[Cite as Hannibal Dev., L.L.C. v. Monroe Water Sys. , 2021-Ohio-2338.]



## IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MONROE COUNTY HANNIBAL DEVELOPMENT, LLC Plaintiff-Appellant,

v. MONROE WATER SYST EMS, et al., Defendants-Appellees.

OPINION AND JUDGMENT ENTRY Case No. 20 MO 0016

Civil Appeal from the Court of Common Pleas of Monroe County, Ohio Case No. 2018-224 BEFORE: Cher y l L. Waite, Gene Donofrio, David A. D’Apolito, Jud g es.

JUDGMENT: Reversed and Remanded.

A tty. Randolph L. Snow and Atty. James M. Wherley, Jr. , Black, McCuskey, Souers & A rbaugh, 220 Market Ave. S., Suite 1000, Canton, Ohio 44702, fo r Plaintiff-Appellan t Hannibal Development, LLC.– 2 –

Case No. 20 MO 0016 A tty. Thomas D. White , Atty. Matthew A. Kearney , and Atty. Katherine M.K. Kimble , White Law Office, Co., 5989 Coun ty Road 77, Millersburg, Ohio 44654, for DefendantA ppellee Monroe Water Systems
A tty. James L. Peters , Monroe County Prosecuting Attorney, 101 North Main St., Rm. 1 5, Woodsfield, Ohio 43793, for Defendants-Appellees Monroe County Treasurer and Monroe Count y Audito r

. Dated: June 28, 2021

WAITE, J. {¶1} Appellant Hannibal Development, LLC (“Hannibal”) appeals an Aug ust 31, 2020 Monroe County Court of Common Pleas decision to grant summ ary judgment in favor of Appellee Monroe Water Systems (“Monroe Water”). Hanni bal argues that the trial court erroneously denied its motion for partial summary j udgment where the uncontested facts demonstrate that Monroe Water violated its ow n rules and regulations governing the contract between the parties. Hannibal also argu es that R.C. 6119.06(D) permits a party to file a contract or tort claim against a wate r district in the trial court and that party is not required to exhaust administrative remedies f or such claims. For the reasons provided, Hannibal’s argument regarding R.C. 6119.06(D) has merit. The denial of Hannibal’s motion for summary judgment does not constitute a final appealable order, but summary judgment was not wa rranted, regardless. Accordingl y, the judgment of the trial court is reversed and remanded for a trial. Factual and Procedural History {¶2} This is the second time this matter has been before us. See Hannibal Dev., LLC v. Monroe Water Systems , 7th Dist. Monroe No. 18 MO 0023, 2019-Ohio-3697. (“ Hannibal I”). In Hannibal I, we reviewed whether the trial court properly dismissed the– 3 –

Case No. 20 MO 0016 matter after Monroe Water filed a Civ.R. 12(B)(6) motion to dis miss the complaint. The facts of that case are as follows:

In July of 2014, Hannibal purchased the former Ormet manufactur ing facility (“Ormet”) which is located in Monroe County. Ormet was not in use at the time of the purchase nor at any time during Hannibal’s ownershi p. At the time of purchase, Hannibal informed Monroe Water that it had pu rchased Ormet and that any bills should be sent to Hannibal. Apparentl y, Monroe Water suggested that Hannibal pay $5,000 per month until a usag e history could be determined.

Monroe Water did not send Hannibal a bill until nearly a year l ater, and Hannibal did not make any payments during that time. This bill sent on May 29, 2015 by Monroe Water was in the amount of $87,302.24. This bill stated that late fees of $8,730.22 would be added if payment was not t imely received. The late fee would raise the total amount to $96,032 .46. According to Hannibal, Monroe Water failed to return phone call s regarding this bill. At some point, Hannibal was informed that the amoun t was due in full and that partial payments would not be accepted. Sometime thereafter, Hannibal discovered and repaired an underground leak that was a pparently responsible for the high usage.

Initially, Hannibal did not pay the bill and disputed the amoun t. Monroe Water transferred the balance to the county auditor, who transf erred it to the county treasurer. The treasurer placed a lien on the Ormet property in– 4 –

Case No. 20 MO 0016 the amount of $228,436.60. It is unclear which portion of this amount derived from usage and which is the result of late fees. Hanni bal paid the amount in full to satisfy the lien, but continued to dispute th e amount owed. Hannibal subsequently sold the Ormet property after the lien wa s removed.
On June 13, 2018, Hannibal filed a complaint against Monroe Wat er, Monroe County Auditor, Monroe County Treasurer, and John Does 1 -5. The first count of the complaint raised a claim to recover fund s paid. This claim is based on an argument that Monroe Water failed to deter mine the actual amount of usage through reading the meter and failed to provide a quarterly bill to Hannibal, in violation of R.C. 743.04. The c omplaint also raises alternate theories of breach of implied contract to moni tor usage and issue bills in the event that T itle 7 of the Revised Code does not apply. The second count of the complaint raises unjust enrichment. The th ird count requests declaratory judgment to establish that Hannibal did no t owe the amount paid. This claim, presumably focusing on the late fees, requests that these fees be returned to Hannibal.

On August 8, 2018, Monroe Water filed a Civ.R. 12(B)(6) motion to dismiss the complaint in its entirety. Monroe Water argued that Hannib al’s first count is based on Chapter 7 of the Ohio Revised Code, which doe s not apply to an independent political subdivision. Because they co ntended the second and third counts were predicated on the first, Monroe Wa ter argued that they must also be dismissed.– 5 –

Case No. 20 MO 0016 On September 27, 2018, the trial court granted Monroe Water’s m otion. The trial court reasoned that Chapter 7 of the Ohio Revised Cod e does not apply to a political subdivision pursuant to Chapter 6119. The court decided that Hannibal’s second and third counts could not succeed witho ut establishing the Chapter 7 claim. The court did not specifical ly address Hannibal’s implied contract claim. It is from this judgment en try that Hannibal timely appeals.

Hannibal I , at ¶ 2-7 {¶3} We held that the trial court improperly dismissed Hannibal’s co ntract claims, as those claims could not be resolved by reviewing the complain t, alone. Id. at ¶ 20. On remand, the trial court initially issued a judgment entry indic ating that the first count of the complaint remained dismissed. Hannibal filed an uncontested mo tion to correct the entry which the trial court granted. As such, the following claims w ere before the trial court: (1) breach of implied contract to monitor usage and issue bills (2) unjust enrichment, and (3) declaratory judgment to establish that Hannibal did not owe the amount paid. {¶4} On November 18, 2019, Hannibal filed a partial motion for defau lt judgment. Hannibal argued that fifty-five days had passed since the trial court’s judgment entry and Monroe Water had failed to file an answer to the complaint. Mo nroe Water responded and informed the court that it had admittedly held the mistaken belief that it was not required to answer the complaint while the appeal was pending, and asserted that lead counsel had been traveling and then became ill once the appella te process had ended. Monroe Water filed a motion for leave to file an answer instant er. The trial court granted Monroe Water’s motion and allowed it to file an answer.– 6 –

Case No. 20 MO 0016 {¶5} Shortly thereafter, the Monroe County Auditor filed a motion fo r summary judgment, arguing that it was not a party to the contract and n o longer had possession of the money in question because it had immediately transferred to Monroe Water. As such, the auditor asserted that it was merely a “middle man” to the t ransaction. The trial court granted the auditor’s motion. Hannibal does not contest that d ecision, here. Thus, the auditor is not a party to this appeal. {¶6} On April 30, 2020, the parties filed competing motions for summ ary judgment. In its judgment entry, the trial court denied Hannib al’s partial motion for summary judgment, finding that genuine issues of material fact existed as to the agreement between the parties. In the same judgment entry, the court granted Monroe Water’s motion for summary judgment based on its determination that Hannibal failed to exhaust its administrative rem edies. It is from this entry tha t Hannibal timely appeals. {¶7} For ease of understanding, Hannibal’s two assignments of error will be addressed out of order. Summary Judgment {¶8} An appellate court conducts a de novo review of a trial court's decision to grant summary judgment, using the same standards as the trial c ourt set forth in Civ.R. 56(C). Grafton v. Ohio Edison Co ., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). {¶9} Before summary judgment can be granted, the trial court must de termine that: (1) no genuine issue as to any material fact remains to b e litigated, (2) the moving party is entitled to judgment as a matter of law, (3) it appear s from the evidence that reasonable minds can come to but one conclusion, and viewing th e evidence most favorably in favor of the party against whom the motion for sum mary judgment is made,– 7 –

Case No. 20 MO 0016 the conclusion is adverse to that party. Temple v. Wean United, Inc ., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). Whether a fact is “material” depen ds on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc ., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995). {¶10} “[T]he moving party bears the i nitial responsibility of informi ng the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim.” (Emphasis deleted.) Dresher v. Burt , 75 Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving party has a reciprocal burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at 293, 662 N.E.2d 264. In other words, when presented with a pro perly supported motion for summary judgment, the nonmoving party must produce some evi dence to suggest that a reasonable factfinder could rule in that party's favor. Brewer v. Cleveland Bd. of Edn ., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997). {¶11} The evidentiary materials to support a motion for summary judgm ent are listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and wr itten stipulations of fact that have been filed in the case. In resolving the motion, the cour t views the evidence in a light most favorable to the nonmoving party. Temple , 50 Ohio St.2d at 327, 364 N.E.2d 267. ASSIGNMENT OF ERROR NO. 2

Hannibal was not required to exhaust administrative procedures prior to bringing this lawsuit.– 8 –

Case No. 20 MO 0016 {¶12} Hannibal contends that it is not required to exhaust administra tive remedies prior to filing a contract action because R.C. 6119.06(D) expre ssly provides the right to file a contract or tort claim against a water district in commo n pleas court. That statute does not require the exhaustion of any administrative remedies. Even if we disagree, Hannibal argues that R.C. 6119.06(D) must be read in conjunctio n with R.C. 5715.19(A)(1)(d) in order to avoid conflict. In accordance wit h statutory construction, effect must be given to both statutes. Thus, Hannibal argues R .C. 6119.06(D) applies to claims rooted in contract or tort law whereas R.C. 5715.19(A)(1 )(d) applies to issues involving the valuation and assessment of real property. In th e alternative, even if it was required to exhaust any administrative remedies, Hannibal argue s that such efforts would be futile given Monroe Water’s refusal to communicate. Hanniba l urges that it had only twenty-one days to pay a bill that rose to almost six figures, thus was limited in its options. {¶13} Hannibal also maintains that there were no administrative remed ies available to pursue. Monroe Water admitted in an interrogatory that no formal administrative process exists in the event of a dispute. While Monroe Water’s rules and regulations state that a customer “may” file a complaint, Hanni bal argues that the word “may” suggests that such filing is not mandatory. Hannibal not es that Monroe Water’s rules and regulations do not actually provide an appeal process , as the proceedings are not quasi-judicial in nature and do not provide basic protectio ns such as notice and the opportunity to be heard. Hannibal also asserts that it was not required to specifically pay the amount owed “under protest.” {¶14} Monroe Water responds that Hannibal had three administrative re medies available: (1) filing a Rule V complaint, (2) filing a complai nt with the Board of Revision– 9 –

Case No. 20 MO 0016 against the Auditor pursuant to R.C. 5715.19, and (3) filing an appeal after filing a complaint with the Ohio Board of Tax Appeals pursuant to R.C. 5 717.01, R.C. 5717.03, R.C. 5717.04, and R.C. 5717.05. Monroe Water claims that this matter involves a tax assessment issue rather than a traditional water bill dispute, thus the Board of Revision and Tax Appeals Board would have jurisdiction. Even if R.C. 61 19.06(D) provides a remedy, Monroe Water argues that Hannibal was still required to exhaust available administrative remedies before resorting to the courts. {¶15} R.C. 6119.06(D) provides that a water district may:

Sue and plead in its own name; be sued and impleaded in its own name with respect to its contracts or torts of its members, employee s, or agents acting within the scope of their employment, or to enforce its obligations and covenants made under sections 6119.09, 6119.12, and 6119.14 of the Revised Code. Any such actions against the district shall be b rought in the court of common pleas of the county in which the principal offi ce of the district is located, or in the court of common pleas of the cou nty in which the cause of action arose, and all summonses, exceptions, and notic es of every kind shall be served on the district by leaving a copy thereof at the principal office with the person in charge thereof or with the secretary of the district.

{¶16} The language of R.C. 6119.06(D) provides that a water district such as Monroe Water can be sued for contract or tort claims in common pleas court. Despite Monroe Water’s argument, there is no express requirement within the statute requiring the exhaustion of any administrative remedies prior to filing s uch a complaint. R.C.– 10 –

Case No. 20 MO 0016 6119.06(D) has not been the subject of many appellate decisions , and those that exist and cite to this statute contain facts and issues not present, here. Thus, we have little outside guidance as to the application of this statute. {¶17} We have previously recognized that a water district may be sued in its name with respect to contract claims. The City of East Liverpool v. Buckeye Water District, 2012-Ohio-2821, 972 N.E.2d 1090 (7th Dist.), ¶ 48, citing R.C. 6119.06(D). Mauldin v. Youngstown Water Dept., 2019-Ohio-5065, 150 N.E.3d 433 (7th Dist.). Notably, in Buckeye, the plaintiff does not appear to have utilized any administrati ve remedies prior to filing a complaint in the common pleas court. However, we n ote that the specific issue in both Buckeye and Mauldin involves an immunity analysis, thus these cases are not directly on point. See Buckeye, supra; Mauldin v. Youngstown Water, Dept., 7th Dist. No. 19 MA 0010, 2019-Ohio-5065, 150 N.E.3d 433. {¶18} Based on our review of this matter, however, it is readily appa rent that none of the “remedies” listed by the trial court are applicable, her e. First, the trial court referred to the filing of a Rule V complaint. The trial court is making reference to a section found in Monroe Water’s rules and regulations. According to Rule V, “[b]ills which the user believes to be incorrect may be paid under protest and appealed to the next meeting of the Trustees of the District. The Trustees shall hear the Comp laint and take such action as may be necessary.” (Exh. 6.) {¶19} We begin by again noting that there is no language in R.C. 6119 .06(D) allowing a water district to add a prerequisite, such as an adm inistrative remedy, prior to filing a complaint in the trial court. Regardless, as Monroe W ater conceded at oral argument, the “remedy” mentioned in Rule V does not provide any essential aspect of– 11 –

Case No. 20 MO 0016 due process, as it does not afford proper notice, an opportunit y to be “heard” in a legal sense, or an explicit process to further appeal. Instead, Rule V appears to be a discretionary process that a customer may choose to exercise in the event of a dispute in the hope that the district’s trustees may agree with the user. If they do not, no further process is anticipated or provided. {¶20} As to the trial court’s determination that Hannibal was, altern atively, required to file a complaint with the Board of Revision and sub sequently file an appeal with the BTA, neither of those entities have jurisdiction over this matter. The Board of Revision is “a statutorily created board tasked with hearing ‘c omplaints relating to the valuation or assessment of real property as the same appears up on the tax duplicate of the then current year.’ ’’ Hess Ohio Dev., LLC, v. Belmont County Board of Revision, 7th Dist. Belmont Nos. 19 BE 0029, 19 BE 0030, 19 BE 0031, 2020-Ohi o-4729, ¶ 18, citing R.C. 5715.11. “County boards of revision are creatures of stat ute and, as a consequence, are limited to the powers conferred upon them by statute.” Id. at ¶ 34, citing Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 87 Ohio St.3d 363, 368, 721 N.E.2d 40 (2000). “The authority granted to a board of revisio n by R.C. 5715.01 is to ‘hear complaints and revise assessments of real property for ta xation.’ ’’ Id. {¶21} In Hess, we held that a dispute over the ownership rights in real proper ty was not within the jurisdiction of the Board of Revision, as th e dispute did not challenge the auditor’s calculation of the value or tax assessment of the property. Id. at ¶ 45. The proper procedure in such a case was to file a quiet title actio n. Id. {¶22} Monroe Water argues that because the amount of the disputed wat er bill was placed as a lien on the property in the instant case, someh ow this lien creates– 12 –

Case No. 20 MO 0016 jurisdiction in the Board of Revision. There is no legal or fa ctual support for this theory. While the lien was certainly being assessed, the current disput e does not involve any question of the property’s value for tax assessment purposes. Regardless, Hannibal satisfied the lien prior to filing the complaint in this case. The proceeds were transferred immediately from the auditor, who operated simply as a “middle man” in this matter to pass through the funds to Monroe Water. This matter does not, then, involve the “valuation or assessment of real property.” {¶23} Monroe Water heavily relies on Hamilton v. Mansfield Motorsports Speedway, L.L.C. , 5th Dist. Richland No. 11 CA 103, 2012-Ohio-2446. However, Hamilton is readily distinguishable, as that case involved a tax assessm ent made by the tax commissioner which did place the issue within the purview o f the Board of Revision. Id. at ¶ 38. Here, the issue involves neither a tax nor an action taken by the tax commissioner. Instead, it involves an overdue water bill that has been satisfied. Thus, Hamilton provides no guidance on the issue at bar. {¶24} In summation, R.C. 6119.06(D) applies to this contract claim as serted against a water district. R.C. 6119.06(D) does not provide tha t a party must look for, and exhaust, any administrative remedy. The statute does not provi de a water district with the ability to create an obstacle that must be utilized before a complaint can be filed. Assuming arguendo that it did, Monroe Water admitted it provide s no other appropriate administrative procedure for appeal of a water bill. There are no other appropriate administrative remedies available to Hannibal in this matter, e ither. Accordingly, Hannibal’s second assignment of error has merit and is sustaine d. ASSIGNMENT OF ERROR NO. 1– 13 –

Case No. 20 MO 0016 Partial summary judgment should have been granted in favor of H annibal because Monroe Water violated its own rules and regulations by failing to issue invoices monthly to Hannibal

{¶25} Hannibal contends that Monroe Water’s own rules and regulations require it to send monthly bills no later than the fifteenth day of the month and additionally requires the bill to be paid within ten days or the service will be disc onnected. Hannibal asserts that it purchased and took possession of the facility in July o f 2014, so the first bill should have been received in August of 2014. However, it did not rece ive a bill until May 29, 2015, nearly a year later. Hannibal asserts that all of Monroe Water’s other customers, including the previous owner of the facility, received monthly bills. Consequently, Hannibal asserts that the record establishes that Monroe Water breached the contract between the parties and so, summary judgment in favor of Hannib al was appropriate. {¶26} In response, Monroe Water argues that there are at least three issues of material fact: (1) whether the parties reached an agreement as to the minimum payment, (2) whether Monroe Water breached the contract, and (3) whether Paul Liu was acting as an agent for Hannibal when he allegedly agreed to pay $5,000 pe r month until a rate could be established. {¶27} “An order denying a motion for summary judgment is generally no t a final appealable order.” Davis v. Brown Local School District, 2019-Ohio-246, 131 N.E.3d 431 (7th Dist). An appellate court may only address the denial if a statutory exemption exists or if the matter turns on undisp uted facts and purely legal que stions. Crum v. Yoder , 7th Dist. Monroe No. 20 MO 0005, 2020-Ohio-5046, ¶ 34; Seoane-Vazquez v. Rosenberg , 10th Dist. Franklin No. 19AP-16, 2019-Ohio-4997, ¶ 20.– 14 –

Case No. 20 MO 0016 {¶28} Here, as the trial court stated in its entry, genuine material facts are clearly contested. First, Monroe Water claims that the parties reached an agreement where Hannibal agreed to pay $5,000 per month until a water rate coul d be established based on usage. Hannibal disputes that it entered into such an agree ment. As the record demonstrates that Monroe Water apparently actually charged Hann ibal $15,000 per month and not $5,000, it is apparent that there are genuine iss ues as to the existence of any agreement. {¶29} Also at issue is the effect such an agreement would have on Mon roe Water’s rules and regulations. James Murray of Monroe Water co nceded in his deposition that the parties did not discuss whether a monthly b ill would be invoiced when they entered into this “agreement.” (1/17/20 Murray Depo., p. 40.) He conceded that “customers pay the same rate unless otherwise changed by the Bo ard.” (1/17/20 Murry Depo., p. 31.) Murray also conceded that Hannibal was not invo iced or sent a shut-off notice, despite the fact that Monroe Water knew Hannibal had no t been paying $5,000 per month. (1/17/20 Murry Depo., p. 104.) He admitted that he was unaware of another situation where a customer did not receive a bill. (1/17/20 Mu rry Depo., p. 109.) However, it is unclear whether the water department’s rules and regulations constitute a contract or whether Monroe’s above described actions amount to a breach of contract. Still at issue is whether Monroe Water and Hannibal reached an agreement to modify the rules and regulations. If so, it remains to be determined if s uch modification is permitted by the rules and regulations. {¶30} Many facts remain in dispute in this case. And while denial of a motion for summary judgment is not final and appealable, because genuine i ssues of material fact– 15 –

Case No. 20 MO 0016 remain and those issues cannot be resolved solely as a matter o f the application of law, the trial court was correct in deciding to deny partial summary judgment, here. As such, Hannibal’s first assignment of error is without merit and is ov erruled. Conclusion {¶31} Hannibal argues that Monroe Water violated its own rules and re gulations which govern the contract between the parties. Hannibal conten ds that R.C. 6119.06(D) permits a party to file a contract or tort claim against a wate r district in the trial court, and that it is not required to first exhaust any administrative rem edies. For the reasons provided, Hannibal’s argument regarding R.C. 6119.06(D) has mer it and the trial court’s decision to grant Monroe Water summary judgment was error. How ever, Hannibal’s argument regarding the trial court’s denial of its motion for s ummary judgment has no merit. While denial of summary judgment is not a final, appeal able order, the trial court was correct in denying summary judgment to Hannibal. According ly, the trial court is reversed and the matter is remanded for a trial.

Donofrio, P.J., concurs. D’Apolito, J., concurs.[Cite as Hannibal Dev., L.L.C. v. Monroe Water Sys. , 2021-Ohio-2338.]

For the reasons stated in the Opinion rendered herein, Appellan t’s first assignment of error is overruled and its second assignment is sustained. It is the final judgment and order of this Court that the judgment of the Court of Common Pl eas of Monroe County, Ohio, is reversed. We hereby remand this matter to the trial c ourt for further proceedings according to law and consistent with this Court’s Opinion. Cos ts to be taxed against the A ppellee. A certified copy of this opinion and judgment entry shall const itute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedu re. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.

JUDGE CHERYL L. WAITE

JUDGE GENE DONOFRIO

JUDGE DAVID A. D’APOLITO

NOTICE TO COUNSEL This document constitutes a final judgment entry.