Friend, et al. v. New Lexington Tree Farm, LLC, et al.

Filing 60

OPNION AND ORDER granting in part and denying in part 40 Motion for Judgment on the Pleadings. Signed by Magistrate Judge Kimberly A. Jolson on 12/7/2018. (ew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JEFFREY FRIEND, et al.,

Plaintiffs,
Case No. 2:18-cv-00198-KAJ
Magistrate Judge Kimberly A. Jolson

v.
NEW LEXINGTON TREE FARM, LLC,
et al.,
Defendants.

OPINION AND ORDER
This matter, in which the parties have consented to the jurisdiction of the Magistrate Judge
pursuant to 28 U.S.C. § 636(c) (Docs. 15–16, 52), is before the Court on Defendant Saltlick
Township Trustees’ Motion for Judgment on the Pleadings. (Doc. 40). For the reasons that follow,
the Motion is GRANTED in part and DENIED in part. More specifically, the Court GRANTS
the Motion as to Plaintiffs’ nuisance (Count VI) and slander of title (Count X) claims but DENIES
the Motion as to Plaintiffs’ remaining claims.
I.

FACTUAL BACKGROUND
Plaintiffs Jeffrey and Amy Friend own approximately 24.12 acres of real property located

in Saltlick Township, Perry County, Ohio (the “Friend Property”). (Doc. 19 at ¶ 13). Plaintiffs
allege that, on or about October 4, 2017, Defendants New Lexington Tree Farm, LLC (“NLTF”)
and Ohio Mulch Supply, Inc. (“Ohio Mulch”) entered the Friend Property, constructed a road
through it, removed and damaged trees, and left a permanent drive (“the NLFT/Ohio Mulch
driveway”). (Id. at ¶ 20). Plaintiffs further allege that the NLTF/Ohio Mulch driveway was built
solely for the private use of NLTF and Ohio Mulch. (Id. at ¶ 49).

Based upon those allegations, Plaintiffs filed the instant lawsuit against Defendants NLTF,
Ohio Mulch, Perry County Sheriff William Barker (in his official capacity), Deputy Cody Palmer
(in his personal capacity), and Saltlick Township Trustees (“the Township”). (See id.). Plaintiffs
set forth twelve claims in their Amended Complaint: a § 1983 claim for a violation of their Fifth
Amendment rights (Count I), a § 1983 claim for a violation of their Fourteenth Amendment
substantive due process rights (Count II), a § 1983 claim for a violation of their Fourteenth
Amendment procedural due process rights (Count III), a claim for trespass (Count IV), a claim for
conversion (Count V), a claim for nuisance (Count VI), a petition for the recovery of real property
under Ohio Revised Code § 5303.03 (Count VII), a claim for injury to trees under Ohio Revised
Code § 901.51 (Count VIII), a claim for civil conspiracy (Count IX), a claim for slander of title
(Count X), a claim for declaratory judgment under 28 U.S.C. § 2201 (Count XI), and a claim for
declaratory judgment under 28 U.S.C. § 2721.02 (Count XII). Plaintiffs also seek declaratory
judgment against all named defendants in this action. (Id. at 14–15).
With regard to the Township, Plaintiffs allege that it claims an easement or other property
interest over the Friend Property. (Id. at ¶ 36). Further, Plaintiffs allege that the Township
authorized and supervised the construction of the NLTF/Ohio Mulch driveway, “ostensibly as a
public road called ‘Saltlick Township Road 221.’” (Id. at ¶ 46).

According to Plaintiffs,

Defendants NLTF and Ohio Mulch brought Saltlick Township trustee James Denny to the scene.
(Id. at ¶ 32). Although Plaintiffs have sued the Township, they have not named Denny as a
defendant in this case. Allegedly, Denny stated that he knew nothing of the road but nevertheless
authorized NLTF and Ohio Mulch to proceed with the construction. (Id.). The Township, despite
its claimed easement over the property, allegedly did not follow proper protocol prior to opening
“Township Road 221.” (Id. at ¶ 37 (alleging that the Township “never opened dedicated, or platted

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such a road, nor was one ever created by any act of law, nor was any such action considered,
discussed, debated, reviewed, or mentioned at any public meeting”)); see also Ohio Rev. Code
Chapter 5571.

And, according to Plaintiffs, “[n]otwithstanding their sanctioning of the

construction of the NLTF/Ohio Mulch Driveway and their possessory claim over it as a township
road,” the Township “never maintained, placed on non-maintained status, or terminated the nonmaintained status” of Saltlick Township Road 221, nor does the Township currently “maintain or
operate” the road. (Id. at ¶ 38–39).
On July 5, 2018, Defendants Sheriff Barker and Deputy Palmer filed a Motion to Dismiss.
(Doc. 27). The Undersigned dismissed Plaintiffs’ claims against Sheriff Barker but permitted
Plaintiffs to proceed against Deputy Palmer. (Doc. 42). Relevant here, the Undersigned held that
Plaintiffs’ Amended Complaint established a plausible private-use taking claim and Plaintiffs
therefore were not subject to ripeness requirements pursuant to the Takings Clause. (See generally
id.).
II.

STANDARD OF REVIEW
The Federal Rules of Civil Procedure provide that, “after the pleadings are closed—but

early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ.
P. 12(c). “Judgment may be granted under Rule 12(c) where the moving parties clearly establish
that no material issue of fact remains to be resolved and that they are entitled to judgment as a
matter of law.” Williamson v. Recovery Ltd. Partnership, No. 2:06-CV-292, 2010 WL 3769136,
at *2 (S.D. Ohio Sept. 24, 2010) (citations omitted).
In examining a motion for judgment on the pleadings under Rule 12(c), the Court uses the
same standard of review applied to a Rule 12(b)(6) motion to dismiss for failure to state a claim.
Mixon v. State of Ohio, 193 F.3d 389, 399–400 (6th Cir. 1999). Accordingly, the court “must

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construe the complaint in a light most favorable to plaintiffs, accept all well-pled factual
allegations as true, and determine whether plaintiffs undoubtedly can prove no set of facts in
support of those allegations that would entitle them to relief.” Bishop v. Lucent Technologies, Inc.,
520 F.3d 519, 519 (6th Cir. 2008) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005)).
To survive a motion for judgment on the pleadings, the “complaint must contain either direct or
inferential allegations respecting all material elements to sustain a recovery under some viable
legal theory.” Id. (internal quotation marks omitted). Consequently, a complaint that consists of
“labels and conclusions” or “a formulaic recitation of the elements of a cause of action” is
insufficient. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
III.

DISCUSSION
A.

Constitutional Claims

The Township has moved for judgment on the pleadings regarding Plaintiffs’ constitutional
claims. Up front, the Court notes that Plaintiffs have brought takings claims under the federal and
Ohio Constitutions. The analysis of those claims differs. See, e.g., City of Norwood v. Horney,
853 N.E.2d 381 (Ohio 2006). Here, however, the Township has moved to dismiss only the federal
takings claim. As such, the differences can be put aside for now. Plaintiffs also assert substantive
and procedural due process claims relating to their property interests. (See Doc. 19, Counts II and
III). In broad terms, the Township argues the following with respect to Plaintiffs’ constitutional
claims: (1) Plaintiffs have alleged no official action on behalf of the Township and have therefore
failed to articulate a cause of action against the Township; and (2) Plaintiffs have failed to plead
the necessary elements of their constitutional claims. (See generally Doc. 40).

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1. Plaintiffs have articulated a cause of action against the Township.
The Township first contends that Plaintiffs have not shown that the Township engaged in
the discharge of an official duty and have therefore failed to state a cause of action against the
Township. (Id. at 4–5). Relatedly, the Township asserts that Plaintiffs’ constitutional claims are
based only on the actions of an individual township trustee, Denny, and that the actions of one
trustee cannot bind the Township as a whole. (Id. at 5). Plaintiffs respond that the Township
misconstrues their Amended Complaint. (Doc. 48 at 4–9). They explain that the allegations
against the Township are not based on the actions of one trustee but instead are based on their
contention that the trustees collectively authorized or supervised the construction of the road over
their property. (Id.).
As an initial matter, the Court is not persuaded by the Township’s argument that Plaintiffs’
allegations against it turn on the involvement of a single trustee. As noted, Plaintiffs allege that:
(1) the Township claims an easement or other property interest over the Friend Property, (Doc. 19
at ¶ 36); (2) that the NLTF/Ohio Mulch Driveway “was built by the authorization of and under the
supervision of the Saltlick Township Trustees, ostensibly as a public road called ‘Saltlick
Township Road 221,’” (id. at 46); and (3) notwithstanding this claimed easement, the Township
never formally opened, created, maintained or operated such a road and do not presently operate
or maintain such a road, (id. at ¶ 37–39). In viewing these allegations in a light most favorable to
Plaintiffs, the Court finds that Plaintiffs’ cause of action against the Township does not necessarily
rise and fall with the actions of a single trustee.
Importantly, it appears that the Township claims an easement or other property interest
over the Friend Property. Plaintiffs dispute the existence of such an easement and seek declaratory
relief that no easement exists over their property. (See Doc. 19, Count XI). Notably, the Township

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does not dispute that it has an easement or other property interest over the property. To the
contrary, the Township ostensibly acknowledges that it maintains such an interest. (See Doc. 40
at 2 (“Plaintiffs concede that Defendants, Saltlick Township Trustees [ ] claim ‘an easement or
other right’ over Plaintiffs’ property for Saltlick Township Road 221[.]”); see also id. at 9 (arguing
that Plaintiffs do not have a property interest in the Friend Property because an easement or other
right exists over the property)). Given this alleged property interest, one would expect the
Township to either present evidence of the easement or provide the Court with facts regarding
Saltlick Township Road 221 of which the Court could take judicial notice.
Curiously, instead of simply summarizing the process that took place prior to the opening
of Saltlick Township Road 221, the Township seizes on Plaintiffs’ allegation that the Township
did not engage in any formal process related to the road. Essentially, the Township argues the
following: How could it have engaged in official conduct if, as the Amended Complaint alleges,
the trustees did not open the road, do not presently operate or maintain the road, and never had an
official board meeting about the road prior to its opening? (See Doc. 40 at 4; Doc. 56 at 3–4).
The Court finds this logic flawed. The absence of a formal record of board proceedings
does not necessarily require a finding that the Township has not engaged in official conduct related
to the property. In fact, the Township elsewhere asserts that there is an easement over Saltlick
Township Road 221. (See id. at 9 (contending that Plaintiffs do not have a protected property
interest because an easement exists over the property in question)). While the contours of that
property interest are murky at this point in the litigation, Plaintiffs have sufficiently pled a plausible
cause of action against the Township. Said differently, the Township’s alleged easement over the
property is enough to keep the Township in this case at least for the time being.

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2. Plaintiffs have pled the necessary elements of their constitutional claims.
The Township also maintains that Plaintiffs’ Takings Clause claim and substantive and
procedural due process claims fail as a matter of law. (Doc. 40 at 7–10). More specifically, the
Township contends that: (1) Plaintiffs’ takings claim fails because it is not ripe for review; (2)
Plaintiffs’ procedural due process claim fails because Plaintiffs do not have a protected property
interest; and (3) Plaintiffs’ substantive due process claim fails because it is an improper
“repackaging” of their Fifth Amendment Takings claim. (Id. at 7–10). The Undersigned will
address each argument in turn.
a. Federal Takings Claim (Count I)
First, the Township asserts that because Plaintiffs failed to utilize the state-law procedure
to obtain just compensation for the alleged taking, Plaintiffs’ Fifth Amendment Takings claim is
not ripe for review. (Doc. 40 at 7–8). The Undersigned, in a September 11, 2018 opinion and
order, addressed the ripeness issue concerning Plaintiffs’ taking claim. (See Doc. 42). The
Undersigned found that Plaintiffs’ Amended Complaint set forth a plausible private-use taking,
and thus held that Plaintiffs’ Takings Clause claim was ripe for review. (Id. at 10). The Township
has not raised any novel arguments regarding Plaintiffs’ takings claim that persuade the Court
otherwise. As this Court previously noted, however, Plaintiffs must clear a high threshold to
succeed on a private-use claim. See Montgomery v. Carter Cty., Tennessee, 226 F.3d 758, 765– 66
(6th Cir. 2000) (noting that while there are “rare real-life example[s] of private-use takings,” these
“tend to be highly implausible hypotheticals”). As this case progresses, the Township might be
able to show a public use for Township Road 221. At this stage, however, the Court finds a
plausible private-use claim, and Plaintiffs’ takings claim survives.

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b. Procedural Process Claim (Count II)
Second, the Township contends that Plaintiffs’ procedural due process claim fails as a
matter of law. The Township asserts that because of the existence of an “‘easement or other right’
over Plaintiffs’ property where [Township Road] 221 is located,” Plaintiffs do not have a protected
property interest over the property in question, and consequently, cannot make out the elements of
their procedural due process claim. (Doc. 40 at 8–9). Accordingly, the Township seeks to rely on
the alleged easement in arguing that Plaintiffs do not have a protected property interest. In so
arguing, however, the Township protests against additional discovery (Doc. 56 at 5) and essentially
asks the Court to take judicial notice of the easement without citing evidence supporting the
existence of such an easement. This, the Court cannot do.
Indeed, Plaintiffs claim that no easement exists over their property and seek declaratory
relief stating as much. In their Amended Complaint, Plaintiffs allege a “plethora of legal rights,”
including the right to quiet enjoyment and use of their property, the right to exclude others from
their property, and their right to notice and hearing before these rights are infringed. (Doc. 19 at
¶ 65). Without evidence of the alleged easement over the property in question, the Court cannot,
at this stage, find that Plaintiffs do not have a property interest. As such, the Court takes Plaintiffs’
well-pled allegation that there are no other public roads, easements, or rights-of-ways through the
property (id. at ¶ 15) as true.
c. Substantive Due Process Claim (Count III)
Third, the Township contends that because Plaintiffs do not have a protected property
interest, their substantive due process claim also fails. (Doc. 40 at 9). As established, the Court
finds that Plaintiffs’ Amended Complaint articulates a protected property interest. Accordingly,
this argument also fails.

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Additionally, the Township maintains that Plaintiffs’ substantive due process claim fails
because it is an improper “repackaging” of Plaintiffs’ Fifth Amendment Takings claim. (See Doc.
40 at 10). The Sixth Circuit has permitted a plaintiff to assert substantive due process claims in
addition to a Fifth Amendment Takings Clause claim. See Montgomery, 226 F.3d at 768 (noting
that “this circuit’s precedent permits [ ] assertion of substantive due process and procedural due
process claims” in addition to a Fifth Amendment Takings Clause claim) (citing Pearson v. City
of Grand Blanc, 961 F.2d 1211, 1215 (6th Cir. 1992)). By the same token, however, a party may
not simply “repackage” a Takings Clause claim as a substantive due process claim where the
Takings Clause of the Constitution more directly addresses the government violation at issue. See
Am. Express. Travel Related Services, Inc. v. Kentucky, 597 F. Supp. 2d 717, 726 (E.D. Ky. 2009).
Nor may a party bring a substantive due process claim as an “end run” around the ripeness
requirements pursuant to the Takings Clause. See Montgomery, 226 F.3d at 769; see also Arnett
v. Myers, 281 F.3d 552, 562 (6th Cir. 2002). With these limitations in mind, however, a party may
bring both a Takings Clause claim and substantive due process claim if the substantive due process
claim articulates a “distinguishable, separate ‘avenue . . . for assertion of a substantive due process
claim.’” Am. Express Travel Related Services, Inc., 597 F. Supp. 2d at 726 (quoting Warren v.
City of Athens, Ohio, 411 F.3d 697, 707 (6th Cir. 2005)).
Here, the Court finds that at this early stage in the litigation, Plaintiffs have established a
plausible substantive due process violation that survives the Township’s Motion.

In their

Amended Complaint, Plaintiffs assert that “Defendants’ Saltlick Township Trustees’ [and other
Defendants’] conduct was outrageous, unreasonable, arbitrary and capricious, and has no
foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial
relation to the public health, the public morals, the public safety or the public welfare in its proper

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sense.” (Doc. 19 at ¶ 61). In response to the Township’s Motion, Plaintiffs acknowledge that they
may not simply repackage their Takings Clause claim as a substantive due process claim, but
counter that the two claims are distinct in this case. (See Doc. 48 at 13 (noting that “this case is
not simply the taking of Plaintiffs’ private real property; it is the unannounced, unwarranted, and
unconscionable invasion of their property with heavy construction equipment, the destruction,
removal and conversion of their trees, the construction of a road for ostensibly public purposes,
and the exclusive use and enjoyment of that road by another private party[.]”)).
As this case progresses, the facts may establish that Plaintiffs may pursue only their
Takings Clause claim and not their broader substantive due process claim. At this point, however,
the Court finds that Plaintiffs have pled a plausible substantive due process claim that survives the
Township’s Motion.
B.

Tort Law Claims (Count IV–Count X)

In addition to their constitutional claims, Plaintiffs have also brought a number of tort and
state-law claims. Specifically, Plaintiffs have filed a claim for trespass (Count IV), a claim for
conversion (Count V); a claim for nuisance (Count VI), a petition for the recovery of real property
under Ohio Revised Code § 5303.03 (Count VII), a claim for injury to trees under Ohio Revised
Code § 901.51 (Count VIII), a claim for civil conspiracy (Count IX), and a claim for slander of
title (Count X).
The Township maintains that, as a political subdivision, it is immune from Plaintiffs’ state
tort law claims. (Doc. 40 at 11). Relatedly, it contends that because it is entitled to immunity on
these claims, Plaintiffs’ civil conspiracy claim fails because there is no underlying tort action from
which a civil conspiracy claim can stem. (Id. at 12).

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Upon review of the Amended Complaint, the Court finds that Plaintiffs have brought all
but two of these claims against only two Defendants—NLTF and Ohio Mulch. (See Doc. 19,
Count IV (Trespass) (“The conduct and actions of Defendants NLTF/Ohio mulch . . . constitute
. . . a trespass to real property.”); Count V (Conversion) (“The Defendants NLTF/Ohio Mulch
intentionally, maliciously, and wrongfully dispossessed Plaintiffs of their property[.]”); Count VII
(O.R.C. § 5303.03 – Petition for Recovery of Real Property) (“The Defendants NLTF/Ohio Mulch
unlawfully entered upon and occupied the Friend Property without right thereto and without the
consent of the Plaintiffs.”); Count VII (O.R.C. § 901.51–Injury to Trees) (“Defendants NLTF/Ohio
Mulch, without privilege or right to do so, did unlawfully cut, damage, remove, and destroy
dozens, if not hundreds of Plaintiffs’ trees.”)). Accordingly, because Plaintiffs have not brought
the above claims against the Township, the Court need not address the question of the Township’s
immunity as to these claims.
With regard to Plaintiffs’ remaining tort claims, nuisance (Count VI) and slander of title
(Count X), the Court finds that the Township is immune from suit. As for their nuisance claim,
Plaintiffs allege that “[t]he NLTF/Ohio Mulch Driveway constitutes a private nuisance against the
Plaintiffs, created and sustained by the Defendants” and that “[t]he condition of the NLTF Ohio
Mulch Driveway over the Friend Property was intentionally caused by the Defendants.” (Doc. 19
at ¶ 78–79). As for their slander of title claim, Plaintiffs allege that “Defendants individually and
collectively declared that the NLTF/Ohio Mulch driveway is a public easement (or public road)
across the Friend Property, which is a false statement” and that “Defendants made their statement
with malice or with reckless disregard for its falsity.” (Id. at ¶¶ 92, 94).
“Determining whether a government entity is immune from tort liability is a three-tiered
analysis.” Thornton v. Cleveland, 890 N.E.2d 353, 355 (Ohio Ct. App. 2008). Ohio Revised Code

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(“O.R.C.”) Chapter 2744.02(A)(1) sets forth the general blanket immunity applicable to political
subdivisions. It provides that a political subdivision is generally not liable in a civil action for
injury, death, or loss to person or property incurred while performing governmental or proprietary
functions. See id. There are five exceptions to this statutory immunity: (1) negligent operation of
a motor vehicle; (2) negligent conduct of employees while carrying out a proprietary function; (3)
a municipality’s failure to keep roads and sidewalks free from nuisance; (4); injury or loss that
occurs on or within buildings used for governmental functions and is caused by the negligence of
the municipality’s employees; and; (5) any other situation in which liability is expressly imposed
by the Revised Code. See O.R.C. 2744.03(A) (1–5).
Here, because the construction of public roads is a proprietary function (see O.R.C.
2744.01(H)), the second exception listed above could apply under the facts of this case as an
exception to the Township’s blanket immunity. Upon review of Plaintiffs’ Amended Complaint,
however, the Court finds that Plaintiffs’ nuisance and slander of title claims do not allege any
negligent behavior on behalf of the Township. To the contrary, Plaintiffs assert that Defendants
“intentionally” caused a private nuisance (Doc. 19 at ¶ 79), and that Defendants made the
declaration that the NLTF/Ohio Mulch Driveway is a public easement or public road across the
Friend Property “with malice or with reckless disregard for its falsity.” (Id. at ¶ 94). Because
O.R.C. 2744.02(B) includes no specific exceptions for intentional torts, courts have consistently
found that political subdivisions are immune from intentional tort claims. See Wilson v. Stark Cty.
Dept. of Human Services, 639 N.E.2d 105, 107 (Ohio 1994). Accordingly, because none of the
five exceptions apply in this case, the Township is statutorily immune from liability as to Plaintiffs’
nuisance (Count VI) and slander of title (Count X) claims.

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IV.

CONCLUSION
Based on the foregoing, the Township’s Motion for Judgment on the Pleadings (Doc. 40)

is GRANTED in part and DENIED in part. The Court GRANTS the Motion as to Plaintiffs’
nuisance (Count VI) and slander of title (Count X) claims but DENIES the Motion as to Plaintiffs’
remaining claims.
IT IS SO ORDERED.
Date: December 7, 2018

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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