[Cite as Scott v. Universal Utils., Inc., 2017-Ohio-4341.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

WOOD COUNTY 

Gloria Scott, et al. Court of Appeals No. WD-16-064 

 Appellant Trial Court No. 2015CV0440 

 

v. 

 

Universal Utilities, et al. DECISION AND JUDGMENT

Appellees Decided: June 16, 2017 

* * * * * 

 Michael D. Portnoy, for appellant. 

 John A. Borell, Jr., for appellees. 

* * * * * 

 

PIETRYKOWSKI, J. 

{¶ 1} This matter is before the court on appeal of the November 4, 2016 judgment 

of the Wood County Court of Common Pleas which granted summary judgment in favor 

of appellees, Universal Utilities, Inc., Friendly Village Limited Partnership, Meadows of 
2. 

Perrysburg, LLC, and Choice Properties, Inc., in appellant Jill Smith’s1

 action for 

damages and request for class certification relating to appellees’ water and sewer billing 

practices. Because we agree that no issues of fact remain, we affirm. 

{¶ 2} Appellant, Jill Smith, is a resident of appellee, Meadows of Perrysburg, 

LLC, a mobile home park in Perrysburg, Ohio. Appellee, Friendly Village Limited 

Partnership, is also a mobile home park in Perrysburg, Ohio. The parks are managed by 

appellee, Choice Properties, Inc. Appellee, Universal Utilities, is the water and sewer 

billing company for the mobile home parks. The residents of the parks are supplied water 

and sewer services through the Northwestern Water and Sewer District (“the District”) 

which provides water for several townships in Wood County, Ohio. 

{¶ 3} Each mobile home park has a main water meter that measures the amount of 

water provided by the District. Each mobile home lot has its own meter to measure water 

usage by the individual residents. The parks, through Choice Properties, pay the water 

and sewer amounts billed by the district. In turn, Choice Properties, through Universal, 

bills the individual residents. 

{¶ 4} This action commenced on August 18, 2015, with plaintiff-appellant Jill 

Smith and then-plaintiffs Gloria Scott and Jamie Clark’s filing of a complaint and request 

for class certification against appellees. The complaint stated that the matter was being 

brought by plaintiffs as representatives for not less than 250 class members, residents of 

 

1

 Although the trial court action and the appeal were filed on behalf of “appellants,” 

appellant Smith is the only remaining named appellant and will be referred to singularly.
3. 

appellees’ mobile home parks, who were overcharged for water and sewer services. The 

complaint alleged breach of the lease agreements by violating state and federal law and 

failing to bill residents for actual water usage, a violation of the Ohio civil RICO statute, 

R.C. 2923.32(A)(1), and a violation of the Ohio Consumer Sales Practices Act, R.C. 

1345.02 and 1345.03. 

{¶ 5} Plaintiff Gloria Scott withdrew from the action on January 26, 2016; 

plaintiff Jamie Clark was dismissed by agreement of the parties on June 2, 2016. The 

case then proceeded with appellant as the sole plaintiff and purported class 

representative. 

{¶ 6} On May 2, 2016, appellant filed a Civ.R. 23 motion to certify a class 

consisting of “residents of both Friendly Village mobile home parks and the Meadows of 

Perrysburg since 2013 who paid a water or sewer bill administered by Choice Properties 

and Universal Utilities.” Appellant further indicated that she believed that the class 

would exceed 200. Appellant asserted that the only question of all the potential class 

members was: “Did Choice Properties and Universal Utilities charge the members more 

for water and sewer services than the law permits?” Finally, appellant argued that even 

though the individual residents may have varying determinations as to overpaid amounts, 

the method of determining said amounts would involve a review of standardized billing 

practices. 

{¶ 7} On July 8, 2016, appellees filed a motion for summary judgment and a joint 

memorandum in support of summary judgment and opposing class certification. 
4. 

Appellees, relying on the affidavits of Joni Edgington, bookkeeper for Universal, and 

Cindy Wilcox, district manager for Choice Properties, argued that despite appellant’s 

claims that she is overpaying for water, Choice Properties does not add a sur-charge to 

the rates it is charged by the District. Conversely, the affidavits alleged that Choice 

Properties suffered a sizeable monetary loss while attempting to recoup its outlay for the 

services during the relevant time period. Further, as to billing practices, the affidavits 

indicated that customers are charged per 100 cubic feet of use. In other words, as is 

industry standard, customers are charged in 100 cubic feet increments only after they use 

the entire 100 cubic feet. 

{¶ 8} Appellees generally argued that appellant lacked factual support as to each 

of her claims. Pointing to appellant’s deposition, appellees confirmed that appellant had 

asserted the following four reasons she believed she was being overcharged for water and 

sewer: (1) she was paying more for water than her brother who also lives in Perrysburg, 

Ohio; (2) her water bill fluctuates; (3) in January 2015 her pipes burst, she had a $6 water 

bill for two months then it increased to $120-$150; and (4) variations in water bills 

among neighbors. Appellees further asserted that appellant admitted to having no facts to 

support any of her claims and that she was just “guessing.” 

{¶ 9} Appellees further disputed the claims of overcharges by the way of 

administrative, management, and/or miscellaneous fees by providing copious billing 

statements and spreadsheets detailing when and why any additional charges were billed. 

Finally, as to work orders for repair of broken meters and the claim that such repairs 
5. 

evidenced that the meters were inaccurate, appellees contended that the issues were with 

the transmitters, not the meters. In other words, the meters were still recording accurate 

water usage, but that usage was not being communicated back to Universal. 

{¶ 10} In response, appellant argued that affiant Joni Edgington “brazenly 

committed perjury” by stating that the water meters were accurately calculating actual 

water use. Appellant proceeded to argue that appellees failed to “provide a scintilla of 

evidence Plaintiff Smith’s water meters were accurately calculating actual water use 

during the time period in question.” Appellant further claimed that “[b]ecause 

Defendants failed to prove the Smiths’ water meters accurately calculated actual water 

use let alone less than their actual water use, Defendants have no undisputed proof the 

Smiths or any resident were billed for actual water use, as required by the lease 

agreements.” 

{¶ 11} In support of her arguments, appellant attached the affidavit of Michael 

Plunkett, an engineering consultant and mechanical engineer. Plunkett stated that he was 

asked to provide an expert opinion of the “working efficiency” of appellant’s Sensus 

SRII water meter that had been installed at her residence since 2013. He also reviewed 

work orders, bills, affidavits, discovery responses, and depositions relating to the case. 

{¶ 12} Mr. Plunkett observed the testing of appellant’s water meter and stated that 

it “did measure accurately within specifications.” Plunkett asserted, however, that the 

water bills were inaccurate because “[e]very single bill indicates the actual water usage 

ended in the 100th cubic foot” and that the bills widely fluctuated. Plunkett further noted 
6. 

that he reviewed approximately 300 work orders which represented broken or clogged 

meters or broken transmitters. Finally, Mr. Plunkett contended that approximately 63 

residents were illegally charged for water use when their meters were broken. 

{¶ 13} In response, appellees argued that critical to appellant’s case, her 

opposition failed to demonstrate that she was overcharged for water. Expert Plunkett’s 

affidavit did demonstrate that appellant’s meter was working properly and that, if 

anything, residents were undercharged for water usage. 

{¶ 14} The trial court agreed with appellees’ arguments in granting their motion 

for summary judgment. Specifically, as to class certification the court concluded that 

although appellant asserted that 63 residents were overcharged for water based upon 

work orders and bills, her name and address was not included in the list. Appellant 

further alleged that residents were improperly charged various “administrative” or 

“management” fees which she failed to allege in her complaint. The court further noted 

that appellant’s water and sewer bills failed to show that she was ever charged such a fee. 

The court then concluded that appellant failed to demonstrate that she was an appropriate 

class representative. 

{¶ 15} Turning to the merits of appellant’s claims, the court concluded that no 

issues of fact remained based upon appellant’s admission that she had no facts to support 

her claims, the clear establishment of Universal Utilities’ billing practices which refute 

appellant’s assertions, and appellant’s expert’s failure to demonstrate and appellant was 
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overcharged for water or sewer or that her meter was inaccurate. This appeal followed 

with appellant raising three assignments of error for our review: 

 1. The grant of summary judgment was in error because Plaintiffs 

have clearly met the burden of establishing their claim that the lease 

agreements were breached by Defendants not charging them for actual 

water usage. 

 2. The grant of summary judgment was in error because Mr. 

Plunkett’s Affidavit created genuine issues of material fact regarding 

whether Plaintiffs were accurately charged for water usage. 

 3. Plaintiff’s Motion to Certify Class was improperly denied 

because all members of the class suffered the same damages from being 

overcharged for water usage due to Defendants’ breach of contract and 

Ohio civil RICO violations. 

{¶ 16} Appellant’s first and second assignments of error dispute the trial 

court’s summary judgment award and will be jointly addressed. We initially note 

that appellate review of a trial court’s grant of summary judgment is de novo. 

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996 Ohio 336, 671 N.E.2d 

241 (1996). Accordingly, we review the trial court’s grant of summary judgment 

independently and without deference to the trial court’s determination. Brown v. 

County Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). 

Summary judgment will be granted only when there remains no genuine issue of 
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material fact and, when construing the evidence most strongly in favor of the 

nonmoving party, reasonable minds can only conclude that the moving party is 

entitled to judgment as a matter of law. Harless v. Willis Day Warehousing Co., 

54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978); Civ.R. 56(C). The burden of showing 

that no genuine issue of material fact exists falls upon the party who moves for 

summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264 

(1996). However, once the movant supports his or her motion with appropriate 

evidentiary materials, the nonmoving party “may not rest upon the mere 

allegations or denials of his pleadings, but his response, by affidavit or as 

otherwise provided in this rule, must set forth specific facts showing that there is a 

genuine issue for trial.” Civ.R. 56(E). 

{¶ 17} Appellant first argues that an issue of fact remains as to whether appellant 

was charged for her actual water usage as required by the lease agreement. Specifically, 

appellant argues she disputes “the accuracy of each and every bill and the Defendants’ 

entire billing system.” Appellant also references, as “proof of defendants’ scheme to 

overcharge for water usage,” Universal’s alleged fraudulent billing practices in Missouri. 

{¶ 18} Appellant also contends that the affidavit of her expert, Michael Plunkett, 

created a genuine issue of fact precluding summary judgment. Appellant contends that 

his affidavit demonstrates that the bills sent to appellant were false based on the fact that 

she was charged to the 100th cubic foot each month; thus, she and the other residents 

were not charged for “actual water use.” Appellant further argued that Plunkett’s 
9. 

affidavit showed that there were 300 work orders for broken meters or transmitters and 

that appellees failed to prove that the meters were ever checked for accuracy. 

{¶ 19} Independently reviewing the arguments of the parties, we must agree with 

the trial court that appellant has failed to set forth any material issues of fact for trial. 

Appellant, in several instances, argues that appellees failed to prove that the meters were 

working accurately or that the bills were accurate. Appellant, as the plaintiff, has the 

ultimate burden of proof in this case. Further, in order to survive a summary judgment 

motion, appellant as the nonmoving party was required to demonstrate a triable issue of 

fact; she did not. Appellant admitted that she had no facts to base her arguments on. 

Further, the billing system, by the 100 cubic foot, is the industry standard and is billed 

only after its use. Finally, Plunkett himself admitted that appellant’s meter was working 

properly. It is not appellees’ burden to prove that appellant was being charged for actual 

use; that was appellant’s burden. Appellant’s first and second assignments of error are 

not well-taken. 

{¶ 20} Appellant’s third assignment of error contends that the trial court erred by 

denying appellant’s motion to certify a class. Based on our disposition of appellant’s first 

two assignments of error, we find that appellant failed to demonstrate the classcertification requirements under Civ.R. 23. Appellant’s third assignment of error is not 

well-taken. 
10. 

{¶ 21} On consideration whereof, we find that substantial justice was done the 

party complaining and the judgment of the Wood County Court of Common Pleas is 

affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal. 

 Judgment affirmed. 

 A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. ____________________________ 

 JUDGE 

Thomas J. Osowik, J. 

____________________________ 

James D. Jensen, P.J. JUDGE 

CONCUR. 

____________________________ 

JUDGE