Brady v. Haines

2021 Ohio 4565

• Court: Ohio Court of Appeals
• Decided: December 27, 2021
• Docket: 9-21-09
• Status: Published

Opinion

[Cite as Brady v. Haines, 2021-Ohio-4565.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

JUDITH R. BRADY, AS TRUSTEE OF THE BRADY FAMILY REVOCABLE CASE NO. 9-21-09 LIVING TRUST, DATED APRIL 27, 2016,

PLAINTIFF-APPELLANT,

v.

JAMIE L. HAINES & MECHELE R. HAINES, OPINION

DEFENDANTS-APPELLEES.

Appeal from Marion County Common Pleas Court General Division Trial Court No. 19 CV 187

Judgment Affirmed

Date of Decision: December 27, 2021

APPEARANCES:

Todd A. Anderson for Appellant

Donald K. Wick for Appellees Case No. 9-21-09

WILLAMOWSKI, P.J.

{¶1} Plaintiff-appellant Judith R. Brady, as Trustee of the Brady Family

Revocable Living Trust dated April 27, 2016 (“Brady”) brings this appeal from the

judgment of the Court of Common Pleas of Marion County denying her request for

an injunction and awarding damages to the trust. On appeal, Brady claims that the

trial court erred by denying the injunction requiring defendants-appellees Jamie L.

Haines and Mechele R. Haines (collectively known as “the Haines”) to remove the

garage encroachment. For the reasons set forth below, the judgment is affirmed.

{¶2} This case arises out of the construction of a building in 2010 and the

installation of a concrete driveway in 2016. Brady owns undeveloped agricultural

real property that is next to real property owned by the Haines. In 2010, the Haines

sought a zoning variance to allow them to construct a garage closer to the property

line than the township’s required five foot set-back. The Township Board granted

the variance upon motion “to approve placement of a 24x30 accessory building with

foundation at least 2’ away from the north property line.” Ex. 1. The variance

required that the zoning inspector verify that the foundation was at least 2’away

from the north property line. Ex. 1. Bradford Brady, who owned the adjacent

property to the north at that time was present at the zoning board’s meeting and

indicated that he had no problem with the variance being granted. Ex. 1. Jamie

Haines used the stakes placed on the property line from a prior survey and ran string

between them to mark the property line and the placement of the building. Tr. 139.

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Both Bradford Brady and the zoning inspector observed the placement and the

zoning inspector approved the construction in 2010. Tr. 139. No concerns were

ever raised outside of one vague Facebook comment several years later. Tr. 140.

{¶3} In 2016, the Haines added a concrete drive to the building. The

driveway was placed on top of the gravel driveway that had previously been in place

for years and was known to abut Brady’s property. As there is no setback

requirement for driveways, this was not an issue. Tr. 15. After Bradford’s death in

2015, Brady decided to reestablish the fence line between the properties and had a

survey conducted by Steven Fox (“Fox”) in 2018. Tr. 27, 111. Fox testified that the

survey showed the corner of the building encroached across the property line by

0.1’ for a distance of 0.51’ with the overhang. Tr. 32. The actual foundation

encroached across the

property line by 1.25”. Tr.

33. At the most extreme

point, the overhang

encroached on the

property by 12”, but

tapered down to no

encroachment due to the

angles. Tr. 44.

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{¶4} The survey also showed that in addition to a lead pipe that was found

to mark the property line, an iron pin from another survey was found 1.35’ from the

actual property line. Tr. 30, Ex. 7. Fox indicated that this second pin was likely

placed in error and could be partially responsible for the problems. Tr. 30-32, 46.

When questioned by the trial court, Fox testified that in that area, an acre of land

was selling between $6,000 and $8,000. Tr. 46.

{¶5} As Brady was installing a fence, a dispute arose about where the

property line actually was. Tr. 113, 145. The Haines contacted an attorney who

sent a letter to Brady. Brady then contacted her attorney. On March 12, 2019, Brady

filed a complaint alleging 1) violation of the zoning code, 2) trespass, and 3)

obstruction of line fence work. Doc. 1. Brady sought an injunction to remediate

the improper encroachment, damages for trespass, court costs, and attorney fees.

Doc. 1. The Haines filed an answer to the complaint denying the violations and

setting forth various defenses.1 Doc. 6.

{¶6} On December 3, 2020, the parties entered into a partial stipulation that

the building was in violation of the zoning code and that the building and driveway

had encroached onto Brady’s land. Doc. 54. A bench trial was held before the

magistrate on that same day. Doc. 57. The magistrate acknowledged the stipulation

as to liability and noted that the only issue before it was damages. Tr. 5-7. At the

1 The Haines filed a cross-complaint alleging that the surveyor who conducted the 2005 survey upon which they relied had failed to follow industry standards, but the cross-complaint was dismissed on summary judgment based upon the statute of limitations and a lack of privity. Doc. 19, 39.

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trial, Brady asked the trial court to grant the injunction and order the Haines to move

the driveway and the building and to award attorney fees. Tr. 116-120. Jamie

Haines testified that Exhibit A showed the prospective cost of moving the building

to be approximately $24,200.00. Tr. 148. He asked the trial court to allow the

Haines to purchase the land upon which they were encroaching rather than move

the building. Tr. 148.

{¶7} Following the trial, the magistrate issued a thorough decision setting

forth the following relevant findings of fact.

The encroachment of the building and overhang was about 1 ft. onto the Plaintiff’s property. Including the setback on the Defendant’s property, this was a 3 ft. violation of the variance granted. This encroachment formed a right triangle with the property line/setback line. The base of the encroachment was 5.5 feet. * * *

Using basic geometry within common knowledge, the final side of the triangle is about 4.6 feet, and the area of the encroachment by the building is 6.9 square feet, given the Plaintiff are given [sic] the benefit of the two foot setback on land belonging to the Defendants. (Area of a triangle = ½ * base (3) * height (4.6) = Area (6.9 sq. ft.)).

Doc. 57 at 3. The magistrate estimated, based upon the testimony of Fox, that the

encroachment by the driveway was at most 6 2/3 square feet. Id. The magistrate

also found that the errant pin found in Fox’s survey created the dispute and the

inaccurate measurements. Id. at 4. The magistrate conducted a sight view. Id. at

5. Based upon that information and the testimony, the magistrate found that “[t]here

was no credible testimony that the encroachments of [the Haines] actually impeded

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or preclud[ed] any staging or farming activities of [Brady].” Id. The magistrate

then made the following findings regarding the building.

First, this was an accidental encroachment. Although there was lengthy testimony and debate over the incorrect pin that the Defendants used to build the garage and driveway, there was nothing established beyond the unintentional use of the wrong pin that was within a couple of feet of the correct pin, on asymmetric lots.

There was no evidence presented that there was bad faith, recklessness, or an intentional act in the inadvertent use of the wrong boundary. Even the Plaintiff ultimately used an imprecise GIS photograph as Exhibit 4 to show the encroachment. If it were bad faith or recklessness to use an incorrect pin, close to the correct pin, and use that in good faith, then Exhibit 4 would not have been appropriate to consider at the trial. * * * If the Court gives the Defendants the same consideration the Plaintiff has given herself, the Court can only find the error by the Defendant to be in good faith, but ultimately incorrect.

Id. at 9-10. The magistrate noted that although Brady alleged that the encroachment

made a significant limitation on the ability to farm the property, the evidence did

not support a conclusion other than the effect was de minimus having “no practical

effect” on the ability to farm the land. Id. at 10. The magistrate found the cost of

moving the building to be $24,200, as was shown by the estimate presented by the

Haines. Id. Using an excessive value of the property of $20,000 an acre, the cost

to Brady for the encroachment was a mere $3.17. Id. at 11. After evaluating all of

the evidence and the applicable case law, the magistrate awarded damages to Brady

at $3.17 for the encroachment of the building and granted an easement for the

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minimal encroachment and $3.07 for the encroachment of the driveway and ordered

the encroaching part of the driveway to be removed. Id. at 15-16.

{¶8} On December 22, 2020, Brady filed objections to the decision of the

magistrate. Doc. 62. Brady objected to the magistrate’s denial of the injunction,

claiming that the findings of fact and conclusions of law reached by the magistrate

were in error. Id. The Haines filed a response to the objections on February 26,

2021. Doc. 68. On March 3, 2021, the trial court adopted the magistrate’s decision,

overruling the objections of Brady. Doc. 69. Brady appeals from this judgment.

Doc. 70. On appeal, Brady raises the following assignment of error.

The trial court erred as a matter of law and abused its discretion in refusing to grant an injunction requiring [the Haines] to remove the garage encroachment.

{¶9} The sole assignment of error alleges that the trial court erred in denying

the injunction requiring the Haines to move the garage. Although an injunction is a

proper remedy for a landowner to use to compel an adjoining landowner to remove

an encroachment, the granting of an injunction is within the sound discretion of the

trial court. Garcia v. Gilette, 11th Dist. Ashtabula No. 2013-A-0015, 2014-Ohio-

1868, ¶ 28 citing Varwig v. Cleveland, C.C. & St. L.R. Co., 54 Ohio St. 455, 44 N.E.

92 (1896).

Most jurisdictions permit a court to balance the relative hardships to the parties in devising an appropriate equitable remedy. These jurisdictions hold that where the expense and difficulty of removal of an encroachment would be great and the encroachment was causing minimal damage to the plaintiff, or its

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removal would result in little benefit to him, a mandatory injunction is not required.

Id. See also Annotation, Mandatory Injunction to Compel Removal of

Encroachments by Adjoining Landowners, 28 A.L.R.2d 679 and Old Mill Village

Homeowners Assn. v. Bacik, 9th Dist. Medina No. 2118, 1993 WL 27416 (Feb. 3,

1993). Since the decision whether to grant an injunction is within the discretion of

the trial court, it will not be reversed on appeal absent a showing that the trial court’s

decision was unreasonable, arbitrary, or unconscionable. Howland v. Purdue

Pharma L.P., 104 Ohio St.3d 584, 2004-Ohio-6552, ¶ 26, 821 N.E.2d 141.

{¶10} Brady argues that the injunction should have been granted because the

Haines were reckless or negligent in the placement of the building by not having a

survey done before building. Brady relies upon the holding in Bethel v. Haney, 5th

Dist. Tuscarawas No. 2006 AP 110065, 2007-Ohio-6452. In Bethel, the court

reversed the judgment of the trial court denying an injunction and ordered the

encroachment to be removed, even though the cost of doing so was much higher

than the economic damages to the landowner. A review of this case shows that it is

not as dispositive as Brady would like. Brady argues that it stands for the

proposition that an injunction cannot be denied if the encroacher took a calculated

risk, acted in bad faith, acted negligently or acted indifferently when placing the

encroaching structure. While Bethel does contain a sentence stating such, it is one

of several factors to be considered. Id. at ¶ 31. In Bethel, the Court determined that

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the evidence showed that any encroachment was not intentional and used a

balancing test. Id. at ¶ 33-34. The holding in Bethel was based upon the fact that

the appellate court determined that the injunction would not create an “enormous

disparity in resulting hardship” and thus determined that the landowner would be

irreversibly harmed by denying the injunction. Id. at 34.

{¶11} The majority of courts, including Bethel, apply a balancing test when

reviewing the denial or granting of an injunction.

The extraordinary nature of the remedy by injunction calls for a particular application of equitable principles, and it may be said to be the duty of the court to consider and weigh the relative conveniences and comparative injuries to the parties which would result from the granting or refusal of injunctive relief. Because of the drastic character of mandatory injunctions, such rules apply with special force to them.

When the court is thus asked to undo something that has been done, it must, for obvious reasons, act in a careful and conservative manner and grant the relief only in situations which so clearly call for it as to make its refusal work a real and serious hardship and injustice.

The facts which will warrant mandatory relief must be clear, be free from reasonable doubt, and disclose the prospect of irreparable injury to the complainant. Equity will not interfere where the anticipated injury is doubtful or speculative; reasonable probability of irreparable injury must be shown. Such relief will be refused where the injury is so slight as to bring the case within the maxim “de minimis non curat lex,” where there is no appreciable damage, where a mandatory decree would require a difficult and expensive act, or where its enforcement would necessitate close and continuous supervision by the court for an indefinite period. As in other cases of injunction, the court will balance the equities between the parties and consider the benefit

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to the plaintiff of a mandatory writ as against the inconvenience and damage to the defendant, and award relief accordingly.

***

In Arnold v. Melani (1969), 75 Wash.2d 143, 449 P.2d 800, the Supreme Court of Washington upheld the denial of a mandatory injunction for the removal of an encroaching structure on the property of a neighboring landowner. The court stated at 152- 152, 449 P.2d at 806:

“As thus construed, * * * Peoples Sav. Bank v. Bufford [ (1916), 90 Wash. 204, 155 P. 1068], supra, and Tyree v. Gosa [ (1941), 11 Wash.2d 572, 119 P.2d 926], supra, support the premise that a mandatory injunction can be withheld as oppressive when, as here, it appears (and we particularly stress), that: (1) The encroacher did not simply take a calculated risk, act in bad faith, or negligently, willfully or indifferently locate the encroaching structure; (2) the damage to the landowner was slight and the benefit of removal equally small; (3) there was ample remaining room for a structure suitable for the area and no real limitation on the property's future use; (4) it is impractical to move the structure as built; and (5) there is an enormous disparity in resulting hardships.

Miller v. W. Carrollton, 91 Ohio App.3d 291, 296-97, 632 N.E.2d 582 (2d Dist

1993).

{¶12} In Old Mill Village Homeowners Association v. Bacik, supra, the

Ninth District Court of Appeals addressed an issue similar to the one before us. In

Bacik, the Baciks built a deck that encroached upon the Association’s property by

approximately nine inches and landscaping that encroached approximately 13 feet

onto the Association’s property. The Association asked the Baciks to remove the

encroachments and when they refused, the Association filed a complaint for an

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injunction. The trial court eventually denied the motion for the injunction and

instead ordered the Baciks to pay damages in to the amount of $500 and granted the

Bacik’s a permanent easement in the disputed property. The Association appealed

claiming the trial court erred by failing to grant the injunction. On appeal, the Court

determined that although the trial court abused its discretion by not granting the

injunction regarding the landscaping, it did not do so in regards to the deck.

A distinction must be made in this case between the nine inch encroachment caused by the deck and the thirteen foot encroachment caused by railroad ties and additional landscaping. We find that the trial court did not abuse its discretion in denying an injunction with regards to the nine inch encroachment of the deck. Bacik had permission from the Association to build the deck. While there is no evidence that the plans submitted for approval disclosed the encroachment, there is also no evidence that the encroachment was caused in bad faith. There was evidence presented that moving the deck back 9 inches would be expensive. Furthermore, the Association’s damages due to the nine inch encroachment were minimal, as the property in question was used only as a drainage ditch. In weighing the relative hardships to the parties with respect to the nine inch encroachment, and considering that $500.00 was ordered paid to the Association as compensation, we find no abuse of discretion with regards to denying an injunction for this encroachment.

Id. at *2. The Court also held that the trial court did not abuse its discretion by

granting a permanent easement.

{¶13} Here, the trial court reviewed the testimony and exhibits and

determined that the encroachment by the garage and the driveway were not

intentional or reckless. The trial court determined that the encroachment was caused

by a prior survey mistake. The testimony was that there were stakes placed that

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were thought by all involved, including Bradford Brady, to mark the property line.

Timothy Mooney, a trustee for Claridon Township, testified that at the hearing on

the variance, Bradford Brady indicated he supported the variance. Tr. 17. Exhibit

1 showed that the foundation was required to be two foot from the property line and

that the township zoning inspector had to inspect it for compliance. Jaime Haines

testified that he thought he was in compliance because he ran string between the

stakes he believed to be the property markers. Tr. 139. He also used string to mark

the layout of the garage. Tr. 139. The placement was reviewed by both Bradford

and the zoning inspector, who checked to make sure he was in compliance with the

variance. Tr. 139. No objections were raised at that time. Tr. 139. Additionally,

Steven Fox (“Fox”), the surveyor for Brady, testified that there was an incorrect pin

set at the back corner of the property and he marked such on Exhibit 7. Tr. 28-32.

Fox also testified that the incorrect pin could be a cause of the problem. Tr. 46. The

determination of the trial court was supported by competent, credible evidence,

therefore this court will defer to the trial court’s factual finding that the Haines acted

unintentionally and in good faith.

{¶14} “In cases where the encroachment was not intentional, courts will

balance the equities of the parties, weighing the relative conveniences and

comparative injuries to each party that would result from granting or refusing to

grant injunctive relief.” Collier v. Dorcik, 9th Dist. Medina No. 3009-M, 2000 WL

1751301, *3 (Nov. 29, 2000). Such a consideration occurred in this case. The trial

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court noted in its judgment entry that the cost of removing the encroachment, as

shown by Exhibit A, would be $24,200. Although Brady claims that this amount

was speculative, Brady did not present any evidence contrary to it and the trial court

was free to determine it was a credible estimate. In contrast, Brady argued that not

granting the injunction would harm the ability to continue farming the land. The

trial court found this to be lacking in credibility. This Court agrees. The

encroachment of the garage by a little over one foot (the amount the 12” overhang

would be on Brady’s property since the foundation encroached by 1”) is rather

minimal. Brady’s son testified that the land in question is approximately 80’ wide

and is used to stage farming equipment. Tr. 52-56. The equipment is brought in

folded up and is unfolded after it goes through a 40’ gate, which is located after the

encroachment. Tr. 56-59. The trial court noted that the 6.9 square foot

encroachment (including the portion of the garage on the Haines’ property but

within the setback) “had a de minimis effect on the staging area, and had no effect

on the 40 ft. gate area where equipment would enter the property. There was no

practical effect on the Plaintiff’s ability to farm the land or any portion of the

connected farms.” Doc. 69 at 14. This finding by the trial court is not only

supported by the testimony presented by Brady herself, but also by looking at the

history. The garage was built in 2010. The land was continuously farmed without

any complaints or issues for several years. No testimony was presented that the

property was not currently being farmed. Exhibit 7 shows exactly how much

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encroachment exists in relation to the property as a whole. Based upon the record

before this court, the trial court did not abuse its discretion in determining that the

damage to Brady was slight and the benefit to Brady would gain by granting the

injunction was also slight.

{¶15} The trial court next looked at the effect on the use of the property if

the encroachment remained. Brady testified that she had no interest in selling the

property at any price and intended to farm it. Tr. 108. The trial court determined

that the encroachment had no effect on the use of the land as a staging area. Doc.

69 at 15. The trial court determined that even if Brady wished to put a structure on

the property, the minimal encroachment would not interfere with her ability to do

so. Doc. 69 at 15. The trial court also determined that it was impractical to move

the garage and that there would be enormous disparity in resulting hardships. Even

using a figure of $20,000, more than double the market rate for farmland in the area,

the amount of loss suffered by Brady for the encroachment, including the amount

in the setback, was $3.17. Doc. 69 at 16. The cost of moving the building was

$24,200 per the itemized estimate provided to the trial court and the testimony of

Jaime Haines. All of the findings of fact and conclusions of law made by the trial

court were supported by evidence in the record and are not unreasonable, arbitrary,

or unconscionable. Thus, the judgment of the trial court was not an abuse of

discretion. The assignment of error is overruled.

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{¶16} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Court of Common Pleas of Marion County

is affirmed.

ZIMMERMAN and MILLER, J.J., concur.

/hls

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