officer is personally liable
regardless of his intention. Whether a corporate
officer is personally liable upon a contract depends
upon the form of the promise and the form of the
signature." (Internal citation omitted.) Spicer at
223. Generally, a corporate officer is individually
liable on a breach of contract claim when he or she
personally signs a contract in his or her individual
capacity. Ayad v. Radio One, Inc., 8th Dist.
Cuyahoga No. 88031, 2007-Ohio-2493, ¶ 56, citing
Spicer at 223; see also Big H, Inc. v. Watson,
1st Dist. Hamilton No. C-050424, 2006-Ohio4031, ¶ 7. ("It is undisputed law that when an
agent signs a contract as an individual without
adding the name of the principal, the agent is
personally bound by the contract. Similarly, a
corporate officer is responsible for clearly
A-63
identifying the corporation for which the officer is
signing, or the officer is exposed to individual
liability.").
{¶47} Here, the contract at issue was
composed of three pages, each with their own
signature page. The first page was entitled "Real
Estate Purchase Agreement[.]" That page is
signed by Mr. Smith and his signature is followed
by "Pres" and underneath that appears "Smith
Land Co, Inc." The second page is a page of
disclosures that lists the seller as "Smith Land"
and appears to only be signed by Mr. Smith in his
individual capacity. The third page is the
addendum to the sales contract and also appears
to only be signed by Mr. Smith in his individual
capacity.
{¶48} Thus, there is ambiguity as to
whether the entire sales agreement was signed by
A-64
Mr. Smith in only his capacity as an officer of
Smith Land or whether he was signing as an
individual. We note again that Mr. Smith did not
take the stand to clarify the ambiguity in the
contract.
{¶49} Under these circumstances, we
conclude that, when the evidence is viewed in a
light most favorable to the Herholds, a
reasonable trier of fact could find Mr. Smith
individually liable under the contract. And
because of that, it is not necessary to examine
whether there was evidence supporting piercing
the corporate veil. See Marhofer, 101 Ohio
App.3d at 198 ("In the absence of facts that
justify piercing the corporate veil, an officer is
not personally liable on a contract that he has
only signed in his corporate capacity.")
A-65
{¶50} In light of the foregoing, the
Defendants' fourth assignment of error is
overruled.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED AS A MATTER
OF LAW IN DENYING SMITH LAND
COMPANY'S AND ROBERT SMITH'S
MOTION FOR DIRECTED VERDICT AND
JUDGMENT NOTWITHSTANDING THE
VERDICT PURSUANT TO CIV.[R.] 58 ON
THE FRAUD /FRAUDULENT
CONCEALMENT CLAIM.
{¶51} The Defendants argue in their fifth
assignment of error that the trial court erred in
denying their motion for directed verdict and
judgment notwithstanding the verdict on the
A-66
Herholds' fraud claim.
{¶52} The Herholds argued that the
Defendants committed fraud by failing to
disclose the unauthorized fill on the Property
and by misrepresenting that the Property was
buildable.
{¶53} The elements of a fraud claim are as
follows:
1)
a representation, or in a situation
where there was a duty to disclose, a
concealment of fact; 2) which fact is
material to the transaction; 3) made
falsely, with knowledge of its falsity, or
with such utter disregard and
recklessness as to whether it is true or
false that knowledge may be inferred; 4)
with the intent of misleading another into
A-67
relying upon it; 5) justifiable reliance on
the misrepresentation; and 6) a resulting
injury proximately caused by the reliance.
(Citation omitted.) Petroskey v. Martin, 9th Dist.
Lorain No. 17CA011098, 2018-Ohio-445, ¶17.
{¶54} Given all of the evidence discussed
in detail above, and the arguments made on
appeal, we conclude that sufficient evidence
was presented to overcome the motion for
directed verdict and judgment notwithstanding
the verdict. As mentioned previously, there was
a provision at the top of the Real Estate
Purchase Agreement that the Herholds insisted
be included because they wanted assurances
that the Property was buildable. The Herholds
understood the provision to mean that the
Defendants were assuring the Herholds that
A-68
the Property was buildable with the fill dirt
that was on it at the time of the sale, Mr. Smith
was aware of the Herholds' concern and agreed
to add the provision to the top of the agreement.
While Mr. Smith disclosed that the Property
contained wetlands and that there was fill dirt
on the Property, he never told the Herholds
that any of the fill dirt was unauthorized.
Evidence was presented that the City of
Fairlawn would only issue approval for a
building permit after permission from Ohio
EPA was granted. A letter from Ohio EPA to
Mr. Herhold was discussed at trial and
indicates that the wetlands were filled by Smith
Land over the allowable limits. To remedy the
condition, the Herholds opted to remove the
excess fill.
A-69
{¶55} The Defendants argue on appeal
that they were entitled to a directed verdict
and/or judgment notwithstanding the verdict on
the fraud claim because the Defendants owed
no duty, separate from the contract, to the
Herholds. They also assert that a party cannot
predicate fraud upon future performance. The
Defendants have failed to demonstrate that
they made either of these arguments in their
motion for directed verdict or motion for
judgment notwithstanding the verdict, nor can
this Court locate a place in those motions where
those arguments were made. See App.R.
16(A)(7). "This Court has held on multiple
occasions that [a]rguments that were not raised
in the trial court cannot be raised for the first
time on appeal." (Internal quotations and
A-70
citation omitted.) Huntington Natl. Bank v.
Anderson,
9th
Dist.
Lorain
No.
17CA011223, 2018- 0hio-3936, ¶20.
{¶56} The Defendants additionally raise
several other issues in a disjointed argument
that it is somewhat difficult to follow. They
point to Wilfong v. Petrone, 9th Dist. Summit
No. 26317, 2013-0hio-2434, ¶ 11, for its
discussion of patent versus latent defects.
However, they then assert that there was no
defect at all at the time of sale, despite the
evidence to the contrary discussed above. While
the Defendants might disagree with the weight of
that evidence, in reviewing a ruling on a motion
for directed verdict or judgment notwithstanding
the verdict, we must view the evidence in a light
most favorable to the Herholds. See Jackovic,
2013-0hio- 2520, at ¶15.
A-71
{¶57} In that same paragraph, the
Defendants also argue that the Herholds should
have inspected the Property but fail to provide
any discussion explaining why that should defeat
the fraud claim under the circumstances before
us. See App.R. 6(A)(7).
{¶58} Moreover, the Defendants argue
that the Herholds failed to establish that the
Defendants knew there was unauthorized fill on
the lot or that the Property was not buildable as
sold. The record discloses that the original plat
map for the subdivision included a restriction
that "[t]he lands delineated on this plat as
wetlands are jurisdictional waters of the United
States under the Federal Clean Water Act and in
order to fill any of the delineated wetlands, not
shown on this plat as to be filled, a permit must be
obtained from the U.S. Army Corps of Engineers."
A-72
The map indicated that block A, a portion of which
would become the Property, contained
jurisdictional wetlands that were not to be filled.
There was testimony that that restriction ran
with the land and would be enforced by the City of
Fairlawn until the restriction was removed. There
was also testimony that no one ever sought to
have the restriction removed. When block A was
split, the plat map also contained the same
language in the aforementioned restriction in a
note on the map. Smith Land did apply to the
United States Army Corps of Engineers to fill a
portion of the jurisdictional wetland, which
included portions of block A, including a portion of
the Property. That application was approved.
Thus, it would be reasonable to presume that the
Defendants had knowledge of where and how
much fill they were authorized to place on the
A-73
Property.
{¶59} There was testimony that, prior to the
sale of the Property, Mr. Smith told Mr. Herhold
that there was some fill dirt on the Property that
he had brought in and that "he was allowed to
bring fill dirt in there." There was also evidence
that Ohio EPA concluded that the fill on the
Property failed to comply with the permit from the
United States Army Corps of Engineers in that
there was excessive fill dirt on the Property at the
north property boundary that was placed there by
Smith Land. There was no evidence that anyone
aside from the Defendants placed fill on the
Property. Mr. Wilk described the fill on the
Property as surpassing the allowable amount by a
"great margin." Mr. Wilk testified that he went
out and viewed the Property, and, using the map
that delineated where the fill could be placed, he
A-74
stated "it was obvious" that the fill continued
outside the prescribed boundaries. In fact, Mr.
Herhold testified that he had to remove about 40
dump trucks full of fill from the Property. From
that evidence, a trier of fact could conclude that
the Defendants had knowledge of the excess fill
dirt and because of that could also conclude that
Defendants knew the Property was not buildable
as sold.
{¶60} Finally, the Defendants argue that
they could never have known that Ohio EPA was
going to enforce a law that did not exist at the
time the Property sold. The Defendants appear to
be referring to testimony by Mr. Wilk about
R.C.6111.03, which Mr. Wilk cited in his
testimony. That statute discusses the numerous
water pollution control powers of the director of
environmental protection. See R.C. 6111.03. Mr.
A-75
Wilk testified that that statue went into effect in
1982 while the Defendants claim that it did not go
into effect until 2003, after the sale. This Court's
review of the history of the statute reveals that
the statute dates back to even before 1982.
Accordingly, the Defendants' argument is without
merit.
{¶61} Given the arguments raised on
appeal, the Defendants' fifth assignment of error
is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT FAILED
TO FIND AS A MATTER OF LAW THAT THE
USACE PERMIT ISSUED TO SMITH LAND
COMPANY[] WAS NOT VIOLATED AND THAT
THE U.S. SUPREME COURT DECISION IN
SOLID WASTE AGENCY OF NORTHERN COOK
COUNTY V. ARMY CORPS[.] OF ENGINEERS,
A-76
531 U.S. 159 (2001) WAS THE SUPREME LAW
OF THE LAND AS OF THE DATE OF THAT
DECISION.
{¶62} The Defendants argue in their first
assignment of error that the trial court erred in
failing to find as a matter of law that the United
States Army Corps of Engineers permit was not
violated and that the decision in Solid Waste
Agency of N. Cook Cty. v. Army Corps of
Engineers, 531 U.S. 159 (2001), was the supreme
law of the land. While the Defendants spend a
great deal of time discussing the aforementioned
case, what they believe its implications are for
this matter, and the general import of a United
States Supreme Court decision, they fail to
identify where in the record they asked the trial
court to make such a ruling or where in the record
A-77
the trial court failed to make the ruling they now
challenge. See Loc.R. 7(F) ("If a party fails to
include a reference to a part of the record that is
necessary to the court's review, the court may
disregard the assignment of error or argument.");
App.R. 16(A)(7). Accordingly, this Court is not
even certain which ruling of the trial court this
assignment of error is challenging. While the
Defendants, in a footnote, reference a page in the
transcript from the first trial, they have not
explained why a statement from the trial court
from the first trial should be reviewed in
deciding an appeal from the second trial. See
App.R. 16(A)(7).
{¶ 63} Given the foregoing, the
Defendants' first assignment of error is
overruled.
A-78
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN ALLOWING
ED WILK, OHIO EPA, TO TESTIFY, TO
ASSERT ENFORCEMENT AUTHORITY OVER
THE USACE PERMIT, AND TO ASSERT AN
UNCONSTITUTIONAL
RETROACTIVE
ENFORCEMENT OF R.[C.] 6111.03.
{¶64} The Defendants argue in their
second assignment of error that the trial court
erred in allowing Mr. Wilk to testify. They note
that they objected to his testimony at trial
based upon relevancy. However, in their brief,
the Defendants have not developed an
argument articulating why Mr. Wilk's
testimony was not relevant. See App.R.
A-79
16(A)(7). The Defendants fail to cite to the
pertinent evidentiary rule and also fail to
explain how the evidence they reference was
irrelevant. In addition, the Defendants assert
that Mr. Wilk's testimony misled the jury as he
testified to an inaccurate effective date of R.C.
6111.03, thereby evidencing a retroactive
enforcement of R.C. 6111.03. This argument
has already been addressed. Further, they
allege that Mr. Wilk never provided them notice
of an enforcement action under R.C. 6111.03
and thereby his testimony also demonstrated a
violation of their due process rights. We note
that the Defendants have not pointed to a place
in the record wbere they objected to the
testimony based upon these issues or concerns.
See Loc.R. 7(F). Nor have the Defendants
A-80
explained how these issues would relate to the
relevancy of Mr. Wilk's testimony. See App.R.
16(A)(7). Thus, we cannot conclude that the
Defendants met their burden to demonstrate
error with respect to this assignment of error.
See Wiegand v. Fabrizi Trucking & Paving Co.,
9th Dist. Medina No. 16CA0015-M, 2017-Ohio363, 35 ("The Wiegands spend most of their
argument detailing why they believe that the
witnesses were incorrect instead of explaining
why their testimony was inadmissible.").
{¶65} In light of the foregoing, we overrule
the Defendants' second assignment of error.
ASSIGNMENT OF ERROR Ill
THE TRIAL COURT ERRED WHEN IT DENIED
A-81
DEFENDANTS[']
DISCOVERY
REQUEST
FOR
THE
TO
REOPEN
PURPOSE
OF
DEPOSING ED WILK.
{¶66} The Defendants argue in their third
assignment of error that the trial court erred
when it denied their request to reopen discovery
to depose Mr. Wilk and subpoena him to bring the
entire contents of his file for the Property.
{¶67} "A trial court has the inherent
authority to control its docket and to decide
discovery matters." In re Estate of Durkin, 9th
Dist. Summit No. 28861, 2018-Ohlo-2283, ¶ 17.
Accordingly, "[t]his Court will not reverse a trial
court's decision concerning the regulation of its
discovery proceedings absent an abuse of
discretion." Roberts v. Roberts, 9th Dist. Summit
No. 28509, 2017-Ohio-8473, ¶ 10.
{¶68} In the motion to reopen discovery,
which was made subsequent to the first trial, the
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Defendants claimed that Mr. Wilk failed to comply
with the Herholds' subpoena in the first trial as
he did not bring all relevant documents to trial.
However, the Defendants also pointed out in their
motion that they later made a public records
request for the file and received an electronic copy
of the file from Ohio EPA. They maintained that
some of the newly obtained documents
contradicted Mr. Wilk's testimony at the first trial
and, because he failed to bring those documents to
the first trial, they were unable to cross-examine
him about them.
{¶69} In ruling on the motion, the trial court
noted that the Defendants did not issue the
subpoena they assert was not followed and that
the Defendants now had the documents. Further,
the trial court observed that the Defendants
would have the ability to subpoena Mr. Wilk to
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appear at the trial or would be able to crossexamine him at trial if the Herholds subpoenaed
him,
{¶70} We cannot say that the Defendants
have demonstrated that the trial court abused
its discretion in denying the motion to reopen
discovery. The trial court's ruling is not
unreasonable, arbitrary, or unconscionable. See
Blakemore v. Blakemore, 5 Ohio St.3d 217,219
(1983), We note that the complaint was filed in
2008 and the first trial did not begin until 2014,
Thus, it appears that the parties had ample
time to conduct discovery. The record reflects
that a notice of deposition was filed even as late
as November 2013. Moreover, the Defendants
had Mr. Wilk's file prior to the second trial and
thus had the ability to cross-examine him about
the issues they raised in their motion. The
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Defendants have not asserted that they were
prevented from cross-examining Mr. Wilk about
any issue they raised in their motion.
{¶71} The Defendants' third assignment of
error is overruled.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED AS A MATTER
OF LAW WHEN IT AWARDED PUNITIVE
DAMAGES.
{¶72} The Defendants assert in their
sixth assignment of error that the trial court
erred when it awarded punitive damages.
{¶73} In a conclusory fashion, the
Defendants assert there was "no showing of
fraud, let alone 'malice or aggravated or
egregious fraud' as required by R.C. []2315.21
A-85
(C)(l)." However, they have not otherwise
developed an argument on this issue, It is the
Defendants' burden on appeal to demonstrate
error. See In re Estate of Durkin, 2018-Ohio2283, at 9 ("It is an appellant's duty to
demonstrate his assigned error through an
argument that is supported by citations to legal
authority and facts in the record; it is not the
function of this Court to construct a foundation
for his claims.").
{¶74} Additionally, the Defendants assert
that the punitive damages award of $165,000 was
far in excess of two times the fraud award, which
was $5,300, and that such an award is prohibited
by R.C. 2315.2l(D)(2)(a).
{¶75} R..C. 2315.2l(D)(2)(a) provides
that "[t]he court shall not enter judgment for
punitive or exemplary damages in excess of two
A-86
times the amount of the compensatory damages
awarded to the plaintiff from that defendant, as
determined pursuant to division (B)(2) or (3) of
this section." However, this punitive damages
cap only became effective Ap1il 7, 2005.
Northpoint Props. v. Charter One Bank, 8th
Dist. Cuyahoga No. 100210, 2014-0hio-1430, 74.
Courts have generally appeared to be
unwilling to apply R.C. 2315.21 retroactively.
See id. "Thus, a court cannot apply it to causes
of action that arose before the statute's
effective date even if some of the conduct giving
rise to the cause of action occurred after the
effective date." Blair v. McDonagh, 177 Ohio
App.3d 262, 2008-0hio-3698, (1st Dist.) ¶ 67.
{¶76} Here the sale of the Property took
place in 2002, and thus the representations as to
buildability and fill dirt were made at that time
A-87
as well. However, it was not until as late as early
2005 that the Herholds discovered that the City of
Fairlawn would not issue a prospective buyer a
building permit for the Property. In fact, the
prospective buyer received a letter from Mr.
Randles dated April 1, 2005, explaining that
construction would impact the wetlands and that
the prospective buyer would need to receive
permission from Ohio EPA for such activity.
Given the foregoing, there appears to be evidence
that almost all of the conduct at issue occurred
prior to the effective date of the statute. Prior to
the effective date of the current version of R.C.
2315.21(D)(2)(a), there was no cap on punitive
damages. See id. at 69. Accordingly, the
Defendants have not demonstrated that the trial
court erred in failing to apply the punitive
damages cap in the statute.
A-88
{¶77} The Defendants' sixth assignment
of error is overruled.
ASSIGNMENT OF ERROR VII
THE TRIAL COURT ERRED WHEN IT
DENIED SMITH LAND COMPANY AND
ROBERT SMITH A NEW TRIAL PURSUANT
TO CIV.[R.] 59.
{¶78} The Defendants argue in their
seventh assignment of error that the trial court
erred in denying their motion for new trial
pursuant to Civ.R. 59. In their motion for new
trial, the Defendants relied upon Civ.R. 59(A)(I)
and (A)(8).
{¶79} "Depending upon the basis of the
motion for a new trial, this Court will review a
trial court's decision to grant or deny the
motion under either a de novo or an abuse of
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discretion standard of review." (Internal
quotations and citations omitted.) Marquez v.
Jackson, 9th Dist. Lorain No. 16CA01 I 049,
2018-Ohio-346, ¶ 11. "If the stated grounds for
a new trial involve[] a
question of law, the de novo standard of review
applies. If the basis for a new trial involves the
determination of an issue left to the trial court's
discretion, the abuse of discretion standard
applies." (Internal quotations and citations
omitted.) Id.
{¶80} Civ.R. 59(A) provides in relevant
part:
A new trial may be granted to all or any
of the parties and on all or part of the
issues upon any of the following grounds:
(1) Irregularity in the proceedings of the
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court, jury, magistrate, or prevailing
party, or any order of the court or
magistrate, or abuse of discretion, by
which an aggrieved party was prevented
from having a fair trial;
***
(8) Newly discovered evidence, material
for the party applying, which with
reasonable diligence he could not have
discovered and produced at trial[.]
Civ.R. 59(A)(l)
{¶81} The Defendants make several
arguments as to why they are entitled to relief
under Civ.R. 59(A)(1).
{¶82} First, they assert that the Herholds
and Herholds' counsel were repeatedly allowed to
refer to the fill dirt as excessive and/or illegal.
A-91
While the Defendants mention the use of the
phrase "excessive" fill, the focus of their argument
is on the use of the word "illegal," because of the
connotations that accompany that word. However,
the Defendants have not pointed to anywhere in
the transcript where the phrase "illegal" fill was
actually used by the Herholds or the Herholds'
counsel. See App.R. 16(A)(7). In their brief, the
Defendants have pointed to places in the transcript
where
the
words
excess,
excessive,
and
unauthorized fill appear, but not to anywhere the
word illegal is used in terms of fill dirt. Thus, even
assuming use of such word was improper, the
Defendants have not demonstrated that the word
was used.
the
{¶83} The Defendants also again challenge
testimony of Mr. Wilk asserting that they were
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never given any notice that Ohio EPA was taking
administrative action against them and that they
had no way to know that Ohio EPA would enforce
a statute that was not enacted at the time the
Property sold. This Court has addressed the issue
with the statute (R.C. 6111.03) supra, and that
contention has no merit. With respect to the
Defendants' argument concerning notice of
administrative action, the Defendants have not
pointed to anywhere in the record that evidences
that any action, administrative or otherwise, was
actually taken by Ohio EPA against the
Defendants concerning the Property. Nor have the
Defendants explained why Mr. Wilk's testimony
entitled them to a new trial. See App.R. 16(A)(7).
{¶84} Additionally, the Defendants point to
several objections they raised during the trial and
comments made by the trial court in response.
A-93
The Defendants challenge a portion of the
following comments made by the trial court after
it overruled an objection by the Defendants. The
trial court stated:
[T]he
record
should
reflect
that
the
defendant has a continuing objection to all
references
to
mortgages.
Ladies
and
gentlemen, at the end of the trial, I'm going
to instruct you on how you would compute
damages if you've found liability against
the defendant, because the defendants are
liable. So my instruction to you would be
that
when
you
look
at those
jury
instructions, those jury instructions will
tell you - guide you through deliberations.
It may very well be that there could be a
situation where you find as a juror where
A-94
the plaintiff believes certain items of
damage were proved, but you find they are
not
part
of
the
damages.
Do
you
understand what I'm saying? What I'm
trying to say is, is that the fact that I'm
allowing this evidence does not mean that
you have to make a finding that way,
because you would base your finding on
the instructions. You got me on that?
{¶85} The trial court then asked whether
that explanation was satisfactory to the parties
and both sides responded affirmatively. In light
of the Defendants' acquiescence, they have not
demonstrated the trial court erred in denying
their motion for new trial on that basis.
{¶86} Defendants also point to a comment
by the trial court made while sustaining one of
the Defendants' objections. The trial court told
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the jury to disregard the last comment as the
trial court found it irrelevant. The trial court
then said "[i]t is not part of the damages [the
Herholds] [are] going to recover." While such a
statement could be viewed as improperly
opining that the Herholds would recover
damages, the Defendants did not object to the
comment by the trial court or move to have it
stricken. Thus, as above, the Defendants have
not demonstrated that the comment warranted
a new trial.
{¶87} The Defendants also challenge the
trial court allowing leading questions, allowing
Mr. Wilk to illustrate the fill on a document he
was not familiar with, and in disallowing a jury
view of the Property. However, the Defendants
have not explained how these comments
A-96
prejudiced them in such a way as to warrant a
new trial. See App.R. 16(A)(7). We note that a
trial court has discretion to allow leading
questions under certain circumstances, see
State v. Liddle, 9th Dist. Summit No. 23287,
2007-Ohio-1820, ¶ 30, citing Evid.R. 61l(C), and
also has discretion in determining whether to
grant a jury view. See Barker v. Geotech Servs.,
9th Dist. Summit No. 22742, 2006-Ohio-3814, ¶ 4.
{¶88} Given the foregoing, we cannot say
that the trial court erred in denying the
Defendants' motion for new trial pursuant to
Civ.R. 59(A)(l).
Civ.R. 59 (A)(8)
{¶89} As noted above, Civ.R. 59(A)(8) deals
with a motion for new trial based upon "[n]ewly
discovered evidence,
material
for the party
A-97
applying, which with reasonable diligence he could
not have discovered and produced at trial[.]" Civ.R.
59(A)(8).
{¶90} The Defendants argued below and on
appeal that, subsequent to the trial, they
discovered evidence that the fill dirt from the
Property was not properly removed as claimed by
Mr. Wilk. Mr. Smith had a conversation with an
engineer, who indicated that there might be
historical photos of the Property available. The
Defendants claimed that the historical photos
that were found were from April 9, 2005 (before
the fill dirt was removed) and February 28, 2006
(after the fill dirt was removed). The Defendants
argue that the photos demonstrate that the fill
dirt was not removed from the Property and,
instead, was spread on the Property and an
adjoining lot. The Defendants' motion was
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accompanied by an affidavit by Mr. Smith, an
affidavit by the engineer, and photos.
{¶91} "[B]efore a new trial may be granted
on the basis of newly discovered evidence, the
evidence (1) must be such as will probably change
the result if a new trial is granted, (2) must have
been discovered since the trial, (3) must be such
as could not in the exercise of due diligence have
been discovered before the trial, (4) must be
material to the issues, (5) must not be merely
cumulative to former evidence, and (6) must not
merely impeach or contradict the former
evidence." (Internal quotations and citations
omitted.) Cooper v. Nadeau, 9th Dist. Wayne No.
09CA0032, 2010-0hio-2150, ¶14. Even assuming
the Defendants satisfied the other elements, the
Defendants have not explained why this newly
discovered evidence could not have been
A-99
discovered before trial, particularly given the age
of the photos that they claim are newly
discovered.
{¶92} Thus, we cannot say that the trial
court erred in denying the Defendants' motion for
a new trial based upon newly discovered evidence.
{¶93}
Defendants'
seventh
assignment of error is overruled.
III.
{¶94} The Defendants' assignments of error
are overruled. The outstanding motion to take
judicial notice of a filing in a separate proceeding
is denied. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this
appeal.
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We order that a special mandate issue out of
this Court, directing the Court of Common Pleas,
County of Summit, State of Ohio, to carry this
judgment into execution. A certified copy of this
journal entry shall constitute the mandate,
pursuant to App.R. 27.
Immediately upon the filing hereof, this
document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk
of the Court of Appeals at which time the period for
review shall begin to run. App.R. 22(C). The Clerk
of the Court of Appeals is instructed to mail a
notice of entry of this judgment to the parties and
to maim a notation of the mailing in the docket,
pursuant to App.R. 30,
Costs taxed to Appellants.
DONNA CARR
FOR THE COURT
A-101
SCHAFER, P.J.
TEODOSIO, J
APPEARANCES
Warner
Mendenhall,
Attorney
at
Law,
for
Appellants
Thomas A. Skidmore,
Appellees
Attorney at Law, for
A-102
APPENDIX C
IN THE COURT OF COMMON PLEAS
COUNTY OF SUMMIT
CASE NO. CV 2008-05-3634
ORDER
JUDGE JAMES L. KIMBLER
SHAWN A. HERHOLD, et al.
Plaintiffs,
-vsSMITH LAND COMPANY, LLC, et al.
Defendants,
This matter came before the Court upon
Defendants Smith Land Company and Robert G.
Smith’s Motion for Judgment Notwithstanding the
Verdict or in the Alternative for a New Trial,
Plaintiffs’ Response, and Defendants’ Reply.
A-103
Upon due consideration, the Court finds
such motion not well taken, and hereby
DENIES the same.
IT IS SO ORDERED.
JUDGE JAMES L. KIMBLER
Sitting by Assignment
#17JA1119
Pursuant to Art. IV, Sec. 6
Ohio Constitution
CC: ATTORNEY THOMAS A. SKIDMORE
ATTORNEY WARNER MENDENHALL
ATTORNEY KAREN L. EDWARDS-SMITH
A-104
APPENDIX D
IN THE COURT OF COMMON PLEAS
COUNTY OF SUMMIT
CASE NO. CV 2008-05-3634
JUDGE JAMES L. KIMBLER
FINAL JUDGMENT ENTRY
(Final and Appealable)
SHAWN A. HERHOLD, et al.
Plaintiffs,
-vsSMITH LAND COMPANY, LLC, et al.
Defendants,
This matter came on for hearing September
18, 2017 on the Plaintiffs' Motion for Attorney
Fees and Prejudgment Interest filed July 28, 2017.
A-105
The Motion for Attorney Fees is based upon the
Jury Verdict filed July 25, 2017, finding that
Counsel for the Plaintiffs is entitled to an award of
Attorney Fees. The Pre-Judgment Interest is
based in part on a contractual claim pursuant to
R.C. 1343.03(A) and in part on a fraud claim
pursuant to R.C. l343.03(C).
ATTORNEY FEES
I have reviewed the case law provided
by the Plaintiffs' counsel and factors to
consider set-forth in Cambridge Co., Ltd. -vs.Testa, Inc., 9th Dist. No. 23925, 2008-Ohio-l
056. I have reviewed the following Exhibits
submitted by the Plaintiff:
► Exhibit I - Affidavit of Attorney Thomas A.
Skidmore, Esq.
A-106
► Exhibit I (A) - Itemization of Time and Expenses
submitted by Attorney Thomas A. Skidmore, Esq.
► Exhibit 3 -Judgment Entry filed January
22, 2015
In the Judgment Entry filed January 22,
2015, Judge Richard Reinbold found that the legal
issues in this matter were complex and required
counsel to become well versed in a number of
different areas from environmental law, (both
federal and state) to bankruptcy law to public
administration law to real estate law. Judge
Reinbold found that this case was labor intensive
and required a high level of skill. My finding is
consistent in that I also find that the legal issues
were complex and that the case which culminated
in trial was labor intensive.
I find the experience, reputation and
A-107
ability of Attorney Skidmore substantiates the
hourly rate(s) as set forth in Exhibit 1 and
Exhibit 1(A) and that said hourly rates are
appropriate for the Summit County area.
Defense counsel has had an opportunity to
review Plaintiffs Exhibit 1 and Exhibit I A and
concedes that if the attorney's fees are awarded
the hourly rate is reasonable and necessary.
Defense counsel argues though that attorney's
fees should not be awarded for both trials or the
appeal which followed Judge Parkers ruling
which overturned the Jury Verdict from the first
trial and granted the Defendants a new trial.
I find that the attorney's fees submitted by
Plaintiffs' counsel in the above-entitled action
are both reasonable and necessary, however I
find the attorney's fees beginning of the first day
A-108
of trial on May 12, 2014, running through the
granting of the Motion for New Trial ·and the
subsequent Appeal filed by the Plaintiffs, to be
excluded from consideration and this award.
According to Exhibit 1(A) - the excluded period
would run from May 12, 2014 until September
14, 2016.
THEREFORE, consistent with the finding
of the Jury to award the Plaintiff their attorney
fees, I hereby award Thomas A.
Skidmore/Thomas A. Skidmore Co., L.P.A. FortyEight Thousand Sixty-Two Dollars and FiftyFive Cents ($48,062.55).
PREJUDGMENT INTEREST
The Plaintiff has further moved the Court
to award prejudgment interest on the jury award
of $37,700 for Breach of Contract, the jury award
A-109
of $5,000.00 for Fraud and upon the award for
punitive damages in the amount of $165,000.00.
Pursuant to the finding of Judge Richard D.
Reinbold and consistent as set forth herein in the
breach of contract action, prejudgment interest is
mandatory and the determination of the starting
date upon which the calculation should begin. See
Zeck v. Sokol, 9th Dist. No. 07CA0030-M, 2008Ohio- 727.
"The award of prejudgment interest
is compensation to the Plaintiff for a period of
time between the accrual of the claim and
judgment." Royal Elec. Corp. v. Ohio State
University, 73 Ohio St. 3d 110 (1995). "Each case
involved different facts and it is the job of the ...
court to determine the appropriate date based on
the evidence before it." Hutchenson v. State Auto
Ins. Co., 9th Dist. No. 2063666, 2002 WL 121202,
(Jan. 20, 2002). See also R.C. 1343.03.
A-110
Judge Richard D. Reinbold found that the
accrual of the Plaintiffs' claims arose July 7, 2002
under the case law as cited above. With this
finding, I agree. The prejudgment interest shall
run from the period forward under the breach of
contact claim consistent with the attached
Schedule A in the amount of Twenty-Six
Thousand Four Hundred Eighty-Five Dollars and
Seven Cents ($26,485.07) on the jury's award on
the Plaintiffs breach of contract claim. In
addition, the prejudgment interest on the jury's
award on the Plaintiffs fraud claim as set forth in
the attached Schedule A in the amount of
$3,341.66 which is calculated from July 7, 2002.
The Court hereby finds that prejudgment
interest is not appropriate to award to the jury's
verdict on punitive damages. Therefore, the
Plaintiff is not entitled to prejudgment interest on
A-111
the jury's verdict on punitive damages.
THEREFORE, this Court Grants Final
Judgment and awards to the Plaintiffs, Shawn
Herhold and Malavanh Herhold aka Malavanh
Rassovong as against the Defendants Smith
Land Company, LLC and Robert Smith jointly
and severally as follows:
1. The sum of THIRTY-SIX THOUSAND SEVEN
HUNDRED DOLLARS AND NO CENTS
($36,700.00) on the Breach of Contract claim and
Jury Verdict and Award filed July 24, 2017;
2. The sum of TWENTY-SIX THOUSAND FOUR
HUNDRED AND EIGHTY-FIVE DOLLARS AND
SEVEN CENTS ($26,485.07) in Prejudgment
Interest on the Breach of Contract claim and Jury
Verdict and Award;
3. The sum of FIVE THOUSAND THREE
A-112
HUNDRED DOLLARS AND NO CENTS
($5,300.00) on the Fraud claim and Jury Verdict
and Award filed July 24, 2017;
4. The sum of THREE THOUSAND THREE
HUNDRED AND FORTY ONE DOLLARS AND
SIXTY-SIX CENTS ($3,341.66) in Prejudgment
Interest on the Fraud claims and Jury Verdict
and Award;
5. The ONE HUNDRED AND SIXTY-FIVE
THOUSAND DOLLARS AND NO CENTS
($165,000.00) on the Punitive Damage claim and
Jury Verdict and Award filed July 25, 2017;
6. The sum of FORTY-EIGHT THOUSAND
SIXTY-TWO DOLLARS AND FIFTY-FIVE
CENTS ($48,062.55) for attorney fees to Thomas
A. Skidmore, Esq. and Thomas A. Skidmore Co.,
LP.A. pursuant to the Jury Verdict and Award
A-113
filed July 25, 2017.
7. Statutory Interest shall run from the filing date
hereof;
8. The costs are to be taxed to the Defendants,
Smith Land Company, LLC and Robert Smith.
IT IS SO ORDERED.
This is a Final Appealable Order and there is
no just cause for delay.
Judge James Kimbler
Sitting by Assignment
#17JA1119
Pursuant to Art. IV, Sec. 6 Ohio Constitution Pursuant to Civ. R.
58(B), the Clerk of Courts shall serve upon all parties otice of this
Judgment and its date of entry upon the Journal.
Judge James Kimbler
Sitting by Assignment #17JA1119
Pursuant to Art. IV, Sec. Ohio Constitution
A-114
APPENDIX E
STATE OF OHIO
COUNTY OF SUMMIT
IN THE COURT OF APPEALS
C.A. No. 28032
NINTH JUDICIAL DISTRICT
SHAWN A. HERHOLD, et al.
Appellees
v.
THE SMITH LAND COMPANY, et al.
Appellants
APPEAL FROM JUDGMENT ENTERED IN THE
COURT OF COMMON PLEAS,
COUNTY OF SUMMIT OHIO
CASE No. CV2008 05 3634
A-115
DECISION AND JOURNAL ENTRY
Dated: July 13, 2016
SCHAFER, Judge
{¶1}
Plaintiff-Appellants, Shawn Herhold and
Malavanh Herhold (collectively “the Herholds"),
appeal from the judgment of the Summit County
Court of Common Pleas. This Court affirms.
I.
{¶2} This appeal stems from the sale of certain
property on Brunsdorf Road in Fairlawn, In July
2002, the Herholds purchased the property from
Defendant-Appellees, Smith Land Company, LLC
("Smith Land") and its president, Robert Smith
(collectively, "the Defendants"), According to the
Herholds, the Defendants represented to them that
they would be able to build a home on the property,
Following their purchase, however, the Herholds
discovered that the property suffered from a material
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defect and was not suitable for building, The
Herholds brought suit against the Defendants for
breach of contract, breach of the warranty of title,
fraud, misrepresentation, and fraudulent
concealment/inducement. They alleged that the
Defendants failed to disclose the fact that the
property "was comprised of substantial wetlands and
illegal fill which severely restricted [its] use and
purpose • • • ." The Herholds sought compensatory
damages, punitive damages, interest, and attorney
fees.
{¶3} Following an unsuccessful
motion
to
dismiss the Herholds' complaint for failure to state a
claim,
the Defendants
filed
their
answer
and,
subsequently, a motion for summary judgment. The
court denied the motion for summary judgment and set
the matter for trial. The trial was delayed for some
A-117
time, however, due to the occurrence of several events.
First, Smith Land filed for bankruptcy and the
Herholds had to obtain relief from the automatic
bankruptcy
stay
in
federal
court.
Second,
the
Defendants' counsel withdrew and, once they obtained
new counsel, he filed a motion to disqualify the
Herholds' counsel. Third, after the court denied the
motion to disqualify, the Defendants appealed from the
denial; the result of which was a dismissal for lack of a
final, appealable order. See Herhold, et al. v. Smith
Land Company, LLC, et al., 9th Dist. Summit No.
27174 (Jan. 6, 2014). Following the resolution of all of
the foregoing issues, the matter went to trial. At trial,
the Herholds dismissed their claim against the
Defendants for breach of warranty of title.
{¶4} The jury found in favor of the Herholds
and awarded them $55,000 on their breach of
contract claim, $65,000 on their fraud claims, and
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$35,000 in punitive damages. Additionally, the jury
determined that the Herholds should be awarded
their attorney fees. On May 20, 2014, the trial court
issued a journal entry, memorializing the jury's
verdict and setting the matter for a hearing on the
amount of attorney fees to be awarded. The Herholds
then filed a motion for prejudgment interest. Before
either issue was resolved, however, the Defendants
appealed from the jury's award. This Court once
again dismissed the attempted appeal for lack of a
final, appealable order. See Herhold, et al. v. Smith
Land Company, et al., 9th Dist. Summit No. 27404
(June 26, 2014).
{¶5}
Following this Court's dismissal, the
Ohio Supreme Court assigned a visiting judge to
the case. The visiting judge held a hearing on the
amount of attorney fees to be awarded as well as on
the issue of prejudgment interest. On January 22,
A-119
2015, the visiting judge awarded the Herholds
$39,744 in attorney fees, $32,407.82 in prejudgment
interest on their contract claim, and $36,854.91 in
prejudgment interest on their fraud claims. The
visiting judge then stepped aside, and the original
trial judge returned to preside over the matter.
{¶6} On February 19, 2015, the Defendants
filed a motion for judgment notwithstanding the
verdict or, in the alternative, a motion for a new trial.
The Herholds sought to strike the motion on the
basis of timeliness, but the trial court determined
that the motion was timely. The Herholds then filed
a brief in opposition to the motion, and the
Defendants filed a reply.
{¶7} Before the trial judge could rule on the
Defendants' motion, Mr. Smith filed an affidavit of
disqualification with the Ohio Supreme Court,
seeking to remove her from the case. The Defendants'
A-120
counsel then filed a motion to withdraw from
representation because Mr. Smith had filed the
affidavit without consulting him. The Supreme Court
ultimately denied the affidavit of disqualification,
but the trial judge nevertheless recused herself from
the case. The matter was reassigned to another
judge, who also recused herself, and a third, who
likewise recused herself.
{¶8} On September 21, 2015, the fourth trial
judge issued an order on the Defendants' motion for
judgment notwithstanding the verdict or, in the
alternative, a new trial. The trial court granted
judgment notwithstanding the verdict to Mr. Smith
on the issue of whether he was individually liable for
a breach of contract. Because the Herholds did not
present evidence that would have allowed them to
pierce the corporate veil, the court determined, it
entered judgement in Mt. Smith's favor on their
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breach of contract claim. The court refused, however,
to enter a judgment notwithstanding the verdict in
favor of: (1) Smith Land on the breach of contract
claim, or (2) the Defendants on the fraud claims.
{¶9} As to the Defendants' alternative request
for a new trial, the court announced
that it
"anticipated ruling" in the Defendants' favor. The
court wrote that the jury's damage award appeared to
be excessive and contrary to law because: (1) it
awarded damages on two claims even though the jury
instructions alleged identical conduct in support of
each claim; and (2) the jury instructions inadequately
defined the measure of the damages.
The court
further wrote that a new trial was warranted because
the instructions presupposed certain matters had
been decided and "unduly emphasized [the Herholds']
theory of the case." Nevertheless, the court did not
grant the Defendants' motion in its September 21st
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ruling. Because the court acknowledged that it had
"founded its conclusion on grounds not asserted by
[the Defendants]" in their motion, it set the matter for
further hearing. The court ruled that, pursuant to
Civ.R. 59(D), a hearing would be held for the purpose
of allowing the Herholds an opportunity to be heard
on the court's "anticipated ruling."
{¶10} On October 1, 2015, the court held a
hearing to address the issue
of
its "anticipated
ruling" on the Defendants' request for a new trial.
Following the hearing, the Herholds moved for a new
trial on the issue of Mr. Smith's individual liability on
their breach of contract claim. On November 4, 2015,
the court granted the Herholds' request for a new
trial on the issue of Mr. Smith's individual liability.
Further, it granted the Defendants' request for a
new trial on all of the Herholds' other claims. In
doing so, the court "affirm[ed] and incorporate[d]
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*** the reasoning from its September 21st order
***."
{¶11} The Herholds now appeal from the trial
court's judgment and raise three assignments of error
for our review. For ease of analysis, we rearrange the
assignments of error.
II.
ASSIGNMENT OF ERROR III
THAT SMITH AND SMITH LAND COMPANY'S
MOTION FOR JNOV AND NEW TRIAL WAS NOT
TIMELY FILED AND THEREFORE THE LOWER
COURTS
GRANTING
SMITH
JUDGMENT
NOTWITHSTANDING THE VERDICT AND BOTH
SMITH AND SMITH LAND A NEW TRIAL IS IN
ERROR.
{¶12} In their third assignment of error, the
Herholds argue that the trial court erred by
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considering the Defendants' motion for judgment
notwithstanding the verdict because it was untimely.
We disagree.
{¶13} Civ.R. 50(B) governs motions for
judgment notwithstanding the verdict. The rule
provides, in relevant part, that
[w]hether or not a motion to direct a verdict has
been made or overruled and not later than
twenty-eight days2 after entry of judgment, a
party may serve a motion to have the verdict
and any judgment entered thereon set aside
and to have judgment entered in accordance
with the party's motion ***.
Civ.R. 50(B). The Herholds argue that the trial court
erred by granting the Defendants'
motion for
judgment notwithstanding the verdict because the
Defendants filed their motion more than 28 days after
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the court entered its judgment in this matter.
According to the Herholds, the judgment in this
matter was entered on May 20, 2014.
{¶14} The trial court's May 20, 2014 journal
entry memorialized the jury's verdict in this matter.
That entry was not a final judgment, however,
because the trial court still had to resolve the
outstanding issues of attorney fees and
prejudgment interest. See Civ.R. 54(A) ("'
Judgment' *** includes a decree and any order from
which an appeal lies as provided in [R.C.] 2505.02 * *
*."); Herhold, et al. v. Smith Land Company, et al.,
9th Dist. Summit No. 27404 (June 26, 2014)
(dismissing appeal because court had yet to issue a
final judgment). The court resolved those issues and
entered its judgment on January 22, 2015. The final
judgment in this matter, therefore, was entered on
that date. The Defendants then filed their motion for
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judgment notwithstanding the verdict on February
19, 2015. Because the Defendants filed their motion
within 28 days of the entry of judgment, their motion
was not untimely, and the trial court did not err by
considering it. The Herholds' third assignment of
error is overruled.
ASSIGNMENT OF ERROR I
THAT THE LOWER COURT ERRED AS A
MATTER OF LAW WHEN, ON ITS OWN
INITIATIVE, MORE THAN FOURTEEN DAYS
AFTER ENTRY OF JUDGMENT ORDERED A
NEW TRIAL IN VIOLATION OF RULE 59(D) OF
THE OHIO RULES OF CIVIL PROCEDURE.
{¶15} In their first assignment of error, the
Herholds argue that the trial court erred when it
granted the Defendants a new trial, on its own
initiative, beyond Civ.R. 59(D)'s prescribed time
limit. We do not agree that the court's ruling was
untimely.
{¶16} Civ.R. 59(D) provides for the granting
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of a new trial "[o]n initiative of court." The rule
provides as follows:
Not later than twenty-eight days after entry of
judgment the court of its own initiative may
order a new trial for any reason for which it
might have granted a new trial on motion of a
party.
The court may also grant a motion for a new
trial, timely served by a party, for a reason not
stated in the party's motion. In such case the
court shall give the parties notice and an
opportunity to be heard on the matter. The
court shall specify the grounds for new trial in
the order.
Under Civ.R. 6(B), a trial court "may not extend the
time for taking any action under * •• Civ.R. 59(D)
•••, except to the extent and under the conditions
stated in [that rule]."
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{¶17} In their appellate brief, the Herholds
rely upon a former version of Civ.R. 59(D). The
former version of the rule contained a 14-day time
limit. Much like Civ.R. 50(B), the rule was amended,
effective July 1, 2013, to increase the prescribed time
limit to 28 days. The amendment applied to all
actions then pending, "except to the extent that [its]
application in a particular action * * • would not be
feasible or would work injustice • • • ." Civ.R.
86(JJ). Because the Herholds filed this action in
2008, it was pending when the amendment to Civ.R.
59(D) went into effect.
{¶18} In ruling on the Herholds' motion to strike the
Defendants' motion for judgment notwithstanding
the verdict or, alternatively, a new trial, the trial
court employed the amended versions of both Civ.R.
50(B) and Civ.R. 59(D). Relevant to this assignment
of error, the court found that "a motion for new trial
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• • • can be made either before or after a final,
appealable order, but no later than 28 days after the
final, appealable order." The Herholds never argued
that the 28-day time limit should not apply because
it "would not be feasible or would work injustice." Id.
Moreover, on appeal, they rely upon the amended
version of Civ.R. 50(B) in support of their third
assignment of error. That assignment of error
concerns the portion of the Defendants' motion that
requested judgment notwithstanding the verdict.
The Herholds have not explained why this Court
should apply two different versions of the Civil Rules
to the same motion. See App.R. l6(A)(7). Because this
suit was pending when the amendment to Civ.R.
59(D) went into effect and the Herholds have not
argued that it was error for the lower court to rely on
the amended version of the rule, we likewise rely on
it in addressing the Herholds' argument.
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{'¶19} Civ.R. 59(D) consists of two paragraphs.
The first paragraph addresses a court's ability to
order a new trial, on its own initiative, when no one
has moved for a new trial within the prescribed time
limit. See Stackhouse v. Logangate Property Mgt.,
172 Ohio App.3d 65, 2007-Ohio-3171, ¶ 31-32 (7th
Dist.); Cleveland v. 8409 Euclid Ave., Inc., 8th Dist.
Cuyahoga Nos. 46555, 46630, 46739 & 46740, 1984
WL 4505, *3-4 (Mar. 2, 1984). In those instances, a
trial court only has 28 days to order a new trial "for
any reason for which it might have granted a new trial
on motion of a party." Civ.R. 59(D). See also CitiBank
v. Abu-Niaaj, 2d Dist. Green No. 2011 CA 45, 2012Ohio-2099, ¶ 13.
The second paragraph of Civ.R.
59(D) addresses a court's ability to order a new trial
when (I)
a timely motion has been filed, but (2)
the court intends to grant the new trial "for a reason
not stated in the party's motion." Civ.R. 59(D). In
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those instances, the rule does not place a time limit on
the court's ruling. See Stackhouse at '1[ 32; see also
Kelly v. Moore, 376 F.3d 481,481 (5th Cir.2004)
(interpreting the federal version of the rule).
{¶20} As previously noted, the Defendants' filed
their motion for judgment notwithstanding the verdict
or, alternatively, a new trial within 28 days of the
entry of judgment in this matter. Their motion
indicates that it was served upon the Herholds that
same day, and
the Herholds have not disputed
service. Therefore, the Defendants' motion was timely
filed under Civ.R. 59. See Civ.R. 59(8). Because their
motion was timely filed, the second paragraph
of Civ.R. 59(D) applied to the court's ruling, and it
was not subject to the 28-day time limit contained in
the first paragraph of the rule. See Civ.R. 59(D);
Stackhouse at ¶ 32-33. See also Kelly at 481.
We,
therefore, reject the Herholds' argument that the
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trial court issued a ruling beyond Civ.R. 59(D)'s
prescribed time limit. The Herholds' first assignment
of error is overruled.
ASSIGNMENT OF ERROR II
THAT THE LOWER COURT ERRED AS A
MATTER OF LAW WHEN IT GRANTED A NEW
TRIAL TO SMITH LAND AND SMITH[.]
{¶21} In their second assignment of error, the
Herholds
argue that
the trial
court erred by
granting the Defendants' motion for new trial.
Because the trial court based its decision on items
that are not a part of the record, this Court must
presume regularity and affirm the trial court's
decision.
{¶22}
"[A]n appellate court's review is
restricted to the record provided by the appellant to
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the court. Accordingly, the appellant assumes
the duty to ensure that the record, or the
portions necessary for review on appeal, is filed
with the appellate court." (Internal citations and
quotations omitted.)
Bank of Am., NA. v.
Wiggins, 9th Dist. Wayne No. 14AP0033, 2015Ohio- 4012, ¶ 13. Accord Lunato v. Stevens
Painton
Corp.,
9th
Dist.
Lorain
No.
08CA009318, 2008- Ohio-3206, ¶ 11 ("This Court
has repeatedly held that it is the duty of the
appellant to ensure that the record on appeal is
complete."). "When the record is incomplete,
this Court must presume regularity in the trial
court's proceedings and affirm its decision."
Helms v. Gains, 9th Dist. Summit No. 27616,
2015-0hio-4000, ¶4.
{¶23} The trial court here ordered a new
trial because it concluded that,
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upon review of the jury's verdicts, its answers
to interrogatories, the manner in which the
jury was instructed, the phrasing of the
jury interrogatories, and the damages
awarded, * * * the jury's verdicts and damage
awards and the resulting judgment were
contrary to law, and not sustained by the
weight of the evidence.
The court wrote that the jury's damage awards
appeared to be duplicative because the jury
instructions did not differentiate between the
conduct in support of the breach of contract claim
and the conduct in support of the fraud claims.
The court further wrote that the instructions
"unduly emphasized [the Herholds'] theory of the
case" and were "misleading" and grammatically
unsound. Additionally, the court found fault with
the instructions insofar as they defined the
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different measures of damages because it found
the instructions to be incomplete in several
respects. The court ultimately concluded that the
jury was not properly instructed and that a new
trial was "required under the circumstances."
{¶24} Upon review, the record does not
contain any of the trial exhibits or a copy of the
jury instructions that the court read to the jury.
On April 29, 2014, both parties filed proposed
jury instructions. Neither the parties, nor the
court, however, ever filed the finalized jury
instructions that were read to the jury at trial.
When the Defendants filed their motion for
judgment notwithstanding the verdict or,
alternatively, a new trial, they had an expedited
transcript prepared and filed that transcript in
the lower court. The transcript they filed,
however, does not include the jury instructions,
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and the Herholds never had a separate transcript
prepared. The record, as filed, only contains the
transcript of the testimony given at trial. It does
not contain any discussions regarding the jury
instructions, the instructions themselves, or the
exhibits.
{¶25} We note that, in setting forth its
"anticipated ruling" on the Defendants' motion,
the trial judge quoted from the jury instructions.
The judge did not elaborate as to how he secured
the instructions, given that no one filed them and
given that he was not the judge who presided
over the trial in this matter. Even assuming that
the instructions upon which he relied were, in
fact, the same instructions given to the jury,
however, this Court cannot rely on the quoted
portions of the instructions to reach a decision in
this matter. The trial judge did not quote the
A-137
instructions in their entirety and took issue with
them, in part, because he found them
to be incomplete. Without the complete
instructions, as read to the jury at trial, this
Court cannot determine whether the trial court
erred in reaching its ruling.
{¶26} This Court is not without sympathy
for the Herholds. They waited six years for this
matter to go to trial and then discovered,
another 16 months later, that the fourth trial
judge in this matter was vacating the unanimous
jury verdicts in their favor. Because the Herholds
are the appellants here, however, it was their
burden to ensure that the record was complete
and contained all of the portions necessary for
review on appeal." Wiggins, 20I5-Ohio-40 I2, at ¶
13. Accord-Lunato, 2008-Ohio-3206, at ¶ 11.
Without the portions of the record necessary to
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review the trial court's ruling in this matter,
this Court has no choice but to "presume
regularity in the trial court's proceedings and
affirm its decision." Helms, 2015-Ohio-4000, at
¶ 4. Accordingly, the Herholds' second
assignment of error is overruled on that basis.
III.
{¶27} The Herholds' assignments of error
are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this
appeal.
We order that a special mandate issue out
of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry
this judgment into execution. A certified copy of
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this journal entry shall constitute the mandate,
pursuant to App.R. 27.
Immediately upon the filing hereof, this
document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk
of the Court of Appeals at which time the period for
review shall begin to run. App.R. 22(C). The Clerk
of the Court of Appeals is instructed to mail a
notice of entry of this judgment to the parties and
to make a notation of the mailing in the docket,
pursuant to App.R. 30.
Costs taxed to Appellants.
JULIE A. SCHAFER
FOR THE COURT
MOORE, P.J.
WHITMORE, J
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APPENDIX F
IN THE COURT OF COMMON PLEAS
COUNTY OF SUMMIT
CASE NO. CV 2008-05-3634
JUDGE TOM PARKER
FINAL JUDGMENT ENTRY
(Final and Appealable)
SHAWN A. HERHOLD, et al.
Plaintiffs,
-vsSMITH LAND COMPANY, LLC, et al.
Defendants,
In an order dated September 21, 2015, the
court indicated that it intended to grant
judgment notwithstanding the verdict on
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plaintiffs' breach of contract claim against
Defendant Robert G. Smith and to grant
defendants' motion for a new trial on the
remaining claims involved in this lawsuit.
Because the court was considering ordering a
new trial on grounds not stated in defendants'
motion, the court gave notice of a hearing on
October 1, 2015 in conformance with Civil Rule
59(D).
On October 1, 2015, the court conducted a
hearing at which counsel for both plaintiffs and
defendants were present. Both attorneys stated
their arguments on the record related to the
court's September 21, 2015 order.
On October 19, 2015, plaintiffs, Shawn A.
Herhold and Malavanh Herhold, also filed a
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written response to the court's order. In their
response, plaintiffs requested the court to
reconsider its decision to grant a new trial in
this case. Plaintiffs cited, in part, the lengthy and
difficult history between the parties to this action
and his desire to reach a conclusion of this case.
Plaintiffs also moved, in accordance with Civil Rule
59(C)(2), for a new trial on the breach of contract
claim against Defendant Robert G. Smith, urging
the court not to enter judgment notwithstanding the
verdict as to that claim.
On October 29, 2015, defendants, Robert G.
Smith and The Smith Land Company. filed a
response joining in plaintiffs' request for a new
trial. However, defendants requested that the
court grant a new trial on all of the claims, not
merely on the claim upon which the court had
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indicated that it intended to grant judgment
notwithstanding the verdict.
Upon due consideration of the facts and
procedural history of this case, the arguments
presented at the October 1st hearing, plaintiffs'
response to the court's order, defendants·
response, Civil Rule 59 and other applicable law,
the court hereby orders as follows:
I. The court hereby DENIES, in part, and
GRANTS, in part, plaintiffs' motion to
reconsider. Because the court is granting
plaintiffs' request for a new trial on the breach
of contract claim against Defendant Robert G.
Smith, it will not enter final judgment
notwithstanding the verdict as to that claim;
2. The court hereby GRANTS plaintiffs' request
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for a new trial as to the breach of contract
claim against Defendant Robert G. Smith;
3. The court affirms and incorporates herein the
reasoning from its September 21" order and
hereby GRANTS defendants' motion for a new
trial on the other claims asserted by the parties
to this lawsuit; and
4. The court hereby schedules a status conference
to take place on December 9, 2015 at 8:30
a.m. for the purpose of scheduling.a new trial
date. However, if any party has appealed the
court's decision, the case will be stayed and the
December 9th status conference will not go
forward.
IT IS SO ORDERED.
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This is a final appealable order, with no just
cause for delay.
Tom Parker
JUDGE TOM PARKER
Pursuant to Civ.R. 58(8), the Clerk of Courts
shall serve upon all parties notice of this judgment
and its date of entry on the Journal.
Tom Parker
JUDGE TOM PARKER
Attorney Thomas A. Skidmore
Attorney Bradley S. LeBoeuf
CR:KAS
08-363402
A-146
APPENDIX G
IN THE COURT OF COMMON PLEAS
COUNTY OF SUMMIT
CASE NO. CV 2008-05-3634
JUDGE CALLAHAN
JUDGMENT ENTRY
SHAWN A. HERHOLD, et al.
Plaintiffs,
-vsSMITH LAND COMPANY, LLC, et al.
Defendants,
This matter came before the Court for a Jury
Trial on Plaintiffs' Complaint on May 12, 2014.
Plaintiffs' Complaint contained six causes of
actions: breach of contract (Count 1), breach of
warranty of title (Count 2), fraud (Count 3),
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misrepresentation (Count 4), fraudulent
concealment/inducement (Count 5), and negligence
(Count 6). The named Defendants included Smith
Land Company, Inc., Robert G. Smith, Lawyer's
Title Insurance Corporation, Sherri Costanza, and
Stouffer Realty.
Plaintiffs dismissed, without prejudice,
Defendants Sherri Costanza and Stoufer Realty on
December 30, 2008. Additionally, Plaintiffs
dismissed, without prejudice, Defendant Lawyer's
Title Insurance Corporation on September 9, 2009
regarding Count 6 of the Complaint. Lastly,
Plaintiffs orally dismissed, without prejudice,
Count 2, breach of warranty of title, on May 15,
2014, during the jury trial. For purposes of the
jury trial, the only remaining Defendants were
Smith Land Company, Inc. and Robert G. Smith
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as to Plaintiffs' claims of breach of contract (Count
1), fraud (Count 3), misrepresentation (Count 4),
and fraudulent concealment/inducement (Count
5).
Defense counsel orally moved on May 12,
2014, prior to the jury trial beginning, to bifurcate
the punitive damages from the compensatory
damages as to the fraud claims. Defendants' oral
motion for bifurcation was granted and the jury
trial proceeded against Defendants Smith Land
Company, Inc. and Robert G. Smith as to the
issues of liability and compensatory damages for
the breach of contract and fraud claims.
The Jury was sworn and impaneled on May
12, 2014. The Jury returned a general verdict on
May 16, 2014 in favor of Plaintiffs Shawn and
Malavanh Herhold and against Defendants Smith
A-149
Land Company, Inc. and Robert G. Smith as to the
breach of contract and fraud claims. The Jury
awarded Plaintiffs Shawn and Malavanh Herhold
$120,000.00 in total compensatory damages. This
compensatory damages award represented
$55,000.00 for the breach of contract claim and
$65,000.00 for the fraud claims.
In light of the Jury's compensatory damage
award as to the fraud claims, the Jury returned
on May 19, 2014 for the second phase of the trial
regarding the issue of punitive damages and
attorney fees. The Jury returned a general verdict
on May 19, 2014 in favor of Plaintiffs Shawn and
Malavanh Herhold and against Defendants Smith
Land Company, Inc. and Robert G. Smith as to
punitive damages and attorney fees. The Jury
awarded Plaintiffs Shawn and Malavanh Herhold
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$35,000.00 in punitive damages and attorney fees
in an amount to be determined by the Court in a
future hearing.
The Jury having returned its verdict in
favor of Plaintiffs Shawn and Malavanh Herbold
in the amount of $120,000.00 for compensatory
damages, $35,000.00 for punitive damages, and
attorney fees, the Court hereby adopts the verdict
of the Jury and finds the issues in this case in
favor of Plaintiffs Shawn and Malavanh Herhold
and against Defendants Smith Land Company,
Inc. and Robert G. Smith and awards
$120,000.00 for compensatory damages,
$35,000.00 for punitive damages, and attorney
fees to Plaintiffs.
IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that judgment is rendered in
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favor of Plaintiffs Shawn and Malavanh Herbold
and against Defendants Smith Land Company,
Inc. and Robert G. Smith. Plaintiffs Shawn
and Malavanh Herbold are awarded
$120,000.00 for compensatory damages,
$35,000.00 for punitive damages, and attorney
fees in an amount to be determined pending a
future hearing. Costs taxed to Defendants
Smith Land Company, Inc. and Robert G.
Smith.
IT IS FURTHER ORDERED, ADJUDGE
AND DECREED that an evidentiary
hearing regarding the reasonableness of
Plaintiffs' attorney fees will be held on May 30,
2014 at 10:30 a.m. Counsel is ordered to be
prepared to proceed with live testimony and
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other evidentiary support as to the
reasonableness of the attorney fees at the
hearing.
IT IS SO ORDERED.
JUDGE LYNNE S. CALLAHAN
cc: Attorney Thomas A. Skidmore
Attorney Warner Mendenhall
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APPENDIX H
DEPARTMENT OF THE ARMY
HUNTINGTON DISTRICT, CORPS OF
ENGINEERS
502 EIGHTH STREET
HUNTINGTON , WEST VIRGINIA 25701·2070
April 14, 2000
Operations and Readiness
Division Regulatory Branch
UN Trib Pigeon Creek 199900682
Ms. Karen Smith Smith Land Company
2891 Hudson-Aurora Road
Hudson, Ohio 44236
Dear Ms. Smith:·
I refer to a letter received on March 2, 2000,
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submitted by the Flickinger Group on behalf of the
Smith Land Company, requesting authorization to
place fill or dredged material into 0.945 acre of
jurisdictional wetland. The proposed fill area is
located above the headwaters of an unnamed
tributary to Pigeon Creek in the City of Fairlawn,
Summit County, Ohio. The proposed project involves
the construction of a residential, single-family
housing development on the 10-acre parcel. To
mitigate for impacts to jurisdictional wetlands, the
Smith Land Company proposes to purchase 2 acres
of wetlands at the Cleveland Museum of Natural
History Singer Bog in lieu fee program in the City of
Green, Summit County and Jackson Township, Stark
County, Ohio.
It has been determined that your work
meets the criteria for Nationwide Permit (NWP)
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Number 26 under the December 13, 1996 Federal
Register, Final Notice of Issuance, Reissuance,
and Modification of Nationwide Permits (61 FR
65874). The Ohio Environmental Protection
Agency issued 401 Water Quality Certification for
this Nationwide Permit.
This verification is valid until February 11, 2002.
If you have commenced or are under contract to
commence this activity prior to the above date,
you will have twelve additional months from the
above date to complete the activity under the
present terms and conditions of this nationwide
permit.
In view of the above, your project is
permitted subject to the terms and conditions of
the enclosed material. It is your responsibility to
A-156
ensure that your work conforms to all of the
environmental management conditions listed
within the enclosed material. Upon completion of
the work. the attached certification must be signed
and returned to this office.
Any impacts to the remaining 4.609 acres of
jurisdictional wetlands on the subject property would
require authorization from this office. Please be
aware that the nationwide permit authorization does
not obviate the requirement to obtain state or local
assent required by law-for the activity. ff you-have
any
questions concerning the above, please contact LeeA. Marcum at 304-529-5210.
Sincerely,
James M. Richmond
Chief, North Permit Section
A-157
Enclosures
Copy furnished:
Eric.Flickinger
Flickinger Wetland Services Group,
Inc. 7000 South Edgerton Road Suite
106
Cleveland, Ohio 44141
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APPENDIX I
QUIT CLAIM DEED
Smith Land Co., Inc., an Ohio Corporation, for
valuable consideration paid, grants, to the Smith
Land Co. whose tax mailing address is 2891 Hudson
Aurora Road, Hudson, Ohio 44236, the following
property: Legal description is attached as Exhibit
"A".
Prior Instrument Reference:
PM# PPN:
Witness my hand this 11th day of May, 2000.
Debra J. Simon
Robert G. Smith
Witness
Smith Land Co., Inc
By Robert G. Smith, Pres.
Jennifer L. Unrue
Witness
A-159
State of Ohio
}
SS
County of Summit}
The foregoing instrument was acknowledged
before me this 11th day of May, 2000 by Robert G.
Smith, President of Smith Land Co., Inc. on behalf of
the Corporation.
In Testimony Whereof I have I have hereunto set
my hand and official seal, at Akron, Ohio this 11th
day of May, 2000.
Jennifer L. Unrue Notary Public
This instrument prepared by
Attorney Karen EdwardsSmith
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CITY OF FAIRLAWN ZONING INSPECTOR
As approved by the
Fairlawn Planning Commission
This 13th day of April, 2000
L. V. Triola
Lawrence V. Triola
Building Zoning Inspector
TRANSFERRED IN COMPLIANCE
WITH SEC 319.202 REV. CODE
JAMES B. MCCARTHY, COUNTY AUDITOR
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GBC DESIGN, INC.
245 S. Frank Boulevard, Akron, Ohio 44313
Phone 330-836-0228
Email gbc@gbcdesign.com
April 7,2000
LEGAL DESCRIPTION
THE SMITH LAND COMPANY, INC. WOODBURY
ESTATES, BLOCK "A" PARCEL C
Situated in the City of Fairlawn, County of
Summit, State of Ohio and known as being part of
Original Lot 14 formerly Copley Township and also
known as being part of Block "A" of Woodbury
Estates as Recorded in Rec. #54363296 of the
Summit County Records and more fully described as
follows;
Beginning at a 2" pipe found at the northeasterly
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comer of said Block "A";
Thence S 00° 30' 48" E along the easterly line of
said Block ''A" a distance of 223.84 feet to a 5/8"
capped rebar (GBC Design, Inc.) to be set at the True
Place of Beginning for the parcel of land herein
described;
Thence continuing S 00° 30' 48" E along the
easterly line of said Block "A" a distance of 111.92
feet to a 5/8" capped rebar (GBC Design, Inc.) found;
Thence S 89° 29' 12" W along the southerly line of
said Block "A" a distance of 298.70 feet to a 5/8"
capped rebar (GBC Design, Inc.) found;
Thence N 00° 30' 48" W along the westerly line of
said Block "A" a distance of 20.21 feet to a 1" rebar
found;
· Thence N 16° 11’ 11” E Block “A”, a distance of
95. 75 feet to a 5/8" capped rebar (GBC Design, Inc.)
to be set;
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Thence N 89° 29' 12" E a distance of 271.18 feet
to the True Place of Beginning and containing 0.7385
acres of land, more or less as surveyed in April, 2000
by Louis J. Giffels Registered Surveyor No. 7790
with GBC Design, Inc. but subject to all legal
highways
and any restrictions, reservations or easements of
record.
Louis J. Giffels
Louis J. Giffels Reg No.7790
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APPENDIX J
DEPARTMENT OF THE ARMY
HUNTINGTON DISTRICT,
CORPS OF ENGINEERS 502 EIGHTH STREET
HUNTINGTON, WEST VIRGINIA 25701-2070
February 4, 2004
Operations and Readiness Division Regulatory
Branch Un Trib Pigeon Creek- 199900682-2
Laybourne & Goldsmith
ATIN: Richard L. Goldsmith, Jr. Key Building ·
Suite 900
Akron, Ohio 44308-3880
Dear Mr. Goldsmith:
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I refer to your correspondence received
November 24, 2003 inquiring if the future owners of
three recently platted residential lots (Parcels A-C)
owned by Smith Land Company would have to
acquire authorization from the U.S. Anny Corps of
Engineers to impact wetlands on their property.
The property in question is located east of
Brunsdorph Drive in the City of Fairlawn, Summit
County, Ohio.
By correspondence dated November 4, 1999 it
was determined that 5.554 acres of jurisdictional
wetland was present within the 10 acre Brunsdorph
Drive project area. By letter dated April 14, 2000
Smith Land Company was authorized to place fill or
dredged material into 0.945 acre of jurisdictional
wetland to facilitate the construction of nine
residential building lots. A total of 4.61 acres of
jurisdictional wetland was recorded on the plat map
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as, "jurisdictional waters of the United States under
the Federal Clean Water Act and in order to fill any
of the delineated wetlands, not shown on this plat as
to be filled, a permit must be obtained from the U.S.
Army Corps of Engineers".
The Corps of Engineers authority to regulate
waters of the United States is based on the
definitions and limits of jurisdiction contained in 33
CFR 328. Navigable waters, their tributaries and
adjacent wetlands are waters of the United States
subject to the provisions of Section 404 of the Clean
Water Act. The wetland limits were determined
based on the presence of wetland hydrologic
conditions, hydric soils and hydrophytic plant
communities as described in the delineation report
dated April 6, 1999.
During a recent site investigation conducted
on January 12, 2004 by a member of my staff, it was
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determined that this wetland system is surrounded
by upland and does not present a significant nexus
to a water of the United States.
Base on the absence of a hydrological
connection or adjacency to a water of the United
States, the remaining 4.61 acres of wetland is
determined to be an isolated water of the United
States. Isolated waters are only regulated under
Section 404 of the Clean Water Act when the use,
degradation or destruction of which could affect
interstate or foreign commerce.
A Department of the Army permit is not
required for impacts to this isolated wetland.
However, you should contact the Ohio
Environmental Protection Agency, Division of
Surface Water at 614-644-2001, to determine state
permit requirements for isolated wetlands.
If you have any questions concerning the
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above, please contact Ms. Lee A. Pittman at 304-3995210.
Rebecca A. Rutherford
Chief, North Regulatory Section
Copy Furnished:
Mr. Randy Bournique
Ohio Environmental Protection Agency Division of
Surface Water
P.O. Box 1049 Columbus, Ohio 43215
Mr. Scott Haley
867 Moe Dr. Suite G Akron, Ohio 44310
Mr. Tom
Skidmore 1
Cascade Plaza
Akron, Ohio 44308
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.