[Cite as Vanderlaan v. Pavlik, 2015-Ohio-5349.]

Civil Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: December 23, 2015 

Dinsmore & Shohl LPA and Mark A. Vander Laan, for Plaintiffs-Appellees, 

Keating Muething & Klekamp PLL and Charles M. Miller, for DefendantsAppellants. 

Please note: this case has been removed from the accelerated calendar. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

AARON A. VANDERLAAN, 

 and 

ALLISON S. VANDERLAAN, 

 Plaintiffs-Appellees, 

 vs. 

DAVID PAVLIK, 

 and 

SUSAN PAVLIK, 

 Defendants-Appellants. 

: 

: 

: 

: 

: 

: 

: 

: 

: 

APPEAL NO. C-150060 

TRIAL NO. A-1307814 

O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

 2

MOCK, Judge. 

{¶1} In four assignments of error, defendants-appellants David and Susan 

Pavlik appeal the judgment of the trial court in favor of plaintiffs-appellees Aaron 

and Allison Vanderlaan for breach of contract and fraud. For the reasons set forth 

below, we reverse. 

Real Estate Sale Leads to Litigation 

{¶2} In 1981, the Pavliks entered into an agreement with Donald and 

Susan Ayer. The Ayers, who owned the property adjacent to the Pavliks’ property, 

granted the Pavliks an easement through the Ayers’ property for the purpose of 

constructing a sewer line. The easement contained a provision that stated that “[t]he 

cost of constructing, maintaining, repairing or operating the sewer line within the 

easement shall be the sole obligation of the [Pavliks].” Twenty-six years later, the 

Pavliks sold their home to the Vanderlaans. The “Contract to Purchase” indicated, 

among other things, that the property was “not subject to a maintenance agreement.” 

At the closing, the “Transfer Certificate of Title” properly described the property and 

listed, as part of the transaction, a “non-exclusive, permanent sewer easement and 

right of way as more particularly described in deed book 4203, page 217 of the 

registered land records of Hamilton County, Ohio.” 

{¶3} In 2013, an attorney for the Ayers made a written demand that the 

Vanderlaans repair damage caused by the sewer line. The Vanderlaans paid for the 

repair and then brought suit against the Pavliks for breach of contract and fraud. 

They claimed that the easement constituted a maintenance agreement that should 

have been disclosed, and that such a maintenance agreement was expressly denied in 
OHIO FIRST DISTRICT COURT OF APPEALS

 3 

the “Contract to Purchase.” At the conclusion of the bench trial, the trial court 

awarded damages to the Vanderlaans. 

Trial Court Should Have Dismissed Claims 

Pursuant to Civ.R. 41(B)(2) 

{¶4} In their first assignment of error, the Pavliks claim that the trial court 

should have granted their motion to dismiss filed pursuant to Civ.R. 12(B)(6). “A 

motion to dismiss for failure to state a claim upon which relief can be granted is 

procedural and tests the sufficiency of the complaint.” State ex rel. Hanson v. 

Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). But 

courts are limited to examining the face of the complaint, may not consider matters 

outside the complaint, and must presume all the assertions in the complaint are true. 

State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997). 

{¶5} The Pavliks’ argument for dismissal requires reference to more than 

the allegations in the complaint. We must also consider the “Contract to Purchase,” 

the sewer easement, the “Transfer Certificate of Title,” and the testimony of the 

parties regarding receipt of those documents. Since the Pavliks’ arguments relied on 

information outside the face of the complaint, their initial motion to dismiss was not 

the proper vehicle by which to resolve the matter. The trial court properly denied it. 

The first assignment of error is overruled. 

{¶6} In their second assignment of error, the Pavliks claim that the trial 

court should have granted their Civ.R. 41(B) motion to dismiss. Pursuant to Civ.R. 

41(B)(2), a defendant in a bench trial may move for dismissal at the close of the 

presentation of the plaintiff's evidence on the grounds that the plaintiff has failed to 

prove its case and has not demonstrated that it is entitled to relief. When ruling on a 

Civ.R. 41(B)(2) motion to dismiss, a trial court is entitled to weigh the evidence 
OHIO FIRST DISTRICT COURT OF APPEALS

 4

presented. St. Clair v. Person, 1st Dist. Hamilton No. C-010094, 2002 Ohio App. 

LEXIS 1154 (March 15, 2002). The court is not required to view the evidence in the 

light most favorable to the plaintiff. Harris v. Cincinnati, 79 Ohio App.3d 163, 168, 

607 N.E.2d 15 (1st Dist.1992), citing Jacobs v. Bd. of Cty. Commrs., 27 Ohio App.2d 

63, 65, 272 N.E.2d 635 (3d Dist.1971). A reviewing court should set aside the trial 

court's judgment if it was erroneous as a matter of law or against the manifest weight 

of the evidence. Person. 

{¶7} In order to establish a breach-of-contract claim in a real-estate 

transaction, the Vanderlaans must establish “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 

nonbreaching party suffered damages as a result of the breach.” Garofalo v. Chicago 

Title Ins. Co., 104 Ohio App.3d 95, 108, 661 N.E.2d 218 (8th Dist.1995). 

{¶8} In this case, the Vanderlaans claim that the Pavliks breached their 

agreement when they asserted that the property was not subject to a maintenance 

agreement when it was. The 1981 sewer easement granted a “non-exclusive, 

permanent sewer easement and right-or-way” in favor of the Pavliks over the land 

owned by the Ayers. As part of that easement, the Pavliks were granted the “right of 

entry and re-entry for construction, maintenance, operation of the sewer line within 

this easement” and required the Pavliks to restore the surface area to its prior 

condition in the event that the Pavliks had to break the surface of the Ayers’ land in 

order to maintain the sewer line. We conclude that the sewer easement in this case 

does not rise to the level of a “maintenance agreement” as that term was used in the 

“Contract to Purchase.” 
OHIO FIRST DISTRICT COURT OF APPEALS

 5

{¶9} Generally, an easement is defined as an interest in the land of another 

which entitles the owner of the easement to a limited use of the land in which the 

interest exists. Dalliance Real Estate, Inc. v. Covert, 11th Dist. Geauga No. 2013-G3139, 2013-Ohio-4963, ¶ 32. Under the common law, unless the owner of the 

servient estate is bound to make repairs, the burden “devolves upon the owner of the 

dominant estate, of making whatever repairs are necessary for his use [of the 

easement].” Colace v. Wander, 5th Dist. Richland No. 2006 CA 0005, 2006-Ohio7094, ¶ 62, quoting National Exchange Bank v. Cunningham, 46 Ohio St. 575, 589, 

22 N.E.924 (1889). 

{¶10} Under the terms of the sewer easement, the Vanderlaans were not 

required to do anything more than maintain their own property, and had no 

additional duties other than those that would have been imposed under common 

law. Such an obligation is not like the type of maintenance agreements normally 

contemplated in real-estate transactions, namely the obligation to maintain an 

improved property for some mutual benefit. See, e.g., Johnson v. Keith, 12th Dist. 

Clermont No. CA2012-04-032, 2013-Ohio-451 (a maintenance agreement involving a 

driveway shared by multiple parties); Country Club S. Homeowners Assn. v. Warren 

Country Club Villas Condominium Unit Owners Assn., 11th Dist. Trumbull No. 

2012-T-0001, 2012-Ohio-5835 (a maintenance agreement involving an entrance 

roadway to a development). This is especially true considering that the “Contract to 

Purchase” lists “maintenance agreements” along with other such encumbrances as 

whether the property is “subject to a homeowner association charter” with 

mandatory membership, “subject to a homeowner association assessment,” or 

whether there are any “encroachments, shared driveways, [or] party walls.” 
OHIO FIRST DISTRICT COURT OF APPEALS

 6

{¶11} As the Pavliks noted, “[t]here is nothing in the Sewer Easement that 

requires Vander Laan [sic] to maintain anything he does not own.” We conclude that 

the sewer easement in this case does not rise to the level of a maintenance agreement 

as that term is used in the “Contract to Purchase.” Therefore, the trial court should 

have granted the Pavliks’ Civ.R. 41(B) motion to dismiss the breach-of-contract 

claim. 

{¶12} The second cause of action that the Vanderlaans asserted was that the 

Pavliks’ failure to disclose the “maintenance agreement” amounted to fraud. Before 

we address the merits of that assertion, we must first determine whether that claim 

has been timely asserted. 

{¶13} Pursuant to R.C. 2305.09(C), an action for relief on the ground of 

fraud “shall be brought within four years after the cause thereof accrued * * * .” The 

Ohio Supreme Court has interpreted this statute to mean that the four-yearlimitations period commences to run when the complainant has discovered, or 

should have discovered in the exercise of reasonable diligence, the alleged fraud. 

Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 546 N.E.2d 206 (1989), paragraph 

2b of the syllabus; see Cundall v. U.S. Bank, 122 Ohio St.3d 188, 2009-Ohio-2523, 

909 N.E.2d 1244, ¶ 24. In discussing the application of the discovery rule to fraud 

cases, the Supreme Court of Ohio has stated, “[c]onstructive knowledge of facts, 

rather than actual knowledge of their legal significance, is enough to start the statute 

of limitations running under the discovery rule.” Cundall at ¶ 30. 

{¶14} The “Transfer Certificate of Title” included a reference to the sewer 

easement. Aaron Vanderlaan testified that the reference was available in the 

paperwork he received as a result of the sale in 2007. It was at this point that the 

Vanderlaans were put on notice of the agreement. Their claim for fraud, filed in 
OHIO FIRST DISTRICT COURT OF APPEALS

 7

2013, was untimely and should have been dismissed by the trial court. The second 

assignment of error is sustained. 

Conclusion 

{¶15} We overrule the Pavliks’ first assignment of error, but sustain their 

second. The Pavliks’ third assignment of error claimed that the trial court’s decision 

was against the manifest weight of the evidence, and their fourth took issue with the 

damage award. Both are rendered moot by our resolution of the second assignment 

of error. We reverse the judgment of the trial court, and remand the cause to the 

trial court with instructions to enter judgment for the Pavliks. 

Judgment reversed and cause remanded. 

HENDON, P.J., and CUNNINGHAM, J., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.