In Efje 6upreme Court ®f ®fjiu Exhibit 6 Defendants' Reply Brief in Support of Motion to Dismiss...

In Efje 6upreme Court ®f ®fjiu

State ex rel. Summit County Republican PartyExecutive Committee,

Relator,: Case No. 08-0478

: Original Action in Mandamusvs.

Secretary of State Jennifer Brunner

Respondent.

RESPONDENT'S EVIDENCE - VOLUME VIIExhibits 1 to 23 - Selected Filings from City of Hudson v. William E. Vareas et al.,

Case No. 2006-11-7340, Summit County Court of Common Pleas

Exhibit 1 Complaint for Declaratory Judgment, Injunction and Other Civil Relief

Exhibit 2 Answer of Defendants

Exhibit 3 Defendants' Response to Plaintiff's First Set of Interrogatories and Request forProduction of Documents and Request for Admissions

Exhibit 4 Defendants' Motion to Dismiss for Failure to Join Necessary Parties

Exhibit 5 Plaintiff's Opposition to Defendants' Motion to Dismiss for Failure to JoinNecessary Parties

Exhibit 6 Defendants' Reply Brief in Support of Motion to Dismiss for Failure to JoinNecessary PartiesJ

Exhibit 7 Memorandum in Support of Plaintiff's Motion to Strike Defendants' Reply Brief,or, in the Alternative, Motion for Leave to File SurReply

Exhibit 8 Defendants' Motion for PreTrial

Exhibit 9 Plaintiff's Reply to Defendants' Motion for PreTrial

Exhibit 10 Plaintiff's PreTrial Statement

Exhibit I 1 Notice of Deposition of City of Hudson Water Departm

MAR 'i ^^ NO

CLERK OF COUR7'SUPREME COURT OF OHIO

Exhibit 12 Judgment Entry

Exhibit 13 Amended Complaint for Declaratory Judgment, Injunction and other Civil Reliefand Adding New Party Defendants

Exhibit 14 Answer and Cross-Claim of Defendants William E. Vagas and Debra Vagas

Exhibit 15 Answer of Defendants Brian K. Daley and Raija Daley

Exhibit 16 Answer and Cross-Claim of Defendants Brian K. Daley and Raija Daley

Exhibit 17 Defendants' Answer to Cross-Claim

Exhibit 18 Notice of Voluntary Dismissal without Prejudice

Exhibit 19 Motion for Leave to File a Counter-Claim against City of Hudson

Exhibit 20 Motion for Sanctions

Exhibit 21 Memorandum in Opposition to Motion to Consolidate

Exhibit 22 City of Hudson's Brief in Opposition to Defendants Motion for Sanctions

Exhibit 23 Order for Leave to File Reply Brief

MARC DANN (0039425)Ohio Attorney General

Richard N. Coglianese (0066830)[email protected] ofRecordWilliam C. Becker (0013476)Damian W. Sikora (0075224)Pearl M. Chin (0078810)Assistant Attorneys General30 East Broad Street, 16th FloorColumbus, Ohio 43215614-466-2872614-728-7592 fax

Attorneys for RespondentOhio Secretary of State Jennifer Brunner

Certificate of Service

This is to certify that a copy of the foregoing Respondent's Evidence, Vol. VII,was served upon the following, on this 14th day of March 2008, by US Mail, postageprepaid:

Timothy J. GrendellGrendell & Simon Co., LPABroadview Heights, Ohio 44147440-746-9604 (Fax)

Attorney for Relator

w .t'\ ^'.A_.E^,KI20^Si;^Yl4 F^^3^10

I •' _'^j•^..1 I

^'•^n^^^^••n^^ ^^-^^

Plaintiff,

Defendants.

CASE NO.

2006 -11- 73 40

ASSIGNED TO JUDGE BONDJUDGE

COMPLAINT FOR DECLARATORY JUDGMENT,INJUNCTION AND OTHER CIVIL RELIEF

IN THE COURT OF COMMON PLEASSUMMIT COUNTY, OHIO

I CTTY OF HUDSON, OHIO,an Ohio Municipal CorporationTown Hall

127 East Main StreetHudson, Ohio 44236

V.

i WILLIAM E. VAGASI Stokes LaneHudson, Ohio 44236

1 and

DEBRA A. VAGASI Stokes LaneHudson, Ohio 44236

Now comes, Plaintiff, CTCY OF HUDSON, OHIO (hereinafter the "City"), by and

through the undersigned counsel, and for its Complaint against Defendant WILLIAM E.

EXHIBIT

(

VAGAS and Defendant DEBRA A. VAGAS (hereinafter "Defendants"), hereby states and avers

as follows:

PARTIES

1. The City is an Ohio municipal corporation located in Summit County and existing

under the laws of the State of Ohio.

2. Defendants are the record owners of the property known as 1 Stokes Lane,

Hudson, Ohio 44236, which is also known as 304 Stokes Lane, Hudson, Ohio 44236.

3. Defendants own property in Summit County and conducted activity that gave rise

to the claims asserted herein in Summit County and venue is otherwise proper pursuant to Ohio

R. Civ. P. 3(B)(3) and (6).

BACKGROUND FACTS

4. Plaintiffs incorporate each and every allegation contained in Paragraphs I through

3 above as if fully rewritten herein.

5. Pursuant to the powers granted to municipal corporations under Article XVIII,

Section 4 of the Ohio Constitution, the City operates its own Water Department.

6. Pursuant to its police powers granted under Article XVIII, Section 3 of the Ohio

Constitution, the City adopted Rules and Regulations for the operation of the City's Water

Department. Section 10 of the Rules and Regulations reads as follows:

No single service shall service more than one meter except in special caseswhich must be approved by the Superintendent of Water Department. In acase where one or more properties are serviced from the same service line,each service must have an independent Curb Valve.

Section 1040.07 of the Codified Ordinances of the City of Hudson provides that:

The Manager may make and enforce such rules and regulations as may bedeemed necessary for the safe, economical and efficient management andprotection of the Municipal water system, for the construction and use of

2487137-I

water lines and facilities, for connections to the water system, and for theregulation, collection, rebating and refunding of charges or rentals,provided that such rules and regulations are not in conflict with anyMunicipal ordinance. No person shall violate or fail to comply with anysuch rule or regulation.

8. In the fall of 2004, the City became aware that the water line servicing

Defendants' residence is fed from a tie-in to the water line and meter servicing Defendants'

neighbor's residence. The water line servicing Defendants' residence traverses under the

structure of Defendants' neighbor's house. The City has no records of the Superintendent of the

Water Department approving water service to Defendants' residence in this matter.

9. Should Defendants' neighbor's water service be shut-off, Defendants' residence

would also be without water.

10. In January of 2006, the City sent a letter to Defendants notifying them that their

use of the water line servicing their neighbor's residence violated Section 10 of the Rules and

Regulations of the Water Department and further advising Defendants that they needed to

discontinue their use of that water line.

11. In February of 2006, Defendants told the City that they were attempting to obtain

an easement for the installation of a new water line to service their residence and that they

expected to have the project completed by the end of Summer 2006.

12. In July of 2006, the City advised Defendants that they had until the end of

August, 2006 to complete the project.

13. Altemate water service is now available to Defendants' residence. A water line

easement agreement recorded with the Summit County Fiscal Agent on May 1, 2006, shows that

Arthur J. Stokes, Jr, Executor of the Estate of Helen M. Stokes, granted Defendants an easement

3487137•1

to install a new water line across a portion of the Estate's property. A copy of the Easement is

attached hereto as Exhibit "A."

14. As of this date, Defendants have not discbntinued their use of the water line

servicing Defendants' neighbor's home and have not cottstructed a new water line to service

their residence.

COUNT ONE - DECLARATORY JUDGMENT

15. The City incorporates each and every allegation contained in Paragraphs I

through 14 above as if fully rewritten herein.

16. Pursuant to Civ. R. 57 and R.C. 2721.03, Plaintiffs are entitled to a declaration

that Section 10 of the Rules and Regulations of the City's Water Department is a valid exercise

of the City's police power granted under Article XVIII, Section 3 of the Ohio Constitution and,

as a result, Defendants must comply with this local health and safety regulation.

COUNT TWO - INJUNCTION

17. The City incorporates each and every allegation contained in Paragraphs 1


18. Pursuant to Civ. R. 65(B), Plaintiffs request that the Court issue an injunction

Orohibiting Defendants from failing to comply with Section 10 of the Rules and Regulations of

ithe City's Water Department and further ordering Defendants to discontinue use of the water line

iservicing Defendants' neighbor's residence and to eonstruct a new water line to service their

home via the easement granted to Defendants for this purpose.

19. Defendants failure to comply with Section 10 of the Rules and Regulations of the

City's Water Department poses a health and safety hazard to the residents of the City for which

money damages will not provide an adequate remedy.

4^87137•1 •

_.

COPY

WHEREFORE, Plaintiffs demand judgment as follows:

(1) An order declaring that Section 10 of the Rules and Regulations of the City WaterDepartment is a valid exercise of the police powers granted to the City underArticle XVIII, Section 3 of the Ohio Constitutiotl and, as a result, Defendantsmust comply with this local health and safety regulation;

(2) An order enjoining Defendants from failing to comply with Section 10 of theRules and Regulations of the City Water Department and further orderingDefendants to discontinue using the water line servicing Defendants' neighbor'sresidence and to install a new water line to service Defendants' residence throughthe easement granted to Defendants for that purpose; and

(3) Such other and further relief which the Court deems just and appropriate.

Respectfully submitted,

Char?KT.Ytiehl (Reg. No. 0010971)City SolicitorE-mail: [email protected] Dial: 216-928-2895R. Todd Hunt (Reg. No. 0008951)Assistant City SolicitorE-mail: [email protected] Dial: 216-928-2935Aimee W. Lane (Reg. No. 0071392)E-mail: [email protected] Dial: 216-928-2985

WALTER & HAVERFIELD LLPThe Tower at Erieview1301 East Ninth Street, Suite 3500Cleveland, OH 44114-1821216.781.1212Fax: 216.575.0911

Atrorneysfor Plaintiff City of Hudson, Ohio

487137-1 5

Kc>e'f Z-C , '^ RdF'e SS

WATER LINE EASEMENT AGREEMENT

S WA EASEMENT AGREEMENT ("Easement") is made and entered into asof the y of^L , 2006, by and between ARTB?UR J. STOKES,1It,EXECUTOROF THE ESTATE ON HELEN M. STOKES by the power cohferred by'tlie deeadent's Last Will andTestamenY and the Sunutiit County (Oluo) Probate Couri m Case 2005 ES 00473, filed Apri120, 2005 andDOROTHY S. LIT'fLE, a single womah (qollectively the "Grantors"), and yVQ.LIAM E. VAGAS andDEIIRA A. VAGAS, husband end wife (collectively the "Grantees').

Recitals:

A. Grantors are the owners of that certain real property located in the City of Hudson,County of Sunvnit, State of Ohio, and more particularly identified in the deed recorded in Volume 7358,Pages 751-758 of the Summit County Records (Parcel No. 32-01646) ("Grantors' Property").

L ItU1oo 1^olODfdpcB. Otantees are the owners of that certain real property located contiguous to Grantors'

Property across Stokes Lane, which property is more particularly identified in the deed recorded asInstrument No. 54814533 of the Summit County Records (Parcel No. 32-01527)^("Grantees' Property").

Ift10DDj;0y.Ot3000C. Grantors desire to grant to Grantees and Grantees desire to obtain front Orantors a non-

exclusive water line easement within the Easement Area (as defined herein), upon the terms andconditions contained herein.

NOW, THEREFORE, in consideration of the sum of Ten Dollars (S10.00) paid by the Granteesand other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,the parties hereby agree as follows:

I. Water Line Easement. Grantors hereby grant, give and convey to Gtantees, for thebenefit of Grantees' property, a non<xclusive easement to install, repair, maintain, replace, opeeateand/or use one (1) portable water line located under and across that certain pordon of Grantors' Propertymore particularly described on Eihibit A and shown on Exbibit B attached hereto ("Easoment Area").The Grantors reserve the right to tap into said water line to serve Grentors' Property and to use theEasement Area for any purposes not inconsistent with the rights granted by this Easement, including theright to conslrnct ddveways, sidewalks, surface roads and similar improvements.

2. InatallatiorJMaintenance. The Orantees shall be responsible for all costs associated withthe installation, maintenance, repair and/or replacement of the water line. The water line shall be keptunderground in accordance with applicable ordinances, codes and regulations. To the extent thatGrantees' installation or maintenance requires the removal of landscaping and/or other improvemerttswithin the Easement Area, Granteea shall minimize all dantage and removal to the extent possible. Allimprovements moved or damaged by the Grantees shall be replaced or repaired by the Gmntees; at theirsole cost and expense, to the same or similar condition that existed ptior to their removal and/or damage.All maintenance, repair and replacentent shall be acconiplished in a manner to keep the same in a goodand safe condition and not to inhibit Grantors' use of the Easement Area unless otherwise agreed to inadvance by the parties. If the Grantees fail to keep the Easement Area in a good and safe condition, theGrantors nwy notify the Grantees of the nmintenanoe, repair and replaoement necessary, and if theGrantees fail to commence the necessary maintenance, repair or replacetnent within thirty (30) days afterreceipt of written notice &om Orantors, the Gnmtors shall have the right to perfotm the ntaintenance,repair and/or replacement and submit the cost to the Orantees for payment. The Grantors further grantunto Grantees the right to make reasonable temporary use of the property adjacent to the Easement Area

EXHIBITA

^^^^^^^^^^^^^^^^^111 ^^^l u6 i"I

during installation, maintenance, repair or replacement, provided that Grantees shali endeavor tominimize the extent of use of Grantors' Property and shall repair and replace any damaged landscaping tothe same or similar condition as existed prior tothe removal or damage. Except in the case of anemergency, the Grantees shall provide Grantors with at least three (3) days written notice prior to anyentry on Grantors' Property to perform such maintenance or repair to the water line.

Notwithstanding the foregoing, in the event that the Grantors elect to tap into the water line as setforth in Section 1 above, the users of the water line shall be responsible for all maintenance, repair and/orreplacements costs associated with the water line from the tap-in point to State Route 91 (Darrow Road)thereafter in proportion to the number of users. For exantple, should there be two users of the water lineeach user will be tosponsible for one-half (1/2) of all maintenance, repair and/or replacements costs,however, in the event that there are three users of the water line each user will be responsible for one-third(1/3) of all maintenance, repair and/or replacements costs. Before performing any repairs, maintenance orreplacements, the user intending to nutke the same shall notify the other users in writing of this intentionand of the estimated cost to complete the repairs, maintenance or replacements. The notice may bewaived if the other users agree to pay that user's share of the cost of repair, maintenance or replacements.Failure of the other users to object by giving written notice within ten (10) days after receipt of the firstnotice shall be deernod approval of the proposed repairs, maintenance or replacements and an agreementto pay their proportionate share of the estimated costs. If objection is made by giving written noticewithin the ten (10) day period, the user intending to make the repairs, maintenance or replacements maynevertheless proceed with the repairs, maintenance or replacements at that user's expense. However, nouser shall unteasonably withhold approval and agreement to pay for the'v proportionate share of the costof the requested repairs, maintenance or replacements. A user unreasonably withholding approval shallbe liable to reimburse the other users for their proportionate share of the costs of the repairs, maintenanceor replacements plus all costs incurred in collecting the same. It shall not be unreasonable for one user toobject to repairs, rrmintenance or replacements caused by the negligent or wrongful actions of the anotheruser. Grantors shall be solely responsible, at their sole expense, for the maintenance, repair andreplacement of their water line and related facilities up to tap-in point and including the connectionapparatus.

3. Building Restriction. The parties agree that no buildings or other structures (exceptingdriveways, sidewalks, surface roads and sin»lar itnprovemcnts) shall be constructed on the EasementArea by the Crrentors or Grantees.

4. $gl^og. Gtantors reserve tho right to relocate and/or remove Gtantees' water line outof the Easement Area. Grantors shall pay all costs associated with the relocation and/or removal ofGrantees' water line out of kte Easement Area. Notwithstanding the above, if the water line is removed

i by the Grantors, the Grantors shall provide an altemative means to provide water to Grantees' Property, atGrantors' sole expense. The parties agree to reasonably cooperate with each other and execute anynecessary documents to reflect said change in location of the Easement Area and the water line acrossGrantors' Property.

5. Miscellaneous. The words "Grantors" and "Grantees" shall include all heirs, executont,administratives, successors and assigns, as the case may be, including, but not limited to, all futureowners of the Grantors' Property and the Grantees' Property, it being intended that this easement shallrun with the lands benefited and burdened. Upon the tranafer of the interest of the parties in the Grantors'Property or Orantees' Property, the suecessor/transferee shall be responsible for the obligations hereunderand the transferor shall have no responsibility thereafler. This Easement shall be construed in accordancewith Ohio law and shall not be amended or modified unless in writing executed by both parties andrecorded in the public records of Sununit County, Ohio.

1295391 mujiiorniiurn ^g3u^JNn A t^, Orrrf FJawt Orf^w^

rT'aw, n t^,.r. ew^us t.i. M t o^r,NPli^^^^^^^i ^%z^;

Gtantees join in the execution of this Easement to acknowledge Otaatees' acceptance of the termsand conditions of this Easement relating to the Easetnent Area.

IN WIINESS R'HEREOF, the psrties have executed this Easement as of the day and year firetwtitten aboxe.

GRAINTO$8:

ARTMJR . STOtLES,. l, EXECUTOR OFTHE E8'l'ATEOF HEI.EN M. STOKES

DOHOTHY S.iL1TTI.E

IN TESTIMONY WHEREOF, I have hercanto setRy hand and seat as of this 9^" day ofM4.'rH .2006.

Notazy FublicPrint Name:

1293391 3

AG981T 0. RR1mS, ^ LM

^ ^ ^ m

AOBFJtT D. PIMLLIPS, Anomey atl.swNoWyMdlic • ghts oix Wso

* dpl^Sastl s Nt 09l1.0.lce

3

STATE OF OHIO )) SS:

COUNTY OF SUMMTf )

BEFORE ME, a Notary Public in and for said county and state, personally appeated ARTB?UR J.STOKES, JR, EXECUTOR OF THE FSTATE OF BELEN M. STOKES, who acimowledged ahat hedid execute the foregoing insbument on behalf of said eatate and that the satne is his free act and deed.

IN TESTIMONY WHEREOF, I have heteunto set my hand and seal as of this 't' day of/t 14^t t 1 120.06.

STATE OF OHIO

t:OUN'TY OF SUMMtf) SS:)

• •^^ k^ ^.^ MY dtM ^ I147 D9pR C"

BEFORE ME, a Notary Public in and for said oounty and state, personally appeared DOROTHYS. LIITLE, who acknowledged that sbe did execute the foregoing insnument and that the same is herfree act and deed.

GRANTEES:

WiI.LIAM E. VA A$

^a va ^^--DEBRA A. VAGAS

STATE OF OHIO

COUNTY OF SfIMMiT) SS:)

and the same is their frae aet and deed.

IN^ S^IMONY WHEREOF,1 have hereunto set my hand and seal2006. f l .. n ^ i}

NotaryFubiPriatNeme: V ^^^__

anrwn e4r.ti.n,m

^5 565.f^hn p ^^t., iuNlt Fl^M1 OtfiM^

This lnstrument Prepared by:John M. Coyne, ID, Esq.Itoetut & Andross, LPA222 South Main StrcetA1¢on, Ohio 44308

1295391

BEFORE ME, a Notary Public in and for said county and state, personally appeared K'ILLIAME. VAGAS and DEBRA A. VAGAS who aclmowledged that they did execute the foregoing instnunent

4

January 17, 2006

Legal Descriptionfor

25' Utility Easement

Situated in the City of Hudson, County of Summit, and State ofOhio and known as being part of lot 45 formerly Hudson Township andniore fully boundad and described as'followe:

oommencing for riforence at the intersection of the centerlineof South Main St. (Route 91, 66.00' wide) and the centerline ofRoute 303, which intersection is also the Northeast corner of saidlot 45, thence S 00•05'00" W, along the centerline of said SouthMain St., a distance of ig63.93' to the centerline of a privatedrive Known as Stokes Lane (50.00' wide) and the Place of Beginningfor the easement herein described;

Thence S 00°05'00" W, along the centerline of South Main St.,a distance of 26.21' to a point;

Thence S 72935'00" W, along the South tine of said StokesLane, a distance of 102.96' to an angle point in said South line;

Thence N 89939'20" W, along the South line of said StokesLane, a distance of 518.80' to a point;

Thence N 00020'40" E, a distance of 25.00' to the centerlineof said Stokes Lane;

Thence S 89039' 20" E, along the center l ine af said StokesLane, a distance of 574.89' to an angle point in said centerline ofStokes Lane;

Thence N 72°35'00" E, along the centerline of said StokesLane, a distance of 106.94' to the Place of Beginnins asdetermined by Ronald L. Farris, Registered Surveyor #6970 inJanuary of 2006 from information on deed recorded with reception #54814533 of the Summit County Records.

The basis of bearings for this description is S 00°05'00" W,the bearing given for the canterline of South Main St. in deedrecorded with reception # 54814533 of the Summit Cour,ty Record ofDeeds.

This description intends to describe the Southerly 25.00' ofStokes Lane between South Main St. and the West line of parceldescribed in dead recordpd with reception iF 54814533.

vZel6WIA-1 .l(pNNn•YM.'t

c...'^^ j' R01rrALD ^ ' n

/^ ^ I I¢ 1• 3 `7

rt O qtP.ANSFER NOT NECESSARY

SEC. 31 9.202 REV. CODE COM IED WITh G%,¢,T ^.• •^Pw,9yE^^^`r'+viyiiwwNOo^

'

APP"li"I'30diphmn

5-1-06Cons ideratbn TRANSFER NOT NECESSARY

JOHN 0. )ONOFRIO Bp ^-_. ^! --- John A. Donotrio, Fiscal OfficerFiscal uty Piscal Otlker

No. a pa9es

5

Exhibit B

[Easement Area]

e

U.

YO•oY 4"TJ$o Iw.ri itxxngt'• M!$0! ai^r

ssset£ss

,OPYMaistrod & Loepp,

Limited3580 Davow Road

Stow, OH 44224

(330) 688-1806(330) 688-1103 Fax

DIAtJA ZAL.ESKI

100oH0V28 AM11^' 52

SUMMi'T ^. ;;CLERK Or CuURTS


vs.

WILLIAM E. VAGAS, et al.

Defendants

JUDGE: BOND

ANSWER

Now come the Defendants, by and through their counsel, and hereby answer the

Complaint as follows:

1. The Defendants admit the allegations contained in paragraph one of the

Complaint.

2. The Defendants admit the allegations contained in paragraph two of the

Complaint.

3. The Defendants admit the allegations contained in paragraph three of the

Complaint.

4. Paragraph number four of the Complaint does not require a response.

5. On information and belief, the Defendants believe that the information

contained in paragraph number 5 of the Complaint is accurate.

6. Section 10 of the Rules and Regulations speaks for itself. The Defendants

deny the balance of the allegations contained in paragraph number 6 of the

Complaint.

1

CITY OF HUDSON, OHIO

Plaintiff

CASE NO. 2006-11-7340

EXHIBIT

AI

10PY

i

7. Section 1040.07 of the Codified Ordinances of the City of Hudson speaks

for itself. The Defendants deny the balance of the allegations contained in

paragraph number 7 of the Complaint.

8. The Defendants are without information sufficient as to form a belief as

to the truth or falsity of the allegations contained in paragraph number eight

of the Complaint, and therefore deny same.

9. The Defendants are without information sufficient as to form a belief as to

the truth or falsity of the allegations contained in paragraph number nine of

the Complaint, and therefore deny same.

10. The Defendants admit to receiving a letter from the City of Hudson. The

Defendants deny the balance of the allegations contained in paragraph 10 of

the Complaint.

11. The Defendants admit that they informed the City of Hudson that they were

attempting to obtain an easement for the installation of a new water line.

The Defendants deny the balance of the allegations contained in paragraph

number 11 of the Complaint.

12. The Defendants admit that they were advised by the City that they had a

certain amount of time to complete the project. The Defendants deny the

balance of the allegations contained in paragraph number 12 of the

Complaint.

13. The Defendants admit that a certain easement agreement has been recorded.

The Defendants deny the balance of the allegations contained in paragraph

number 13 of the Complaint.

14. The Defendants admit that they have not discontinued their use of the water

lien which they have been using, uninterrupted, from the date that they

2

owned the property. The Defendants deny the balance of the allegations

contained in paragraph number 14 of the Complaint.

15. Paragraph number 15 of the Complaint requires no response.

16. The Defendants deny the allegations contained in paragraph number 16 of

the Complaint.

17. Paragraph number 17 of the Complaint does not require a response.


the Complaint.


the Complaint.

20. The Defendants deny all allegations not specifically admitted herein.

FIRST AFFIRMATIVE DEFENSE

21. Plaintiffs Complaint fails to state a claim upon which relief can be gianted.

SECOND AFFIRMATIVE DEFENSE

22. Plaintiff s Complaint fails for the fact that the Plaintiff has failed to join

a necessary and indispensable party.

THIRD AFFIRMATIVE DEFENSE

23. Plaintiff's Complaint is barred by the doctrines of laches, waiver, and/or

estoppel.

FOURTH AFFIRMATIVE DEFENSE

24. Plaintiffs claims are barred by the applicable statute of limitations.

FIFTH AFFIRMATIVE DEFENSE

25. Plaintiff s claims are barred by the applicable statute of repose.

SIXTH AFFIRMATIVE DEFENSE

26. Plaintiff s claims are barred by the Plaintiff's own actions.

SEVENTH AFFIRMATIVE DEFENSE

3

27. Plaintiff s claims are barred by the negligence or other violation of

law by the neighbor.

WHEREFORE, the Defendants pray that this case be dismissed with prejudice,

and that all costs and legal fees be assessed against the Plaintiff.

TROS & LOEPP, LTD.

MAS C. LOEPP (#0046629)80 Darrow Road

tow, Ohio 44224

____ t11e4pectfully submitted,

(330) 688-0560Fa (330) 688-1103tloep bizlawfix.comAttorne or Defendants

CERTIFICATE OF SERVICE

A copy of the foregoing documents was sent on NovemberU.S. Mail upon:

Charles T. RiehlR. Todd HuntAimee W. LaneWalter & Haverfield LLPThe Tower At Erieview1301 East Ninth St., Ste 3500Cleveland, OH 441 14-1 82 1

via regular

THOMAS C. LOEPP (#0046629)Attorney for Defendants

4

COPY

C1"!

7001 f1ftR S 4 kF11^lh COURT OF COMMON PLEASSUMMIT COUNTY, OHIO

CITY OF F^^l$^r^Tj ; CASE NO. 2006-11-7340

Plaintiff, ) JUDGE: BOND

SUPA4i'i C^;,:iVi`(

vs.

WILLIAM E. VAGAS, et al.,

DEFENDANTS' RESPONSES TOPLAINTIFF'S FIRST SET OFINTERROGATORIES AND REOUESTFOR PRODUCTION OF DOCUMENTSAND REOUEST FOR ADMISSIONS

Defendants.

Pursuant to Rules 33, 34, and 36 of the Ohio Rules of Civil Procedure, Plaintiff City of

Hudson, Ohio ("City") by and through undersigned counsel, hereby serve the following First Set

of Interrogatories and Request for Production of Documents and Request for Admissions on

Defendants William E. Vagas and Debra A. Vagas ("Defendants").

Pursuant to Rule 33 of the Ohio Rules of Civil Procedure, written Answers or Objections

to these Interrogatories are to be served on the undersigned counsel for Plaintiff within twenty-

eight (28) days after service hereof. Furthermore, Plaintiff reminds Defendants that they have a

duty to conduct a reasonable investigation when necessary to answer the Interrogatories.

Furthermore, Defendants have a duty to answer to the fullest extent possible, despite the fact that

it may be impossible to provide all requested information.

Pursuant to Rule 34 of the Ohio Rules of Civil Procedure, Defendants shall produce, give

access to, and make available for copying and inspection to Plaintiff or its duly authorized

attorneys or agents, any and all of the documents identified in the attached Requests for

Production of Documents. It is requested that the aforesaid production, examination, and

copying of documents commance at the offices of Walter & Haverfield, 1301 East 9th Street,

i

EXHIBR

s 3

le

Suite 3500, Cleveland, Ohio 44114, within twenty-eight (28) days after service hereof, and

continue thereafter until concluded; or in lieu thereof, Defendants may attach copies of said

documents to its Answers to these Discovery Requests.

Pursuant to Rule 36 of the Ohio Rules.of Civil Procedure, written Answers or Objections

to these Requests for Admission are to be served on the undersigned counsel for Plaintiff within

twenty-eight (28) days after service hereof, or the matter will be deemed admitted.

INSTRUCTIONS AND DEFINITIONS

1. These Discovery Requests are continuing in nature. Any newly discovered oradditional information responsive to these Discovery Requests shall be supplied immediatelyupon any such matter coming to the attention of Defendants or their counsel. Defendants shallfurther provide, by way of supplementary compliance herewith, such additional information anddocuments as Defendants, or any other person acting in their behalf, may hereafter obtain, whichwill augment the infot-ma6on and documents provided in response to the Discovery Requestsbelow. Such additional information and documents are to be produced at the offices ofPlaintill"s counsel in Cleveland, Ohio promptly after receipt thereof.

2. All information requested herein is to be set forth if it or documents containing itare in the possession of, control of, or are available or accessible to Defendants or their counsel.All documents requested herein are to be produced if they are ih the custody, possession orcontrol of, or are available or accessible to, Defendants. Further, if Defendants knows thatdocuments responsive to any of these Discovery Requests are in the custody, possession, orcontrol of a third person, Defendants shall identify the documents and their custodian. Whenthese Discovery Requests call for a document which once was but is no longer in the possessionor control of Defendants, its present location and custodian, if known, or its last known locationand custodian shall be identified.

3. If any information called for by these Discovery Requests is not available oraccessible in the full detail requested, these Discovery Requests require that Defendants set forthinformation related to the subject matter of the request in as detailed a manner as is available oraccessible, including, where specific information is not available or accessible, estimates,describing each method by which any estimate is made.

4. If any information called for by these Discovery Requests is withheld on the basisof a claim of privilege, the nature of the information for which privilege is claimed shall be setforth together with the type of privilege claimed and a statement of all circumstances upon whichDefendants will rely to support such claim of privilege. If any documents called for by theseDiscovery Requests are withheld on the basis of a claim of privilege, the nature of suchdocuments being withheld, the nature of the claimed privilege and the nature of the informationwith respect to which it is claimed shall be set forth.

2495761-1

COPYI I

5. Where the context herein makes it appropriate, each singular word shall includeits plural and each plural word shall include its singular. "Any" as well as "of' shall beconstrued either disjunctively or conjunctively as necessary to bring within the scope of theseInterrogatories all responses which nught otherwise be construed to be outside its scope, Each ofthe following words includes the meaning of every other wordi "each", "every", "all", and "any".The present tense shall be construed to include the past tense, the past tense shall be construed toinclude the present tense. The masculine shall be construed in the generic sense,

6. For purposes of these Discovery Requests, the following terms shall have themeanings set forth below:

A. The terms "Discovery," "Discovery Requests," and/or "Requests" shall-mean the within Interrogatories andlor Requests for Production of Documents and/orRequests for Admission.

B. The term "Document" shall mean any and all information in tangibleform, of any nature whatsoever, including the originals and all non-identical copiesthereof, in your possession, custody or control, regardless of where located, and shallinclude, without limiting the generality of the foregoing, all letters, telegrams, telexes,teletypes, correspondence, contracts, drafts, agreements, insurance policies, notes to files,reports, memoranda, mechanical and electronic recordings, tapes, or transcripts,information stored in computers or other data storage or processing equipment translatedor translatable into usable form, calendar or diary entries, memoranda of conversations,telephonic or otherwise, and of meetings or conferences, studies, reports, interoffice andintraoffice communications, listings, bulletins, circulars, statements, manuals, summaries,newsletters, cqmpilations, agendas, charts, graphs, propositions, offers, articles,announcements, newspaper clippings, books, records, .cables, acknowledgments, orders,bills, opinions, certificates, and all copies of documents as hereinbefore defined bywhatever means made.

If a document has been prepared in several copies, or additional copies have beenmade, and the copies are not identical (or which by reason of subsequent modification orrevision of a copy by the addition of notations, or other modifications, including, but notlimited to underlining, showing of blind copies, crossing out, initialing, comments,signatures, documents clipped or stapled thereto, etc., are no longer identical) each non-identical copy is a separate "document" for the purposes of this Request.

C. The terms "description," "describe," `'identification," "identify," or"identity" shall mean with respect to any erson to state, to the extent known:

The person's full name;The person's present or last known address;Present or last known home telephone number;Present or last known business address;Present or last known business telephone number;

I

495761•13

(6)(7)(8)

Present or last known employer or affiliation;Present or last known job title;Present or last known job description.

Once any person has been so described or identified, he or it may thereafter be referred toby name alone.

D. The terms "identification," "identify," "description," or "describe" shallmean, when used in reference to an oial or written oommunication of any naturewhatsoever, to set forth, to the `extent known:

(1) The identify of the person by whom, and each person to whom,each such communication was made and all persons present at thetime;The date it was made;The place at which it was made;The means by which it was made;The substance thereof; andA description of each document reflecting and/or relating to any ofthe above.

Once any such oral or written communication has been so described or identified, it maybe referred to by a distinguishing description.

E. The term "person" shall mean and include natural persons, corporations,trusts, partners:lips, business ventures, governmental or public or quasi-public entities,citizens' groups or associations and any other firm or organization, association or busi-ness entity.

F. The terms "employee," "agent," "consultant" or "representative" shallmean any personserving, acting or being in one of those capacities at a relevant timeeven though such person is no longer acting in such capacity.

G. The term "Plaintiff," shall mean the Plaintiff in this lawsuit, the City ofHudson, Ohio, and any and all agents and/or representatives of Plaintiff.

H. For the purposes of these discovery requests only, the term "Defendants,""you," or "your" shall mean the defendants in this lawsuit, William E. Vagas and DebraA. Vagas.

I. The terms "relate," "relating," or "relative to" shall mean, withoutlimitation: referring to, relating to, embodying, connected with, commenting on,responding to, supporting, showing, describing, analyzing, criticizing, reflecting orconstituting.

4495761-I

COPY

J. The term "this lawsuit" shall mean that certain lawsuit pending in theCourt of Common Pleas for Summit County, Ohio, captioned City of Hudson, Qhio v,William E. Vagas, et al., case number 2006-11-7340.

K. The term "Complaint" refers to the Complaint filed in this lawsuit..

DISCOVERY REOUESTS

1. INTERROGATORIES

Interrogatory No. 1: Identify each individual who participated in answering theseInterrogatories.

Answer:

William & Debra Vagas1 Stokes LaneHudson, OH 44236

Interrogatory No. 2: Identify each person whom Defendants expect to call as a non-expertwitness, at trial or by deposition, and state the subject matter on which each witness is expectedto testify.

Answer:

Objection. The information sought is protected by the Attorney Work Product Doctrine as wellas the Attomey-Client Privilege.

Interro¢atorv No. 3: Identify each person whom Defendants expect to call as an expert witness,at trial or by deposition, and state the subject matter on which each witness is expected to testify.

Answer:

The Defendants have not yet retained an expert witness. They reserve the right to do so at a laterdate.

Interrogatory No. 4: When did you purchase the home at your current address, 1 Stokes Lane,Hudson, Ohio, 44236, also known as 304 Stokes Lane, Hudson, Ohio 44236?

Answer:

May 31, 2001

495761•15

Interroaatory No. 5: When did take up residence at your current address, 1 Stokes Lane,Hudson, Ohio, 44236, also known as 304 Stokes Lane, Hudson, Ohio 44236?

Answer:

App: 1996

Interroeatorv Noc 6: When was your hunie originally built?

Answer

1892

Interroeatorv No. 7: When was the home of your neighbors, Mr. and Mrs. Brian Daley, locatedat 132 S. Main Street, Hudson, Ohio 44236, originally built?

Answer:

Circa 1941

Interrosatorv No. 8: When and from whom did you first learn that the water line that providedwater service to your house was located on the property of your neighbors, Mr. and Mrs. Brian

Daley?

Answer:

With a conversation with Brian Daley

Interroeatorv No. 9: Did you at any point in time receive any quotes for work to construct analternate water line on your property and if so: a) when did you receive those quotes, b) whoprovided those quotes, and c) what were the prices quoted?

Answer•

No formal quotes

Nothing in writing

6495761-1

COPY

Interroeatorv No. 10: Did you ever attempt to negotiate the right to a tie-in to the water line onyour property and if so, when and with whom?

Answ r:

No

Interro¢atorv No. 11: Please3ist all individuals you have discussed the water line dispute with,including the group, company, or agency each individual was associated with (if applicabl8) andthe substance of the discussion.

Answer:

Everybody, friends, neighbors, etc.

Interroeatorv No. 12: Are you receiving or have you been offered financial support from anyindividual or group in relation to this lawsuit and if so, please list each individual or group.

Answer:

No

Interroeatorv No. 13: Has your water service ever been interrupted as a result of a problemwith Mr. and Mrs. Daley's water line? If so, when?

Answer:

Yes, the city shut off our water line to work on Daleys home.

IL REQUESTS FOR ADMISSIONS

Request for Admission No. 1: Admit that your house receives water from a tie-in to a waterline and meter that is located on the property of your neighbors, Mr. and Mrs. Daley.

Answer:

Deny. Waterline runs to our home. Daleys are tie in. we have our own meter

495761•17

Reauest for Admission No. 2: Admit that Section 10 of the City's Rules and Regulations for theoperation of the City's Water Department states: "No single service shall service more than onemeter except in special cases which must be approved by the Superintendent of the WaterDepartment. In a case where one or more properties are serviced from the same service line,each service must have an independent Curb Valve."

Anawer:

Admit

Reauest for Admission No. 3: Admit that the Superintendent ofthe Water Department hasnever approved of the method of which your water is received, via a tie-in to your neighbor'sproperty.

Answer:

Deny. Unknown, city has no information on waterline. How would they know if there was anagreement? And unknown Superintendent of the Water Department.

Reauest for Admission No. 4: Admit that in January of 2006, you were notified by the City thatyour use of the water line servicing the Daley's residence violated Section 10 of the Rules andRegulations of the Water Department and also advised you that you needed to discontinue use ofthat water line.

Answer:

Admit. Asked city for documentation of ownership of curb valve

Reauest for Admission No. 5: Admit that, in February 2006, you informed the City that youwere attempting to obtain an easement for the installation of a new water line to service yourresidence and that you would have the project completed by the ender of summer, 2006.

Answer:

Admit

Request for Admission No. 6: Admit that you recorded an easement to install a new water lineacross a portion of the estate of Arthur J. Stokes, Executor of the Estate of Helen M. Stokes onMay 1, 2006.

84957G1•1

COPY

Answer:

Admit

Request for Admission No. 7: Admit that you have not discontinued your use of the Daley'swater line.

Answer:

Deny. It is not Daley's water lien.

Reauest for Admission No. 8: Admit that you have not constructed a new water line to serviceyour residence.

Answer:

Deny. Already have a water line to residence.

Reauest for Admission No. 9: Admit that you have previously informed the City that youwould construct a new water line to service your residence.

Answer:

Objection, the request for admission is irrelevant and is not calculated to lead to admissibleevidence. Furthermore, such is barred by the Rules of Civil Procedute with respect to settlementnegotiations. Without waiving same, yes.

III. REQUEST FOR PRODUCTION OF DOCUMENTS

Request No. 1: Please produce any and all documents that relate in any way to your responsesto the above Interrogatories.

Answer:

None

9495761-I

As to objections,MAISTROS & LOEPP, L

. THOMAS C. LOEYIj'(#0046629)3580 Darrow RoStow, Ohio 4422(330) 688-0560Attomey for Plaintiffs

ROS & LOEPP, LTD.tfully submitted,

S C. LOEPP (#0046629)3580 Darrow RoadStow, Ohio 44224(330) 688-0560Fax (330) [email protected] for Defendants


A copy of the foregoing documents was sent on the 41 3 of March, 2007 via regularU.S. Mail upon:

Charles T. Riehl (Reg. No. 0010971)Jonathan R. Goodman (Reg. No. 0078926)WALTER & HAVERFIELD LLPThe Tower at Erieview1301 East Ninth Street, Suite 350Cleveland, OH 44114-1821

495761•1

THOMAS C. LOEPP7W046629)Attomey for Defendants

8

COPYMaistros & Loepp,

Limi[ed .3580barrow RoadStow, OH 44224(330) 688-1806

(330) 688-1103 Fex

DAVIEC U. HORRI(',,W2001 JUPr 14 4N ^: 29

SUIV,'ui,'( COGLERr( OE C' p R S


CITY OF HUDSON, OHIO ) CASE NO. 2006-11-7340)

) JUDGE TEODOSIOPlaintiff )

Vs, MOTION TO DISMISSjFOR FAILURE TO JOIIfi

WILLIAM E. VAGAS, et al. ) NECESSARY PARTIES)

Defendants )*k*****k***********kkk*******k#*

Now come the Defendants, by and through their counsel, and hereby movi: -'.s

Court to dismiss the within Complaint for failure to join necessary parties. As r:: :: ste

forth herein, Brian and Raija Daley are necessary and indispensable parties.

T C. LOEPP (#0046629)3580 Darrow RoadStow, Ohio 44224(330) 688-0560Fax (330) [email protected] for Defendants

i1 EXHIBIT

^

iOPY

MEMORANDUM IN SUPPORT

The within Complaint was filed by the City of Hudson Ohio against the

Defendants, William E. And Debra A. Vagas. In that Complaint, the City of Huds :--

alleges that Mr. & Mrs. Vagas have violated Section 10 of the Rules and Regulat:c -: fbr

the operation of the City's Water Department in that the water line servicing the V ^_ _es

residence traverses under the structure of the Daleys' house. Furthermore, the city '::s

teamed that this same water line is allegedly fed from a tie-in to the water line an^. :.:er

servicing the Daleys' residence.

In its Complaint, the City claims that should the Daleys' water service be s`. = o.'.f,

the Vagas' residence would also be without water.

The City of Hudson claims that there is now altemate water service availz:::. the

Vagas' residence, and that the Vagas must bear the cost and responsibility of hoe:A'. ce up to

this altemate water line.

Pursuant to Civil Rule 57 and R.C. 2721.03, the City of Hudson claims th. :' s

entitled to a declaration as to the validity of its rules and regulations of the City's

Department and also that Mr. and Mrs. Vagas must comply with this alleged locE'. _ 'th

and safety regulation.

What is curious is that the City has failed to join the Daleys as parties to ::: ::. :;..atter.

R.C. 2721.12 provides, in pertinent part:

"(A) Subject to division (B) of this section, when declaratory relief is sou ^under this chapter in an action or proceeding, all persons who have ®rclaim any interest that would be affected by the declaration shalg bemade parties to the action or proceeding. Except as provided in divisio:(B) of this section, a declaration shall not prejudice the rights of personswho are not made parties to the action or proceeding. In any action orproceeding that involves the validity of a municipal ordinance or franchis: ,the municipal corporation shall be made a party and shall be heard, and,'_'any statute or the ordinance or franchise is alleged to be unconstitutional,the attorney general also shall be served with a copy of the complaint in 1:- :action or proceeding and shall be heard. In any action or proceeding that

2

involves the validity of a township resolution, the township shall be made E.party and shall be heard.

The absence of a necessary party constitutes a jurisdictional defect which p-c:::_des

a Court of Common Pleas from properly rendering a declaratory judgment. Zanes i. 'rr v.

Zanesville Canal & Mfg. Co. (1953), 159 Ohio St. 203.

Obviously, a determination as to whether the Vagas can continue to use th: ^tater

line, and whether they have to install a new tie-in, and whether their water line is

improperly crossing the Daleys' property, under the Daleys' residence, clearly a5c-;':ze

Daleys. It would appear that the only reason the Daleys have not been joined as ps -is

because of Mr. Daley's status with the City of Hudson. Mr. Daley is the Preside;-!' :'ity

Counsel for the City ofHudson.

At trial, the facts will come out that the Daleys are complaining that the V;.l rs'

water line runs underneath the Daleys' home. However, that is because the Daley ;' -::me

contains an addition which was built long after the Vagas' water line was laid. T`- e.'. i.s, the

Daleys' addition was built over top of the Vagas' water line. Apparently, no one :^:: ght to

"call before you dig" when the addition to the Daleys' home was built.

Any judgment made by this Court will affect the Daleys, and consequent:.:i,-::y

must be joined as necessary parties. Alternatively, if the City of Hudson continuc! °efuse

to join the Daleys as necessary and indispensable parties, then the Vagas would rr :.::st that

this Court dismiss, with prejudice, the within Complaint.

3

^OPY


THOMPt$ C. LOEPP (#0046629)

3580 Darrow Road

Stow, Ohio 44224

(330) 688-0560

Fax (330) 688-1103

[email protected]

Attorney for Defendants


A copy of the foregoing documents was sent on June 13, 2007 via regular .; :. Mail

i

upon:

Charles T. Riehl

R. Todd Hunt

Aimee W. Lane

Walter & Haverfield LLP

The Tower At Erieview

1301 East Ninth St., Ste 3500

Cleveland, OH 44114-1821

THOMAS,C. LOEPP (#0046629)

Attomey for Defendants

4

COPY

CLERK OF Cp(^j6c;ff, JUDGE: THOMAS TEODOSIO

DAIdfEt M. HA*COURT OF COMMON PLEAS

2007 ,JUN 22 4M 6. 30MMIT COUNTY, OHIO

CITY OF HUDV, hQIIlQ3i^^ ) CASE NO. CV 2006-11-7340

u8.


Defendants.

PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TODISMISS FOR FAILURE TO JOIN NECESSARY PARTIES

Now comes Plaintiff, by and through counsel, and respectfully submits its opposition to

Defendants' Motion to Dismiss for Failure to Join Necessary Parties ("Defendants' Motion").

Contrary to their allegations, Defendants are the only necessary parties at issue in this case, as

the declaratory judgment action does not legally affect any other party. Further, based on

Defendants' previous assurances that they would be responsible for obtaining a new tie-in for an

altemative water line, they are the only parties legally impacted by this action. As discussed

more fully below, Plaintiff requests that Defendants' Motion be denied.

1. BACKGROUND FACTS

In the fall of 2005, Plaintiff became aware that the water line servicing Defendants'

residence is fed from a tie-in to the water line and meter servicing Defendants' neighbor's

residence. The water line servicing Defendants' residence traverses under the structure of

Defendants' neighbor's house (the Daleys). Plaintiff has no records of the Superintendent of the

Water Department approving water service to Defendants' residence in this matter.

EXHIBIT

5^_

OPY

Section 10 of the Rules and Regulations of Plaintiffs Water Department reads as

follows:


Section 1040.07 of the Codified Ordinances of the City of Hudson futher provides that:

The Manager may make and enforce such rules and regulations as may bedeemed necessary for the safe, economical and efficient management andprotection of the Municipal water system, for the construction and use ofwater lines and facilities, for connections to the water system, and for theregulation, collection, rebating and refunding of charges or rentals,provided that such rules and regulations are not in conflict with anyMunicipal ordinance. No person shall violate or fail to comply with anysuch rule or regulation.

In January of 2006, Plaintiff sent a letter to Defendants notifying them that their use of

the water line servicing their neighbor's residence violated Section 10 of the Rules and

Regulations of the Water Department and further advised Defendants that they needed to

discontinue their use of that water line (Exhibit A).

In February of 2006, Defendants told Plaintiff that they were attempting to obtain an

easement for the installation of a new water line to service their residence and that they expected

to have the project completed by the end of Summer 2006.

In July of 2006, Plaintiff advised Defendants that they had until the end of August, 2006

to complete the project. Alternate water service is now available to Defendants' residence. A

water line easement agreement recorded with the Summit County Fiscal Agent on May 1, 2006,

shows that Arthur J. Stokes, Jr, Executor of the Estate of Helen M. Stokes, granted Defendants

an easement to install a new water line across a portion of the Estate's property. As of this date,

506838•I2

IvOPY

Defendants have not discontinued their use of the water line servicing Defendants' neighbor's

home and have not constructed a new water line to service their residence.

III. LEGAL ARGUMENT

Ohio Revised Code ("R.C.") §2721.03 states, in pertinent part:

[A]ny person whose rights, status, or other legal relations are affected by a constitutionalprovisions, statute, rule as defined in section 119.01 of the Revised Code, municipalordinance, [or] township resolution ... may have determined any question of constructionor validity arising under the...rule, ordinance, resolution ... and obtain a declaration ofrights, status, or other legal relations under it.

Plaintiff correctly states that in declaratory judgment actions, R.C. §2721.12 provides that

"all persons who have or claim any interest that would be affected by the declaration shall be

made parties to the action or proceeding." However, as the Ohio Supreme Court has held, the

term "affected" does not include every party who may have an interest in the proceedings. In

Driscoll v. Austintown Associates (1975), 42 Ohio St. 2d 263, 273, the Court held that:

Counsel for defendant ... assert that `affected' has reference to one who is practicallyaffected rater than legally affected, and that as one can not be legally bound unless he is aparty it was contemplated that any one practically affected should be made a party.Although the question is new it is our judgment that the section is in accord with thegeneral policy of the law that only those persons who are legally affected are properparties to a lawsuit.

(emphasis added) (citing Schriber v. Sheet Metal & Roofers v. Shook (1940), 64 Ohio App. 276,

285).

In Driscoll, a zoning case, the Court held that surrounding property owners were not,

legally affected by the outcome of a declaratory judgment action attacking the constitutionality

of zoning regulation as it applied to a specific parcel of property; therefore, they were not

necessary parties to the action. Id. at 273. Similarly, in this case, the declaratory judgment

action by Plaintiff only seeks a declaration that Section 10 of the Rules and Regulations of the

City's Water Department is a valid exercise of the City's police power granted under Article

506838-I3

XVIII, Section 3 of the Ohio Constitution and, as a result, Defendants must comply with this

local health and safety regulation. No other party would be legally affected by this declaration,

as Defendants are the only parties in violation of the local rules. While Defendants' neighbors,

the Daleys, may have some practical interest in Defendants' compliance, such interest is not

enough to require them to be joined as parties in this case.

Further, Defendants have, on numerous occasions, made assurances that they would

remedy their violation. On September 16, 2005, Defendants wrote a letter to the Daleys stating

that "we will be removing ourselves from the waterline on your property." See September 16,

2005 letter (attached as Exhibit B). Again, on February 20, 2006, Defendants wrote a letter to

the undersigned, stating "we are in the process of working to correct this situation" and that "we

are doing our best to have this project completed by the end of Summer 2005..." See February

20, 2006 letter (attached as Exhibit C).

Based on the foregoing, because Defendants are the only parties legally affected by the

pending declaratory judgment action, Plaintiff respectfully requests that this Court deny

Defendants' Motion.

506878•1


Char'Tes T. Rie4tl (Reg. No. 0010971)City SolicitorE-mail: [email protected] Dial: 216-928-2895R. Todd Hunt (Reg. No. 0008951)Assistant City SolicitorE-mail: [email protected] Dial: 216-928-2935Aimee W. Lane (Reg. No. 0071392)E-mail: [email protected] Dial: 216-928-2985

4

WALTER & HAVERFIELD LLPThe Tower at Erieview1301 E. Ninth StreetSuite 3500Cleveland, OH 441 14-1 82 1(216) 781-1212 / Fax: (216) 575-0911

Attorneys for Plaintiff


The original and one (1) copy of the foregoing Opposition to Defendants' Motion to

Dismiss was sent by regular U.S. Mail, postage prepaid, this 97-- day of June, 2007 to:

Thomas C. Loepp, Esq.Maistros & Loepp. Ltd.

3580 Darrow RoadStow, Ohio 44224

Attorneyfor Defendant

506aJ8-1

One of the Attorn ys for Plaintiff

5

o^'Y^lter &^ Haverfield LLP

attorneys at lawCharles T. Rlehl

crkhl@wa/ferhau. cnm216.928.2895 dlrect line216.916.2334 dlrectfax

I

Mr. & Mrs. William Vagas1 Stokes LaneHudson, OH 44236

Dear Mr. & Mrs. Vagas:

January 19, 2006

Please be advised that the undersigned is the Law Director of the City of Hudson. I havebeen informed by Priscilla Blanchard, Director of Public Works of the City of Hudson, that thewater line which services your residence is fed from a tie-in to the service line which alsoservices your neighbor's property. I am further informed that theline which feeds your housetraverses under the structure of your neighbor's house. This situation creates a safety hazard forthe structural integrity of your neighbor's house as well as a potential problem for providingwater service to your house should service to your neighbor's house be somehow cut off.

The situation with your water line is in violation of Section 10 of the Rules andRegulations of Hudson's Water Department which provides:

"No single service shall service more than one meter except in specialcases which must be approved by the Superintendent of WaterDepartment. In a case where one or more properties are serviced from thesame service line, each service must have an independent Curb Valve."

It is my understanding that there is alternative service which is available to your property.Accordingly, we would request that you take all necessary steps to discontinue the same servicefrom your neighbor's line.

CTR:kawcc: Priscilla J. Blanchard, Director of Public Works

exMlBiTA

8om

The Tnwer at Erieview I 1301 East Ninth Street, Sulte 3500 I Clevelaiul. Ohio 44114-182146t728-t216.781.1212 Icl 1 216.575.0911 fax I wuvr.walierhavcoin

VIA CERTIFIED MAIL

September 16, 2005

Mr, & Mrs. Brian Daley132 S. Main St.Hudson, OH 44236

Dear Brian & Raya,

As was mentioned to Raya in a phone conversation with Debbie two weeks ago, we willbe removing ourselves from the waterline on your property. We will have our ownwaterline installed (we have no interest in digging a well). These are the necessary stepswe will be taking in order to protect ourselves from any further unknown liability by youor future homeowners of your property.

Step 1 Easement being drafted by our attomey (in process).Step 2 Obtain signatures on easement from Cook, Stokes & Little.Step 3 File easement with the countyStep 4 Have property surveyedStep 5 Contractors out to bid on workStep 6 Approved contractor to begin work

The above procedures will take time, as mentioned to Raya, so there is no need to contactus. We will contact you after the work has been completed so that you can remove usfrom your waterline. At that time we expect you to cap the existing waterline off, at yourexpense, on your propertv so not to damage our property.

Sincerely,

Bill and Debbie VagasI StokeS LaneHudson, OH 44236

cc: Dean S. HooverHoover Legal Associates230 N. Main St.Hudson, OH 44236

®

EXHIBITB

®

OPY

February 20, 2006

Mr. Charles T. RiehlWalter & HaverfieldThe Tower at Erieview1301 EastNinth Street, Suite 3500Cleveland, OH 44114-1821

Dear Mr. Riehl:

RECEIVED FEB 2 3 2006

In response to your letter dated January 19, 2006, as the Daleys and their attorney (Dean Hoover) wereinformed on numerous occasions, we are in the process of working to correct this situation. There areno "alternate" service options available to us as mentioned in your letter. As we have told the Daleysand their attomey, the waterline that passes in front of our property is owned by the Stokes/Cook/Littlefamilies and they have indicated to us that they will not allow us to tie into it because it is old and theydo not want any problems with it (Mr. Daley had also spoken to Patty Cook and was also made awareof this). The Daleys then told us to dig a well. We informed them that we have no interest in digginga well since city water is available to us. At that point our only option was to put our own waterline in,but we needed an easement from the Stokes/Cook/Little families in order to accomplish this since theyown the vacant lot across from our property that would give us access to the main waterline hookup on91. We have been working with our attorney since late Summer of 2005 to obtain an easement fromthe Stokes et al. Unfortunately, the property is in probate (Helen Stokds passed away in 2005) and theprocess is taking longer than normally would be expected. We have been informed by our attorneythat he is getting close to having the Stokes et al approving the easement. Once the signatures havebeen obtained and the easement has been recorded we will contact contractors to bid on the job, etc.We have no definitive timeline except that we are doing our best to have this project completed by theend of Summer 2005 (if we do not incur any additional snags).

We are still a little confused as to why Mr. Daley would involve you, as the Law Director of the Cityof Hudson, in his personal matter.

If you have any questions, please do not hesitate to contact us.

Sincerely,

Bill and Debbie VagasI Stokes LaneHudson, OH 44236(330-655-9813)

cc: Dean S. Hoover, Esq. (attomey for the Daleys)Hoover Legal Associates230 N. Main St.Hudson, OH 44236

Priscilla J. Blanchard, Director of Public Works EXHI®ITc C.

I

. .^.N•.'^.^M.i_ Pil.,

OPYMaistros & Loepp,

Limited .3580battawRoadStow, OH 442^^^l(330) 688-180

(330) 688-1103F6a^,U(

CL

. A4. HORR^CÂN

JL -3 îl 9a 25

duvllti CO'!^'TyR!^ OF COURTS



Plaintiffvs.

WILLIAM E. VAGAS, et a1.

Defendants

CASE NO. 2006-11-7340

JUDGE TEODOSIO

REPLY BRIEF IN SUPPORTOF MOTION TO DISMISSFOR FAILURE TO JOINNECESSARY PARTIES

**,rr*r<«rr.a^*^^â^*><•*^^+*r..a^*,t*^

Now come the Defendants, by and through their counsel, and hereby file the within

Reply Brief in further support of their Motion to Dismiss for Failure to Join Necessary Parties.

As more fully set forth herein, the City of Hudson has provided no valid basis for its refusal

to join the Daleys as necessary parties. Not having joined them as parties, and refusing to do

so, the claims against the Defendants must be dismissed.

In its response to the Motion to Dismiss, the City of Hudson claims that the Defendants

are the only necessary parties to this case, and that no other party will be legally affected by

a decision. Further, the City claims that "based on Defendants' previous assurances that they

would be responsible for obtaining a ncw tie-in for an alternative water line, they are the only

party legally impacted by this action."

This is not true.

As this Court can see, this dispute commenced when the City of Hudson and the

Daleys demanded of the Defendants that they install a new water line. Thereafter, after some

negotiations, the Defendants were convinced by the City of Hudson and by the Daleys that the

Defendants might be responsible for connecting to a new water line. At that time, the

1 EXHIBIT

^

I

F OPY

Defendants had not contacted counsel, and had not discovered that they had no liability,

whatsoever, and that they were not responsible for making the new connection.

Since that time, the Defendants have learned that here is no legal or equitable basis for

their being forced to establish a new water line. As such, they are defending the action brought

by the City of Hudson,

What this Court must keep in mind is that Mr. Daley is a Hudson Councilman-the

President of Council. As a Hudson Councilman, it appears that the City does not wish to

bring the Daleys into this lawsuit. This is despite the fact that the Daleys' home was clearly

built after the Vagas' home, and as such, it is reasonable to assume that the Vagas' water line

was installed first to the Vagas' home. That is, the water line was actually tapped into by the

Daleys or their predecessors.

Furthermore, it is the Daleys' fault or that of their predecessors that the line runs under

the Daleys' house. That is because the Daleys' house and/or its addition were built on top of

the Vagas' water line. The law in the State of Ohio is "call before you dig." Obviously, the

Daleys or their predecessors did not call before they dug, and as such, did not obtain the

information as to the location of the water line.

Furthermore, as this Court is well aware, Evidence Rule 408 specifically excludes

evidence of compromise or offers to compromise. "Evidence of conduct or statements made

in compromise negotiations is likewise not admissible." Such evidence cannot be presented

to prove liability. Obviously, that is the sole purpose that such evidence is sought to be

presented by the city.

As a mater of practicality, if this Court were to determine that the Vagas' are in the

right, then, there would necessarily need to be a subsequent case brought against the Daleys

to have the Daleys removed from the Vagas' water line. Since the Daleys are not parties to

the within action, they are not bound by this Court's determination with respect to same. As

such, the Daleys could then defend that action. If a subsequent court were to find that the

2

^OPY

Daleys did not have to remove themselves from the Vagas' water line, then, there would be

a stalemate. That is, both households would remain on the water line despite the claim by the

City of Hudson that such situation is illegal.

If the City of Hudson believes that only one household can be attached to the water

line, then all households attached to that water line must be included in the same lawsuit.

The absence of a necessary party constitutes a jurisdictional defect which precludes a

court of common pleas from properly rendering a declaratory judgment. City of Cincinnati

v. Whitman (1975), 44 Ohio St.2d 58. Such ajurisdictional defect can be raised at any time -

- even on appeal. Bretton Ridge Homeowners Club v. DeAngel is (1988), 51 Ohio App.3d 183.

What that means is that if this Court were to rule against the Vagas', the Court of

Appeals could then overturn this Court's judgment on the basis that not all of the necessary

and indispensable parties have been joined in this matter. Essentially, whatever judgment this

Court renders can and will be attacked on a multiple of occasions - - unless and until all of the

parties to this matter are included. See, for example, Cerio v. Hilroc Condominium Unit

Owners Ass'n, Inc.(Ohio App. 8 Dist. 03-18-2004).

For the foregoing reasons, the within matter should be dismissed for the City's refusal

to add necessary and indispensable parties-the Council President and his wife.

pectfully submitted,

AIPR,OS & LOEPP, LTD.

HOIWAS C. LOEPP (#0046629)3580 Darrow RoadStow, Ohio 44224(330) 688-0560Fax (330) [email protected] for Defendants

1 11 3

OPY


A copy of the foregoing documents was sent on June 29, 2007 via regular U.S. Mailupon:

Charles T. RiehlR. Todd HuntAimee W. LaneWalter & Haverfield LLPThe Tower At Erieview1301 East Ninth St., Ste 3500Cleveland, OH 44114-1821

THOMAS C. L E P(' # 046629)Attorney for efendants

4

^OPY


CITY OF HUDSON, OHIO, ) CASE NO. CV 2006-11-7340

)Plaintiff, ) JUDGE: THOMAS TEODOSIO

)vs. )

)WILLIAM E. VAGAS, et al., )

)Defendants.

)

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION TO STRIKEDEFENDANTS' REPLY BRIEF, OR, IN THE ALTERNATIVE, MOTION FOR LEAVE

TO FILE SURREPLY

I. Defendants' Reply is Procedurally Imurooer and Should be Stricken

Pursuant to Local R. 7.14(a), after the submission of a motion, the only subsequent

pleading permitted is the opposing party's response to that motion. Accordingly, reply briefs

"may only be filed with leave of the Court only upon a showing of good cause." Loc. R. 7.14(c);

Kobalfa v. Twinsburg Youth Softball League (Summit Cty 2006), 2006-Ohio-4872 (holding that,

in summary judgment proceedings, a party's additional brief would not be considered as it was

improperly before the trial court).

In this case, Defendants filed their Reply Brief in violation of Local R. 7.14(a), without

requesting leave of Court and without any evidence of good cause. Indeed, the substance of

Defendants' Reply Brief. only includes additional and unfounded allegations of political

EXHIBIT

7T

^COPY

gamesmanship on Plaintiff's behalf and additional and inapplicable reliance on Evidence Rule

408.

Defendants should not be allowed to ignore this Court's procedural rules to submit

additional arguments not raised in their initial motion. Indeed, Defendants even use the threat of

additional litigation as a method of coercing parties into the lawsuit. See Plaintiff's Reply at 3

("Essentially, whatever judgment this Court renders can and will be attacked on a number of

occasions-unless and until all of the parties to this matter are included").

Accordingly, because Defendants submitted their Reply Brief without leave of Court and

without a showing of good cause, Plaintiff respectfully requests that their Reply Brief be stricken

from the record.

II. Evidence Rule 408 is Inapplicable in this Case

In an attempt to divert the Court's attention from the issues in this case, Defendants now

raise the novel argument that their prior agreement and commitment to install a new water line to

service their residence can not be considered by this Court because it was an offer to compromise

under Evid. R. 408 and that "such evidence cannot be presented to prove liability."I Defendant's

Reply at 2. Defendants are mistaken in several regards.

1 To refresh the Court's recollection, the following is the sequence of events with respect to the

waterline:The Daleys' property fronts on the street and has a direct tie to the waterline.In 2003, the Cuyahoga Falls Small Claims Court found the Daleys liable for thecost of the repair of the waterline.In 2005, the Vagases committed to the Daleys that they would remove themselvesfrom the waterline.In 2006, the Vagases committed to the City that they would "correct the

situation."In 2006, the Vagases obtained an easement in the private street leading up to theirhouse for the purposes of constructing the alternative water line.

508209-I2

COPY

As an initial matter, in order for Evid. R. 408 to apply, "there must be an actual dispute,

or at least an apparent difference of opinion between the parties, as to the validity of a claim."

See e.g. Dallis v, Aetna Life Insurance Co., 768 F.2d 1303 (11`h Cir. 1985). In this case, Evid.

R. 408 does not apply because there was no dispute by Defendants that their tie-off was in

violation of Section 10 of the Rules and Regulations of the Hudson Water Department. Indeed,

as evidenced by Exhibits B and C of Plaintiff's previously filed Opposition to Defendants'

Motion to Dismiss ("PlaintifPs Opposition"), Defendants stated that they would correct their

violation and made no attempt to challenge the fact that they were in violation of the local rules.

See Exhibit B to Plaintiff's Opposition ("We will contact you after the work has been completed

so that you can remove us from your waterline") (emphasis added) and Exhibit C to Plaintiffs

Opposition ("we are in the process of working to correct this situation"). Defendants can not

now claim that there is a dispute as to the ownership of the waterline simply to try and use the

protection of Evid. R. 408. Accordingly, because there was no dispute, PlaintifPs evidence is

proper, relevant and admissible.

Further, even if the evidence was not admissible to prove liability-which it is-Evid. R.

408 would allow the use of Plaintiff's exhibits for other purposes, such as to prove that

Defendants had knowledge that they were in violation of the local rules. See e.g. Shimola v.

Cleveland (Cuyahoga Cty. 1992), 89 Ohio App. 3d 505.

Accordingly, Defendants' reliance on Evid. R. 408 is misplaced and should be given no

weight by this Court.

For the foregoing reasons, Plaintiff respectfully reiterates its request that this Court deny

Defendant's Motion to Dismiss.

508209-I3

OPY

508209-I


Charles T. Riehl (Reg. No. 0010971)City SolicitorE-mail: [email protected] Dial: 216-928-2895R. Todd Hunt (Reg. No. 0008951)Assistant City SolicitorE-mail: [email protected] Dial: 216-928-2935Aimee W. Lane (Reg. No. 0071392)E-mail: [email protected] Dial: 216-928-2985

WALTER & HAVERFIELD LLPThe Tower at Erieview1301 E. Ninth Street, Suite 3500Cleveland, OH 44114-1821(216) 781-1212 / Fax: (216) 575-0911

Attorneysfor Plaintiff

4

^OPY7

Maisi?os & Lbepp,Limited

3580 Darrow RoadStow, OH 44224(330) 6884806

(330) 688-1103 Fax


?007 JUC 23

DANlEC M. N,pRR1ClV

Stlrlfrt9Ti ^^.i,vlYCCER^; pF COURTS


Plaintiffvs.


Defendants

AM 7: 33

CASE NO. 2006-11-7340

JUDGE: THEODOSIO

MOTION FOR PRETRIAL

Now come the Defendants, by and through their counsel, and hereby request that

this Court set this matter down for a pretrial/status conference. As this Court well knows,

there is a Motion to Dismiss presently pending. Discovery has been ongoing. However,

the Plaintiff has refused to join all necessary parties, and as such, an adjudication by the

Court on the merits will not result in a final decision conceming the pertinent matters

herein. As such, the undersigned counsel believes that there is the necessity for all counsel

to discuss this matter with the Court.

WHEREFORE, Defendants pray that this Court set this matter down for a

Pretrial/Status Conference.submitted,& LOE>D.

THOMAS C. LOEPP (#0046629)3580 Darrow RoadStow, Ohio 44224(330) 688-0560Fax (330) [email protected] for Defendants

I EXHIBIT

COPY


A copy of the foregoing documents was sent on July 18, 2007 via regular U.S. Mailupon:


2

OPY

DANIEL M. HCAAIGAMI

2001 JUL 26 Pt912, 00^N THE COURT OF COMMON PLEAS

SUMM^1 C^'iUUI SUMMIT COUNTY, OHIOCLERK OF COURTS

CITY OF HUDSON, OHIO, ) CASE NO. CV 2006-11-7340)

Plaintifl; ) JUDGE: THOMAS TEODOSIO

vs.


Defendants. ))

PLAINTIFF'S REPLY TO DEFENDANTS'MOTION FOR PRETRIAL

Now comes Plaintiff, by and through counsel, and respectfully submits its reply to

Defendants' Motion for Pretrial. Plaintiff disagrees with Defendants' assertion that it "refuse[s]

to join all necessary parties," and further states that this case concerns the enforcement of a

safety regulation of the city. As such, the City believes that there are no other necessary parties

in this lawsuit. Nonetheless, Plaintiff does not object to a pretrial conference to discuss this issue

with the Court. Further, Plaintiff would welcome the opportunity to have the Court assist in

discussing a possible resolution to this case.

As an additional matter, discovery has been repeatedly prolonged due to difficulties in

scheduling Defendants' depositions due to Mr. Vagas' seemingly inflexible schedule. Plaintiff

would request that at the pretrial conference, this Court ensure that the parties continue to

cooperate in the discovery process. Accordingly, Plaintiff requests that at the pretrial, the Court

address all current issues as well as the potential for mediation and/or resolution of this case.


Charles T. Riehl (Reg. No. 0010971)City SolicitorE-mail: [email protected] Dial: 216-928-2895R. Todd Hunt (Reg. No. 0008951)Assistant City SolicitorE-mail: [email protected] Dial: 216-928-2935Aimee W. Lane (Reg. No. 0071392)E-mail: [email protected] Dial: 216-928-2985


Attorneysfor Plaintiff

509826-I 2

L.OPY


The original and one ( 1) copy of the foregoing Reply Motion was sent by regular U.S.

Mail, postage prepaid, this _avr day of July, 2007 to:




509826•1

One of the

3

¶OPY

10U1 EUG 16 PIA 3s 1 8

SUNjPAIT CCU^^,^ IN THE COURT OF COMMON PLEAS

CLERK Orr COURTS SUMMIT COUNTY, OHIO

CITY OF HUDSON, OHIO, ) CASE NO. CV 2006-11-7340

Plaintiff, ) JUDGE: THOMAS TEODOSIO

vs.


Defendants.

PLAINTIFF'S PRETRIAL STATEMENT

Now comes Plaintiff, the City of Hudson, by and through counsel, and respectfully

submits its pretrial statement.

1. STATEMENT OF FACTS

Section 10 of the Rules and Regulations of Plaintiff's Water Department reads as

follows:


Section 1040.07 of the Codified Ordinances of the City of Hudson futher provides that:


COPYI'

In the fall of 2005, Plaintiff became aware that the water line servicing Defendants'

residence is fed from a tie-in to the water line and meter servicing Defendants' neighbor's (the

Daley's) residence. Exhibit 12 to Deposition of William Vagas ("William Vagas Tr.")'. The

water line servicing Defendants' residence traverses under the structure of the Daleys' house

William Vagas Tr. at 37; Tr. Exhibits 3 and 4. While approval of the Superintendent of the

Water Department is required for Defendants to receive their water in this matter, Defendants

have iuo proof that such approval has ever been granted. William Vagas Tr. at 36 (testifying that

"How do we know [the Superintendent] didn't approve it? I don't see any documentation on

it."). Defendants also acknowledge that potential safety issues that would arise from a problem

with the Daleys' water line would be resolved if they had there own feed. William Vagas Tr. at

38-39; Debra Vagas Tr. at 7 ("It would benefit us to have our own shut-off valve, our own curb

valve and one at their house, and that way if anybody had interrupted service it would not be shut

off at the Daleys' house or at our house").

The Daleys have consistently asserted ownership of the waterline. Brian Daley Tr. at 15

(testifying that the City told him that he was the owner of the waterline "when they told. me it

was my obligation to fix it"); Raija Daley Tr. at 11? Further, Defendants were aware of the

Daley's ownership of the waterline. Mr. Daley had previously asked Defendant William Vagas

to be a witness against Plaintiff in a case concerning who was responsible for paying for a break

in the curb valve on the Daley's property. William Vagas Tr. at 27. Mr. Daley lost his case

1 The deposition transcripts of Defendants William Vagas and Debra Vagas, taken on July 27,2007, have been transcribed by the court reporter and are being reviewed by the Defendantspursuant to Ohio Civ. R. 30(E). When they have been signed by Defendants and certified by thecourt reporter, those transcripts will be filed separately with the Court pursuant to Ohio Civ. R.30(F).' Brian Daley and Raija Daley's depositions have been previously filed with this Court.

51f779- 2

^OPY

against the City. Id. at 28. Mr. Daley never asked Defendants for any assistance or

reimbursement for the costs associated with the repair of the waterline. William Vagas Tr. at 27.

In July 2005, an attomey for the Daleys sent a letter to Defendants requesting them to

discontinue use of the Daley's waterline for practical and legal reasons. William Vagas Tr. at

29; Exhibit 7. Defendants responded by letter on September 16, 2005, informing the Daleys that

"we will be removing ourselves from the waterline on your property." Id. at 31; Exhibit 8; Brian

Daley Tr. at 9 ("He would remedy it and get off my line by the spring of '05"). That letter

proposed a course of action that Defendants stated they would take to resolve that issue. Id.

The first course of action was to obtain and file an easement for use of a neighboring

property's waterline. William Vagas Tr. at 32. Defendant Vagas proceeded to acquire and file

that easement and admitted that the purpose of that action was "out of consideration for putting a

waterline in." Id. at 11, 13. The easement allowed Defendants to build the waterline with the

City's permission and size it so it would only serve Defendants' residence. Id. at 15.

The second course of action involved obtaining estimates on the work to be done.

Defendants spoke to contractors who gave oral estimates on the price of the work, which ranged _

from $2,500.00 to $6,000.00. Id. at 19.

The third course of action required Defendants to approve a contractor's work. Id. at 33.

However, that never happened because Defendants reversed course and suddenly believed that

"we were basically getting strong-armed" and "it's not our responsibility." Id.

In January of 2006, Plaintiff sent a letter to Defendants notifying them that their use of

the water line servicing their neighbor's residence violated Section 10 of the Rules and

Regulations of the Water Department and further advised Defendants that they needed to

discontinue their use of that water line. William Vagas Tr. Exhibit 12.

511779-13

In February of 2006, Defendants told Plaintiff that they were attempting to obtain an

easement for the installation of a new water line to service their residence and that they expected

to have the project completed by the end of Summer 2006. Id., Exhibit 13.

In July of 2006, Plaintiff advised Defendants that they had until the end of August, 2006

to complete the project. Id., Exhibit 21. As of this date, Defendants have not discontinued their

use of the water line servicing Defendants' neighbor's home and have not constructed a new

water line to service their residence in violation of Plaintiff s Rules and Regulations

II. LEGAL ISSUE

1) Whether Plaintiff can enforce its own rules and regulations for the health and

safety of its citizens?

2) Whether Defendants' neighbors, who have no legal interest in the case, are

required to be joined as parties by PlaintifPl

111. LIST ON NON-EXPERT TRIAL WITNESSES

1) Brian Daley

2) Raija Daley

3) Priscilla Blanchard

4) William Vagas (as on cross-examination)

5) Debra Vagas (as on cross-examination)

IV. LIST OF EXPERT WITNESSES

Plaintiff does not anticipate calling any expert witnesses at this time, but reserves the

right to do so if the need arises.

V. SPECIAL EQUIPMENT NEEDED FOR TRIAL/SPECIAL LEGAL PROBLEMS

None anticipated.

511779-1 4

COPY

VI. ESTIMATED LENGTH OF TRIAL

Defendants anticipate that this trial should take no longer than one day.


511779•1

Charles 1'. Riehl (Tteg. No. 0010971)City SolicitorE-mail: [email protected] Dial: 216-928-2895R. Todd Hunt (Reg. No. 0008951)Assistant City SolicitorE-mail: [email protected] Dial: 216-928-2935Aimee W. Lane (Reg. No. 0071392)E-mail: [email protected] Dial: 216-928-2985


Attorneysfor Plkintiff •

5

COPY


The original and one ( 1) copy of the foregoing Motion for Summary Judgment was sent

by regular U.S. Mail, postage prepaid, this /.' day of August, 2007 to:




5i nr9•i6

of the Attorne

OPY . .Maistro's & LoeAp,

Limited3580 Darrow Road

Stow, OH 44224(330) 688-1806

(330) 688-1103 Fax 2001 AUG 23 AM 7:59

SU(v1MiT COUNTYCLERK OF COURTS



Plaintiffvs.


Defendants

CASE NO. 2006-11-7340

JUDGE: BOND

NOTICE OF DEPOSITIONOF CITY OF HUDSONWATER DEPARTMENT

Duces Tecum

- *^*^,r,t^*rrr,r*a*a**a***r,^,^*,t,^,^rr**

Please take note that pursuant to Rule 30(B)(5) of the Ohio Rules of Civil

Procedure, the oral depositions of the person or persons designated by the City of Hudson

Water Department to testify concerning the following matters will be taken at 11:00 a.m.,

on the day of September 5, 2007, at the offices of Thomas C. Loepp, Maistros & Loepp,

Ltd., 3580 Darrow Rd., Stow, OH 44224.

You are notified that the Plaintiff wishes to examine the witness or witnesses who

have the knowledge of and are so designated on the following matters:

I. All person or persons who have control and custody of the Superintendent

for the City of Hudson Water Department's reaords from the beginning of

the Water Department to the present.

2. All person or persons who can testify relative to the knowledge as to how

the Superintendent for the City of Hudson Water Department from the

beginning of the Water Department to now has supplied Rule 10 of the

Rules of the Water Department.

I Ij

POPY• ^^

3. All person or persons who made the decision not to sue the Brian and Raija

Daley.

4. All person or persons who decided to bring suit against William and Debra

Vagas.

5. All person or persons who has knowledge as to when the water line which

supplies water to the Vagas home was installed.

6. All person or persons who has knowledge as to when the water line which

supplies water to the Daley home was installed.

7. All person or persons who has knowledge as to when the curb valve for the

Vagas home was originally installed.

8. All person or persons who has knowledge as to when the curb valve for the

Daley home was originally installed.

Said deposition will be taken before a Notary Public or other officer authorized by

law to take depositions, and will continue from day-to-day until completed.

lly submitted,S & LOEPP, LTD.

TUOMAS C. LOEPP ( #0046629)3580 Dan•ow RoadStow, Ohio 44224(330) 688-0560Fax (330) [email protected] for Defendants

2

OPY


A copy of the foregoing documents was sent on AugustU.S. Mail upon:


2007 via regular

TH MA C. LOEPP (#0046629)Attorney for Defendants

DUCES TECUM

A. Any and all documents of any kind regarding the water line which services

the Daley property.

B. Any and all documents of any kind regarding the water line which services

the Vagas property.

3

pOPYMaistros & Loepp,

Limited3580 Darrow RoadStow, OH 44224(330) 688-1806

^ (330) 688-1103 Fax

f^ N^ns`L I ^F ^••^S,aA,^6 3ti

^^$'(^M'^'i' , 4^j ,• ;S^qh ^i^CO h^Y

^9TSIN THE COURT OF COMMON PLEAS

SUMMIT COUNTY, OHIO


Plaintiffvs.


Defendants

CASE NO. 2006-11-7340

JUDGE: BOND

MAGISTRATE: SHOEMAKER

JUDGMENT ENTRY

*aa^a.r.**aa^,t^*^***,ra***a****r^^

This matter came on before this Court on the Motion to Dismiss filed By

Defendants William and Debra Vagas, for the Plaintiffs failure to join necessary and

indispensable parties.

In their Motion to Dismiss, which was filed on June 14, 2007, the Defendants claim

that the Plaintiffs Complaint must be dismissed because the Plaintiff has refused to and

continues to refuse to join Brian and Raija Daley as party Defendants.

This matter was referred to the undersigned Magistrate on August 23, 2007, when

the undersigned held a pretrial conference. At the pretrial conference, this Court indicated

to the Plaintiff that the Daleys are necessary and indispensable parties to this litigation, and

that it would be necessary for the Plaintiff to join the Daleys as party Defendants in this

matter. To date, the Plaintiff has not joined the Daleys as party Defendants.

At this time, the Plaintiffs are hereby given seven (7) days to join Brian and Raija

Daley as party Defendants to the within litigation. If the Plaintiff does not do so, then this

matter will be dismissed, with prejudice, against Defendants William Vagas and Debra

Vagas.

1

IT IS SO ORDERED.

D:

T 0 ,IKS C. LOEPP (#0046629)Attorney for Defendants

COUNSEL SUbWTTINGTHSORDER SHAJ..L SERVE ALL

COUNSEL OF RECORD AND ALLMQ aE PARTIES WITH A TIME-

STAMPED COPY OF THIS ORDER.

2

r%OPY

DANIEL k1, HORRIOUI

2107 SeP 28 A ti ro: ^ rSU^iiivC l

CLERK OF COUf^


CITY OF HUDSON, OHIO,an Ohio Municipal CorporationTown Hall27 East Main StreetHudson, Ohio 44236

Plaintiff,

V.

WILLIAM E. VAGAS1 Stokes LaneHudson, Ohio 44236

and

DEBRA A. VAGAS1 Stokes LaneHudson, Ohio 44236

Defendants.

and

BRIAN K. DALEY132 South Main StreetHudson, Ohio 44236

))

and

RAIJA DALEY132 South Main StreetHudson, Ohio 44236

New Party Defendants. )

CASE NO. CV 2006-11-7340

JUDGE THOMAS TEODOSIOMAGISTRATE SHOEMAKER

AMENDED COMPLAINT FORDECLARATORY JUDGMENT,INJUNCTION AND OTHERCIVIL RELIEF AND ADDINGNEW PARTY DEFENDANTS

11

nr%py

7

Now comes, Plaintiff, CITY OF HUDSON, OHIO (hereinafter the "City"), by and

through the undersigned counsel, and for its Complaint against Defendant WILLIAM E.

VAGAS and Defendant DEBRA A. VAGAS (hereinafter "Defendants") and BRIAN K. DALEY

and RAIJA DALEY (hereinafter "New Party Defendants"), hereby states and avers as follows:

PARTIES

1. The City is an Ohio municipal corporation located in Summit County and existing

under the laws of the State of Ohio.

2. Defendants are the record owners of the property known as 1 Stokes Lane,

Hudson, Ohio 44236, which is also known as 304 Stokes Lane, Hudson, Ohio 44236.

3. Defendants own property in Summit County and conducted activity that gave rise

to the claims asserted herein in Summit County and venue is otherwise proper pursuant to Ohio

R. Civ. P. 3(B)(3) and (6).

4. New Party Defendants are the record owners of the property known as 132 South

Main Street, Hudson, Ohio 44236.

5. New Party Defendants own property in Summit County and conducted activity

that gave rise to the claims asserted herein in Summit County and venue is otherwise proper

pursuant to Ohio R. Civ. P. 3(B)(3) and (6).

BACKGROUND FACTS

6. Plaintiffs incorporate each and every allegation contained in Paragraphs 1 through

5 above as if fully rewritten herein.

7. Pursuant to the powers granted to municipal corporations under Article XVIII,

Section 4 of the Ohio Constitution, the City operates its own Water Department.

513317•I2

S. Pursuant to its police powers granted under Article XVIII, Section 3 of the Ohio

Constitution, the City adopted Rules and Regulations for the operation of the City's Water

Department. Sec6on 10 of the Rules and Regulations reads as follows:


9. Section 1040.07 of the Codified Ordinances of the City of Hudson provides that:


10. ln the fall of 2005, the City became aware that the water line servicing

Defendants' residence is fed from a tie-in to the water line and meter servicing New Party

Defendants' residence. The water line servicing Defendants' residence traverses under the

stnicture of New Party Defendants' house. The City has no records of the Superintendent of the

Water Department approving water lines servicing Defendants' or New Party Defendants'

residences.

11. Should New Party Defendants' water service be shut-off, Defendants' residence

would also be without water.

12. In January of 2006, the City sent a letter to Defendants notifying them that their

use of the water line servicing New Party Defendants' residence violated Section 10 of the Rules

and Regulations of the Water Department and further advising Defendants that they needed to

discontinue their use of that water line. A copy of said letter is attached hereto as Exhibit "A."

si3m-i 3

OPY

13. In February of 2006, Defendants sent a letter to the City indicating that they were

attempting to obtain an easement for the installation of a new water line to service their residence

and that they expected to have the project completed by the end of Summer 2006. A copy of

said letter is attached hereto as Exhibit "B."

14. A water line easement agreement recorded with the Summit County Fiscal Agent

on May 1, 2006, shows that Arthur J. Stokes, Jr., Executor of the Estate of Helen M. Stokes,

granted Defendants an easement to install a new water line across a portion of the Estate's

property. A copy of the Easement is attached hereto as Exhibit "C."

15. Altemate water service could now be available to Defendants' residence through

the easement.

16. In July of 2006, the City advised Defendants that they had until the end of

August, 2006 to complete the project and install the altemative waterline as promised.

17. As of this date, Defendants have not discontinued their use of the water line

servicing New Party Defendants' home and have not constructed' a new water line to service

their residence.

18. In 2003, there was a lawsuit between New Party Defendants and Plaintiff which

established New Party Defendants' responsibility for the cost of maintenance of the water line on

their property, being Cuyahoga Falls Municipal Court Case No. 03 CVE 02243.

19. Defendants were aware of the lawsuit because New Party Defendants requested

Defendants and Defendants agreed to be a witness in the court case.

20. In July of 2005, an attorney for New Party Defendants sent a letter to Defendants

requesting them to discontinue the use of New Party Defendants' water line, a copy of which

letter is attached hereto as Exhibit "D."

5133t7-14

21. Defendants responded by letter dated September 16, 2005, informing New Party

Defendants that they would remove themselves from the water line on New Party Defendants'

property, a copy of which letter is attached hereto as Exhibit "E."

22. The continued establishment and utilization of the feed to Defendants' property

from a water line under New Party Defendants' house creates an unsafe condition and violates

the Rules and Regulations of PlaintifPs Water Department.


23. The City incorporates each and every allegation contained in Paragraphs 1



that Section 10 of the Rules and Regulations of the City's Water Department is a valid exercise

of the City's police power granted under Article XVIII, Section 3 of the Ohio Constitution and,

as a result, Defendants and New Party Defendants must comply with this local health and safety

regulation.

25. Pursuant to Civ. R. 57 and R.C. 2721.03, Plaintiffs are entitled to a declaration as

to ownership of the water line on New Party Defendants' property and responsibility for use and

maintenance thereof.


that the continued maintenance and utilization of an active water line under New Party

Defendants' house and servicing Defendants' property creates a safety hazard and is in violation

of the Rules and Regulations of Plaintiff's Water Department.

5u317-15

^OPY


27. The City incorporates each and every allegation contained in Paragraphs I


28. Pursuant to Civ. R. 65(B), Plaintiffs request that the Court issue an injunction

prohibiting Defendants and/or New Party Defendants, as their respective interests may appear,

from failing to comply with Section 10 of the Rules and Regulations of the City's Water

Department.

29. Defendants' and/or New Party Defendants', as their respective interests may

appear, failure to comply with Section 10 of the Rules and Regulations of the City's Water

Department poses a health and safety hazard to the residents of the City for whioh money

damages will not provide an adequate remedy.

WHEREFORE, Plaintiffs demand judgment as follows:

(1) An order declaring that Section 10 of the Rules and Regulations of the City WaterDepartment is a valid exercise of the police powers granted to the City underArticle XVIII, Section 3 of the Ohio Constitution and, as a result, Defendants andNew Party Defendants, as their respective interests may appear, must comply withthis local health and safety regulation;

(2) An order enjoining Defendants and New Party Defendants from failing to complywith Section 10 of the Rules and Regulations of the City Water Department andfurther as their interests may appear ordering Defendants to discontinue using thewater line servicing New Party Defendants' residence and to install a new waterline to service Defendants' residence through the easement granted to Defendantsfor that purpose; and

513317-I6

COPY

(3) Such other and further relief which the Court deems just and appropriate.


C ar es T. te 1(Reg. No. 0010971)City SolicitorE-mail: [email protected] Dial: 216-928-2895R. Todd Hunt (Reg. No. 0008951)Assistant City SolicitorEmail: [email protected] Dial: 216-928-2935Aimee W. Lane (Reg. No. 0071392)E-mail: [email protected] Dial: 216-928-2985

WALTER & HAVERFIELD LLPThe Tower at Erieview1301 East Ninth Street, Suite 3500Cleveland, OH 44114-1821216.781.1212Fax: 216.575.0911

Attorneysfor Plaintiff City of Hudson, Ohio


I hereby certify that a copy of the foregoing Amended Complaint for Declaratory

Judgment, Injunction and Other Civil Relief and Adding New Party Defendants was deposited in

the regular U.S. Mail, postage prepaid, addressed to: Thomas C. Loepp, Esq., Maistros &

Loepp, Ltd., 3580 Darrow Road, Stow, OH 44224, Attorney for Defendants, this cl-_7 day of

September, 2007.

5133t7-17

COPYWalter &Haverfield LIP

attorneys at law

Mr. & Mrs. William Vagas1 Stokes LaneHudson, OH 44236

Dear Mr. & Mrs. Vagas:

January 19, 2006

Charles T. Riehlcr/rhl[2wa1[crha e can

216.928.2895 dlrect line216.916.2334 dlrect fatc

Please be advised that the undersigned is the Law Director of the City of Hudson. I havebeen informed by Priscilla Blanchard, Director of Public Works of the City of Hudson, that thewater line which services your residence is fed from a tie-in to the service line which alsoservices your neighbor's property. I am further informed that the line which feeds your housetraverses under the structure of your neighbor's house. This situation creates a safety hazard forthe structural integrity of your neighbor's house as well as a potential problem for providingwater service to your house should service to your neighbor's house be somehow cut off.

The situation with your water line is in violation of Section 10 of the Rules andRegulations of Hudson's Water Department which provides:

"No single service shall service more than one meter except in specialcases which must be approved by the Superintendent of WaterDepartment. In a case where one or more properties are serviced from thesame service line, each service must have an independent Curb Valve."

It is my understanding that there is altemative service which is available to your property.Accordingly, we would request that you take all necessary steps to discontinue the same servicefrom your neighbor's line.

CTR:kawcc: Priscilla J. Blanchard, Director of Public Works

461728-1The Tower at Erievlew I 1301 East Ninth Street. Stilte 3500 1 Cleveland. Ohio 44114•1821

216.781.1212 tel 1 216.575.0911 faa I twav.wallerhav.com

GOP,YI , ,

February 20, 2006

Mr. Charles T. RiehlWalter & HaverfieldThe Tower at Erieview1301 East Ninth Street, Suite 3500Cleveland, OH 44 1 14-1 82 1

RECEIVED FEB 2 3 1006

Dear Mr. Riehl:

In response to your letter dated January 19, 2006, as the Daleys and their attorney (Dean Hoover) wereinformed on numerous occasions, we are in the process of working to correct this situation. There areno "alternate" service options available to us as mentioned in your letter. As we have told the Daleysand their attorney, the waterline that passes in front of our property is owned by the Stokes/Cook/Littlefamilies and they have indicated to us that they will not allow us to tie into it because it is old and theydo not want any problems with it (Mr. Daley had also spoken to Patty Cook and was also made awareof this). The Daleys then told us to dig a well. We informed them that we have no interest in digginga well since city water is available to us. At that point our only option was to put our own waterline in,but we needed an easement from the Stokes/Cook/Little families in order to accomplish this since theyown the vacant lot across from our property that would give us access to the main waterline hookup on91. We have been working with our attorney since late Summer of 2005 to obtain an easement fromthe Stokes et al. Unfortunately, the property is in probate (Helen Stokes passed away in 2005) and theprocess is taking longer than normally would be expected. We have been informed by our attomeythat he is getting close to having the Stokes et al approving the easement. Once the signatures havebeen obtained and the easement has been recorded we will contact contractors to bid on the job, etc.We have no definitive timeline except that we are doing our best to have this project completed by theend of Summer 2005 (if we do not incur any additional snags).

We are still a little confused as to why Mr. Daley would involve you, as the Law Director of the City

of Hudson, in his personal matter.

If you have any questions, please do not hesitate to contact us.

Bill and Debbie Vagas1 Stokes LaneHudson, OH 44236(330-655-9813)

Sincerely,

cc: Dean S. Hoover, Esq. (attorney for the Daleys)Hoover Legal Associates230 N. Main St.Hudson, OH 44236

Priscilla J. Blanchard, Director of Public Works

EXHIBITB

JWATER L[NE EASEMENT AGREEMENT

EASEMENT AGRF.Fa.^'• - is made and entered into asMW^a

S WAof the y of L 2006 'OI(ES, JR, EXECUTOROF THE ESTATE OF HELEN M. STO. e decedent's Last Will andTestament and the Summit County (Ohio) Pt 3, filed April 20, 2005 andDOROTHY S. LITTLE, a single woman (c ^ O.LIAM E. VAGAS amdDEBRA A. VAGAS, husband and wife (coll

I^e^fze ^^ f^'esS

A. Grantors are the owners of t ...», property located in the City of Hudson,County of Summit, State of Ohio, and nwre particularly identified in the deed recorded in Volume 7358,Pages 751-758 of the Summit County Records (Parcel No. 32-01646) ("Grantors' Property").

^ f1U10013bZ0ofAAoB. Granteas are the owners of that certain real property located contiguous to Grantors'

Property across Stokes Lane, which property is more particularly identified in the deed recorded asInstnunent lYo. 54814533 of the Summit County Records (Parcel No. 32-01527) ("Grantees' Property").

L N000139y01300pC. Gmntors desire to grant to Grantees and Grantees desire to obtain from Grantors a non-

exclusive water line eascmcnt within the Easement Area (as defined herein), upon the terms andconditions contained herein.

NOW, THEREFORE, in consideration of the sum of Ten Dollars (S10.00) paid by the Granteesand other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,the partics hereby agree as follows:

1. Water Line Easement. Grantors hereby grant, give and convey to Grantees, for thebenefit of Grentees' property, a non-exclusive easement to install, repair, maintain, replace, opetateand/or use one (1) portable waier line located under and across that certain portion of Grantors' Propertymore particularly described on Exhibit A and shown on Exhibit B attached hereto ("Easament Area").The Grantors reserve the right to tap into said water line to serve Grantors' Property and to use theEasement Area for any purposes not inconsistent with the rights granUad by this Easement, including theright to construct driveways, sidewalks, aurfaca roads and similar improvements.

2. Installation/Maintenanee. The Grantees shall be responsible for all costs associated withthe installation, maintenance, repair andlor replacement of the water line. The water line shall be keptunderground in aocordance with applicable ordinances, codes and regulations. To the extent thatGrantees' installation or maintenance requires the removal of landscaping and/or other improvementswithin the Easement Area, Granteea ghall minimi24 all damage and removal to the extent possible. Allimproventents moved or damaged by the Gtantees shall be replaced or repaired by the Grantees, at theirsole cost and expense, to the same or similar condition that existed prior to their removal and/or damage.All maintenance, repair and replacement shall be accompiished in a manner to keep the sana; in a goodand safe condition and not to inhibit Grantors' use of the Easement Area unless otherwise agreed to inadvance by the parties. If the Grantees fail to keep the Easement Area in a good and safe condition, theGrantors may notify the Gtantees of the maintenance, repair and replacement necessary, and if the.Grantees fail to commence the necessary maintenance, repa'tr or replacement within th'vty (30) days afterreceipt of written notice from Grantors, the Grantors shall have the right to perform the maintenance,repa'v and/or replacement and submit the cost to the Grantees for payment. The Grantors further grantunto Grantees the right to make reasonable temporary use of the property adjacent to the Easemeat Area

EXHIBITc

55 ^^^ ^^ ^r

i

during installation, maintenance, repair or replacement, provided that Gtantees shall..endeavor tominimize the extent of use of Grantors' Property and shall repair and replace any damaged landscaping tothe same or similar condition as existed prior to the removal or damage. Except in the case of anemergency, the Grantees shall provide Grantors with at least three (3) days written notice prior to anyentry on Grantors' Property to perform such nwintenance or repair to the water line.

Notwithstanding the foregoing, in the event that the Grantors elect to tap into the water line as setforth in Section 1 above, the users of the water line shall be responsible for all maintenance, repair andlorreplacements costs associated with the water line from the tap-in point to State Route 91 (Darrow Road)thereafter in proportion to the number of users. For example, should there be two users of the water lineeach user will be responsible for one-half (1/2) of all maintenance, repair and/or replacements costs,however, in the event that there are three users of the water line each user will be responsible for one-third(113) of all maintenance, repair and/or replacements costs. Before performing any repairs, maintenance orreplacements, the user intending to make the same shall notify the other users in writing of this intentionand of the estimated cost to complete the repairs, maintenance or replacements. The notice may bewaived if the other users agree to pay that usa's share of the cost of repair, maintenance or neplacements.Failure of the other users to object by giving written notice within ten (10) days after receipt of the firstnotice shall be deemed approval of the proposed mpairs, maintenance or replacements and an agreementto pay their proportionate share of the estimated costs. If objection is made by giving written noticewithin the ten (10) day period, the user intending to make the repairs, nlaintenance or replacements maynevertheless proceed with the repairs, maintenance or replacements at that user's expense. However, nouser shall unreasonably witbhold approval and agreement to pay for their proportionate share of the costof the requested repairs, maintenance or replacements. A user unreasonably lyithholding approval shallbe liable to reimburse the other users for their proportionate share of the costs of the repairs, nlaintenanceor replacements plus all costs incurred in collecting the sarne. It shall not be unreasonable for one user toobject to repairs, maintenance or replacernents caused by the negligent or wrongful actioris of the anotheruser. Grantors shall be solely responsible, at their sole expense, for the maintenance; repair andreplacement of their water line and related facilities up to tap-in point and including the connectionapparatus.

3, Buildina Restriction. The parties agree that no buildings or other structures (exceptingdriveways, sidewalks, surface roads and sinrilar improvements) shall be constructed on the EasementAree by the Grantors or Gtantees.

4. Itelocation. Grentors reserve the right to relocate andlor remove Grantees' water line outof the Easement Area. Grantors ehall pay all costs associated with the relocation and/or removal ofGrantees' water line out of ahe Easement Area. Notwithstanding the above, if the water line is removedby the Grantors, dro Grantors shall provide an altemative means to provide water to Grantees' Property, atGrantors' sole expense. The parties agree to reasonably coopetate with each other and execute anynecessary documents to reflect said change in location of the Easement Area and the water line acrossGrantors' Propetty.

5. Miscellaneous. The words "Grantom" and "Grantees" shall include all heirs, executors,adndnistratives, successors and assigns, as the case nlay be, including, but not limited to, all futureowners of the Grantors' Property and the Grantees' Property, it being intended that this easement shallrvn with the lands benefited and burdened, Upon the tnumfer of the interest of the parties in the Grantors'Property or Grantees' Property, the suceessor/transferee shall be responsible for the obligations hereunderand the transferor shall have no responsibility thereafter. This Easement shall be construed in accordanoewith Ohio law and shall not be amended or modified unless in writing executed by both parties andrecorded in the public records of Sumndt County, Ohio.

1t9l391 ;L IpNtl^I^IIN ^g s241615

1 MsF

2

i

OPY

daM a DanerNe, iuaait frlaeal off1Nr

Gfantees join in the execution of this Basement to acknowledge Orantees' acceptance of the temisand conditions of this Easement relating to the Easement Area.

IN WITNESS WHEREOF, the parties have executed this Easement as of the day and year frstwritten ebove.

STATE OF OHIO

COUNTY OF SUMMff

GRANTORS:

^l`n,^lt,,,. ^ ^kv&j j-yecvk4zlARTHUR J. STOKES, R, EXECUTOR OFTHE ESTATE OF HELEN M. STOI{ES

DOAOTSY S.ILI'ITLE

BEFOREMB, a Notary Public in and for said county and state, personally appeared ARTH[1R,U.STOKES, JR, EXECUTOR OF THE ESTATE OF HELEN M. STOICES, who acknowledged that hedid execute the foregoing instrument on behalf of said estate and that the same is his free act and deed.

IN TESTIMONY VVSEREOF, I have hereunto set my hand and seal as of this '=' day of. 2006.

Notary PublicPrint N

R0g8lT 0. PtCIUPg. AMCaty at titr^^-sma Cmo

STATE OF OHIO ) k1e7 11yConnNnlon haa m tralC.

rtSS: ^e, daLL tiaetlan 147.D3

OOLAJTY OF SUMMIT ) Ncll

BEFORE hHI, a Notary Public in and for said county and state, personally appeated DOROTHYS. LIITLE, who acimowledged that she did execute the foregoing instrmnent and that the same is herfcee act and deed.

IN TESTIMONY WHEREOF, I have hereunto set^my hand and seal as of this 9Z" day ofh.v.•rN .2006.

1295391 3

RCHERT 0. PHRLIPS. Attomey et LawNotuy PUEIio - gtato of Ohlo

kti COMMISSIOR 1^4109^R.C^ndft

3

OPY

STATE OF OHIO )) SS:

COUNTY OF SUbIIuIIT )

GRANTEES:

E. VA AS

b'2^^ U4tA^DEBRA A. VAGAS

BEFORE ME, a Notary Public in and for said county and state, personally appeared WIId,IIARh[E. VAGAS and DEBRA A. VAGAS who acknowledged Ehet they did execute the foregoing instnunentand the same is their free act and deed.

IN TES 'iMONY VPHEREOF, I have hereunto set niy band and2006. seal sI wLday of

NotaryPubl'PrintName: LNMIIIMIIb4Y1

IqOi^YaNaEqiuhl tl,l111

I^MIÎI^viI.^WÎâ^N8111^11n ^ ôf"p

Thia lnatnanent Preparcd by:John M. Coyne, t11, Esq.Roetul & Andress, LPA222 South Main StreetAlvon, Oltio 44308

1195391 4

4

caPYEihibit A

January 17, 2006

Legal Descriptionfor

25' Utitity Easement

Situated in the City of Hudson, County of Summit, and State of

Ohio and known as being part of lot 45 formerly Hudson Township and

siore fully bounded and described as follows:

Commencing for reference at the intersection of the centerline

of South Main St. ( Route 91, 66.00' wide) and the centerline ofRoute 303, which intersection is also the Northeast corner of saidlot 45, thence S 00005'00" W, along the centerline of said SouthMain St., a distance of 1863.93' to the centerline of a privatedrive Known as Stokes Lane ( 50.00' wide) and the Place of Beginningfor the easement herein described;

Thence S D0°05'00" W, along the centerline of South Main St.,a distance of 26.21' to a point;

Thence S 72°35'00" W, along the South line of said StokesLane, a distance of 102.96' to an angle point in said South line;

Thence N 89°39'20" W, along the South line of said StokesLane, a distance of 5T8.80' to a point;

Thence N 00°20'40" E, a distance of 25.00' to the canterlineof said Stokes Lane;

Thence S 89039'20" E, along the centerline of said StokesLane, a distance of 574.89' to an angle point in said centerline of8tokas Lane;

Thence N 72°35'00" E, along the canterline. of said StokesLane, a distance of 106.94' to the Place of Beginning asdetermined by Ronald L. Ferris, Registered Surveyor #6970 inJanuary of 2006 from information on deed recorded with reception #54814533 of the Summit County Records.

The basis of bearings for this description is S 00°05'00" W,the bearing given for the centerline of South Main St. in deedrecorded with reception # 54814533 of the Summit County Record ofDeeds.

This description intends to describe the Southerly 25.00' ofStokes Lane between South Main St. and the West line of parceldescribed in deed recorded with reception # 54814533.

^J/ UA '•^ •^ ^ 1^^NifNNf/Nqp•rr.^C (J/^-,^.,1^ ^ ••a ^ 4 ••

RpIIM,0

(4 ,

TRANSFER NOT NECESSARY ^ '•SEC. 319.2112 REV. CODE COMP IED WITh

f v r! EAel

/^//IfIlt^{I

Conslderatfon

JOHN A. DONOFRIO By rFlsoa108ber Fiscel0lAcer

No. oi peges^

O M o^"mwvmby Ta> < AQ wAW"QOOd rO00d"b'0#P

qbkhi, tm u ^7N

5-1-06TRANSFER NOT NECESSARYJohn A. Donofrio, Fiscel OHicer

5

i

" [eaay yaamasea)

$5316565

SUmeJt-F1l 01f1a^^ M.N

8 N414i3

A7TORNEYS AT LAW

HOOVER LEGAL ASSOCIATESA PROFESSIONAL CORPORATIONN

230 NORTH MAIN STREET

HUDSON, OHIO 44236

TELEPHONE (330) 842•4V t 0

FACSIMILE (330) 342•491 1

E•MAIL HLA®ADELPHIA.NET

July 28, 2005

VIA CERTIFIED U.S.MAIL7005 0390 0006 3476 7519

Mr. and Mrs. William VargasOne Stokes LaneHudson, Ohio 44236

Dear Mr. and Mrs. Vargas:

We are attorneys for your neighbors, Raija and Brian Daley.

It is our understanding.that: -

1. The underground water service line to your housecrosses under the Daley house, across their yard and under theirgarage;

2. There is no recorded easement or other writtendocument granting you the legal right to have your water line onthe Daley property. Instead, the Daley home was previouslyowned by a relative of a former owner of your home and theDaleys' predecessors gave verbal permission for your water lineto their relatives; and;

3. A water main may be located within the right-of-way ofthe lane on which your house fronts.

The Daleys are concerned about your water line continuingin its current location for several reasons, both practical andlegal.

One practical co.ncernis that your water line may burst anddamage the Daley's property.

m

•EXHIBITD

One legal concern is that the terms 'and conditions of yourwater line being present on the Daley property must bedocumented since the owners of your property and the Daleyproperty are no longer related.

We suggest that the solution to this problem is that youeither immediately discontinue"use of your existing water lineon the Daley property and tap into the water main in the right-of-way or you enter into a written, revocable license agreementwith the Daleys permitting you to continue to use the existingwater line until further notice by the Daleys on terms andconditions which will protect the Daleys.

If neither of the above options are acceptable to you, wehave advised our clients that they should commence legal actionin the Summit County Common Pleas Court to obtain an order thatyou remove your water line from their property. It is oursincere hope that litigation will not be necessary.

Please let us know how you wish to proceed at your earliestconvenience.

Thank you in advance.

^Dea S. Hoover

DSH/dlm

cc: Clients

OPY

VIA CERTIFIED MAIL

September 16, 2005

Mr. & Mrs. Brian Daley132 S. Main St.Hudson, OH 44236

Dear Brian & Raya,

As was mentioned to Raya in a phone conversation with Debbie two weeks ago, we willbe removing ourselves from the waterline on your property. We will have our ownwaterline installed (we have no interest in digging a well). These are the necessary stepswe will be taking in order to protect ourselves from any fiuther unknown liability by youor future homeowners of your property.

Step 1 Easement being drafted by our attomey (in process).Step 2 Obtain signatures on easement from Cook, Stokes & Little.Step 3 File easement with the countyStep 4 Have property surveyedStep 5 Contractors out to bid on workStep 6 Approved contractor to begin work

The above procedures will take time, as mentioned to Raya, so there is no need to contactus. We will contact you after the work has been completed so that you can remove usfrom your waterline. At that time we expect you to cap the existing waterline o„Q; at yourexpense, on vour prooertv so not to damage our property.

Sincerely,

Bill and Debbie VagasI Stokes LaneHudson, OH 44236


Maistros &,LoePR• Limited

3580 DarYow RoadStow, OH 44224(330) 688-1806

(330) 688-1103 Fax

IN THE COURT OF COMMON PLEASSIINIlVITT COUNTY, OHIO

CITY OF IIUDSON, OHIO

Plaintiffvs.


Defendants

V8.

BRIAN K. DALEY, et al.

New Party Defendants

CASE NO. 2006-11-7340

J'UDGE: BOND

ANSWER ANDAND CROSS-CLAIMOF DEFENDANTSWILLIAM E. VAGAS ANDDEBRA VAGAS

Now come Defendants, William and Debra Vagas, by and through their counsel,

and hereby answer the Complaint as follows:

1. These Defendants admit the allegations contained in paragraph one of the

Amended Complaint.

2. These Defendants admit the allegations contained in paragraph two of the

Amended Complaint.

3. These Defendants admit the allegations contained in paragraph three of the

Amended Complaint.

4. These Defendants admit the allegations contained in paragraph four of the

Amended Complaint.

1

I

EXHIBIT

4_ I

OPY

5. These Defendants admit the allegations contained in paragraph five of the

Amended Complaint.

6. Paragraph number six of the Amended Complaint does riot require a

response.

7. On information and belief, these Defendants believe that the information

contained in paragraph number 7 of the Amended Complaint is accurate.

8. Section 10 of the Rules and Regulations speaks for itself. These Defendants

deny the balance of the allegations contained in paragraph number 8 of the

Amended Complaint.

9. Section 1040.07 of the Codified Ordinances of the City of Hudson speaks

for itself. These Defendants deny the balance of the allegations contained in

paragraph number 9 of the Amended Complaint.

10. These Defendants are without information sufficient as to form a belief as to

the truth or falsity of the allegations contained in paragraph number 10 of

the Amended Complaint, and therefore deny same.



the Amended Complaint, and therefore deny same.

12. These Defendants admit to receiving a letter from the City of Hudson. These

Defendants deny the balance of the allegations contained in paragraph 12 of

the Amended Complaint.

13. These Defendants admit that they informed the City of Hudson that they

were attempting to obtain an easement for the installation of a new water

line. These Defendants deny the balance of the allegations contained in


2

OPY

14. These Defendants admit that a certain easement agreement has been

recorded. These Defendants deny the balance of the allegations contained in




the Amended Complaint, and therefor deny same.

16. These Defendants admit that they were advised by the City that they had a

certain amount of time to complete the project. These Defendants deny the


Amended Complaint.

17. These Defendants admit that they have not discontinued their use of the

water lien which they have been using, uninterrupted, from the date that

they owned the property. The Defendants deny the balance of the

allegations contained in paragraph number 17 of the Amended Complaint.

18. These Defendants admit that there was a certain case filed in Cuyahoga

Falls Municipal Court. These Defendants deny the balance of the


19. These Defendants admit that they were aware of a certain case formerly

pending in Cuyahoga Falls Municipal Court. These Defendants deny the


Amended Complaint.

20. Exhibit D speaks for itself. These Defendants deny the balance of the


21. Exhibit E speaks for itself. These Defendants deny the balance of the


3

I

^OPY

22. These Defendants deny the allegations contained in paragraph number 22 of


23. Paragraph number 23 of the Amended Complaint does not require a

response.







27. Paragraph number 27 of the Amended Complaint does not require a

response.





30. These Defendants deny all allegations not specifically admitted herein.

FIRST AFFIRMATIVE DEFENSE

31. Plaintiff's Complaint fails to state a claim upon which relief can be granted.


32. Plaintiff's Complaint fails for the fact that the Plaintiff has failed to join a

necessary and indispensable party.

THIRD AFFIRMATIVE DEFENSE

33. Plaintiff's Complaint is barred by the doctrines of laches, waiver, and/or

estoppel.


4

^OPY

34. PlaintifFs claims are barred by the applicable statute of limitations.

FIFfH AFFIRMATIVE DEFENSE

35. Plaintiff's claims are barred by the applicable statute of repose.

SIXTH AFFI TIVE DEFENSE

36. Plaintiff's claims are barred by the Plaintiff's own actions.

SEVENTH AFFHtMATIVE DEFENSE

37. Plaintiff s claims are barred by the negligence or other violation of law by

the new party Defendants.

CROSS-CLAIM

Now come Defendants, William and Debra Vagas, by and through counsel, and

hereby brings a Crossclaim against New Party Defendants, Brian and Raja Daley. .•

38. The Vagases are the owners in fee simple of certain real estate known as 1

Stokes Lane, Hudson, OH 44236. .

39. The New Party Defendants, the Daleys are the owners in fee simple of

certain real estate known as 132 S. Main Street, Hudson, Ohio 44236.

40. On information and belief, it is believed that the two properties referred to

in paragraphs one and two of the Cross-Claim were formerly under the same

ownership. I

41. On information and belief, it is alleged that while the two properties referred

to in paragraphs one and two of the Cross-Claim were formerly under the

same ownership, a water line was placed on the property which appears to

serve the homes located at both of the addresses referred to in paragraphs

number one and two of the Cross-Claim.

42. The water line referred to in the previous paragraph of this Cross-Claim has

been in continuous use for well over 21 years.

5

COPY

43, This water line has been utilized by Defendants William and Debra Vagas

openly, notoriously, continuously, and, adversely for at least 21 years.

44. The utilization of the water line with the facts and circumstances

surrounding the same establishes an easement by implication and/or one by

presoription.

45. This easement is reasonably necessary to avoid the diminution in value and

interference to the beneficial enjoyment of the Vagas' residence.

WHEREFORE, these Defendant requests that the Court recognize and grant there is

an easement in favor of the Vagases, consisting generally of an easement by implication or

prescription. These Defendants request damages in as follows: attorney fees and costs

herein.


and that all costs and legal fees be assessed agai"he Plaintiff.

es6ectful submitted,& LOEPP, LTD.

AS C. LOE P( 00 6629)Darrow Road

Stow, Ohio 44224(330) 688-0560Fax (330) [email protected] for Defendants

6

I

^OPY


A copy of the foregoing documents was sent on October 8, 2007 via regular U.S.Mail upon:


Brian & Raja Daley132 S. Main St.Hudson, OH 44236

/ .^^-,'^__---•..

THOMAS C. LOEPP (#0046629)Attorney for Defendants

II 7

COPY .

1oR1 Ro'd 2o Gr^ ^^ 05

Su«^f^,il :;G'u^;;^'GLFRI: OF GvJf;TS IN THE COURT OF COMMON PLEAS

SUMMIT COUNTY, OHIO


Plaintiff,

V.

WILLIAM E. VAGAS et al.

Defendants,

CASE NO: CV-2006-11-7340

JUDGE TEODOSIO

MAGISTRATE SHOEMAKER

ANSWER

Defendants Brian K. Daley and Raija Daley (the "Daleys") respond to Plaintiff City of

Hudson, Ohio ("Plaintiff's") Amended Complaint (the "Complaint") as follows:

PARTIES

1. The Daleys admit the averments contained in paragraph 1 of the Complaint.

2. The Daleys are without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 2 of the Complaint and therefore deny the same.




5. As to the allegations of paragraph 5 of the Complaint, the Daleys admit only so

much of the paragraph that avers that they own property in Sununit County and that venue of this

action is proper in this Court. The Daley's deny the remaining averments contained in paragraph

5.

OPY

BACKGROUND FACTS

6. In response to paragraph 6 of the Complaint, the Daleys restate their answers to

paragraphs 1 through 6 of the Complaint as if set forth verbatim herein.


much of the paragraph that avers that Plaintiff operates its own water department. The Daley's

are without knowledge or information sufficient to form a belief as to the truth of the remaining

allegations in paragraph 7 of the Complaint and therefore deny the same.


much of the paragraph that avers that Plaintiff adopted Rules and Regulations for the operation

of Plaintiff's water department. The Daley's further aver that the Rules and Regulations are in

writing and are the best evidence of their contents. The Daley's are without knowledge or

information sufficient to form a belief as to the truth of the remaining allegations in paragraph 8

of the Complaint and therefore deny the same.

9. The Daley's aver that the Codified Ordinances of the City of Hudson are in

writing and are the best evidence of their contents. The Daley's are without knowledge or

information sufficient to form a belief as to the truth of the allegations in paragraph 9 of the

Complaint and therefore deny the same.


much of the paragraph that avers that the water line servicing the Co-Defendants' residence runs

under the Daley's residence. The Daley's are without knowledge or information sufficient to

form a belief as to the truth of the remaining allegations in paragraph 10 of the Complaint and

therefore deny the same.


COPY .





14, The Daleys admit the allegations in paragraph 14 of the Complaint.

15. The Daleys admit the allegations in paragraph 15 of the Complaint.



17. The Daleys admit the allegations in paragraph 17 of the Complaint.


much of the paragraph that avers that they were named as a party to a lawsuit in the Cuyahoga

Falls Municipal Court Case No. 03 CVE 02243. The Daleys aver that the remaining allegations

contained in paragraph 18 of the Complaint call for a legal conclusion and therefore no response

is required.


much of the paragraph that avers that Co-Defendant William Vagas was asked and agreed to be a

witness in the court case. The Daley's are without knowledge or information sufficient to form a

belief as to the truth of the remaining allegations in paragraph 19 of the Complaint and therefore

deny the same.




much of the paragraph that avers that the water line servicing the Co-Defendants' residence and

?OPY

running under the Daley's residence creates an unsafe condition. The Daley's are without

knowledge or information sufficient to form a belief as to the truth of the remaining allegations

in paragraph 22 of the Complaint and therefore deny the same.



paragraphs I through 23 of the Complaint as if set forth verbatim herein.

24. The Daleys aver that the allegations contained in paragraph 24 of the Complaint

call for a legal conclusion and therefore no response is required.




much of the paragraph that avers that the water line servicing the Co-Defendants' residence and

running under the Daley's residence creates an unsafe condition. The Daleys aver that the

remaining allegations contained in paragraph 26 of the Complault call for,a legal conclusion and

therefore no response is required.



paragraphs I through 27 of the Complaint as if set forth verbatim herein.





jOPY.

30. The Daleys deny each and every element of the Complaint not specifically

i

admitted to herein.

First Affirmative Defense

31. The Complaint fails to state a claim upon which relief may be granted.

Second Affirmative Defense

32. Plaintiff's claims are barred, in whole or in part, by the doctrines of waiver, laches

and/or estoppel.

Third Affirmative Defense

33. Plaintiff's alleged damages were caused, in whole or in part, by persons or factors

other than the Daleys.

Fourth Affirmative Defense

34. Plaintiffls alleged damages were caused by their own acts or omissions.

Fifth Affirmative Defense

35. The Daleys reserve their rights to assert additional defenses that become known

during discovery.

WHEREFORE, Defendants Brian K. Daley and Raija Daley demand that Plaintiff City of

Hudson, Ohio's Amended Complaint against them be dismissed, without costs, and for such

other further relief as is proper and necessary.

OPY .


Ni6holas P. Capoto'sto (0076436)Christopher F. Carino (0079445)BROUSE McDOWELL388 S. Main Street, Suite 500Akron, Ohio 44311Phone: 330.535.5711Fax: [email protected],brouse.com

Attorneys for Defendants Brian K. Daleyand Raija Daley


I hereby certify that a true and accurate copy of the foregoing was sent by regular U.S.

Mail on this 20th day of November 2007, to the following parties:

Charles T. Riehl, Esq. Thomas C. Loepp, Esq.City Solicitor MAISTROS & LOEPP, LTD.R. Todd Hunt, Esq. 3580 Darrow RoadAssistant City Solicitor Stow, Ohio 44224Aimee W. Lane, Esq.WALTER & HAVERFIELD, LLPThe Tower at Erieview1301 East Ninth Street, Suite 3500Cleveland, Ohio 441 14-1 821

Attorneysfor Plaintiff City of Hudson, Ohio Attorneysfor DefendantsWilliam E. Vagas and Debra A. Vagas

[697357]

DW4I M. HORRIGAN

200 1 IdOS'20 GM Ii: 05

CIT^t.

\v

piktD^t^iH10f^ Vr V^t J

Plaintiff,

V.


Defendants,

CASE NO: CV-2006-11-7340

JUDGE TEODOSIO

MAGISTRATE SHOEMAKER

JURY DEMAND ENDORSED HEREON

ANSWER AND CROSS-CLAIM

Defendants Brian K. Daley and Raija Daley (the "Daleys") respond to Co-Defendants

William E. Vagas and Debra A. Vagas ("Vagas"') Cross-Claim (the "Cross-Claim") as follows:

The Daleys are without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 38 of the Cross-Claim and therefore deny the same.

2. The Daleys admit the averments contained in paragraph 39 of the Cross-Claim.







6. The Daleys deny the averments contained in paragraph 43 of the Cross-Claim.

7. The Daleys deny the averments contained in paragraph 44 of the Cross-Claim.

8. The Daleys deny the averments contained in paragraph 45 of the Cross-Claim


OPY,

9. The Daleys deny each and every element of the Cross-Claim not specifically

admitted to herein.

First Affirmative Defense

10. The Cross-Claim fails to state a claim upon which relief may be granted.

Second Affirmative Defense

11. The Vagas' claims are barred, in whole or in part, by the doctrines of waiver,

laches and/or estoppel.

Third Affirmative Defense

12. The Vagas' alleged damages were caused, in whole or in part, by persons or

factors other than the Daleys.

Fourth Affirmative Defense

13. The Vagas' alleged damages were caused by their own acts or omissions.

Fifth Affirmative Defense

14. The Vagas have alleged and can establish no set ctf facts entitling them to attorney

fees and costs.

•Sixth Affirmative Defense

15. The Daleys reserve their rights to assert additional defenses that become known

during discovery.

WHEREFORE, Defendants Brian K. Daley and Raija Daley demand that William E.

Vagas and Debra A. Vagas' Cross-Claim against them be dismissed, without costs, and for such

other further relief as is proper and necessary.

OPY.

CROSS-CLAIM

As and for their Cross-Claim against Co-Defendants William E. Vagas and Debra A.

Vagas ("Vagas"), Defendants Brian K. Daley and Raija Daley (the "Daleys"), state as follows:

FIRST CAUSE OF ACTION(Breach of Contract)

1. The Daleys entered into a written agreement with Vagas, for the removal of water

service to Vagas' residence from the water line that runs under the Daleys' residence (the

"Contract"). Pursuant to Ohio Rule of Civil Procedure 10(D), a copy of the Contract is attached

hereto and incorporated herein at Exhibit 1.

2. The Daleys performed all of their obligations under the Contract.

3. Vagas breached the Contract by failing to perform their obligations in the

Contract.

4. As a direct and proximate result of Vagas' breach, the Daleys have sustained

damages in an amount in excess of $25,000 to be proven at trial.

SECOND CAUSE OF ACTION(Promissory Estoppel)

5. The Daleys incorporate all of the allegations contained in paragraphs 1 through 5

of this Cross-Claim as if fully rewritten herein.

6. Vagas promised and represented that they would: (a) have their property

surveyed; (b) engage contractors to bid on the work necessary to remove the water supply to the

Vagas' residence from the water line running under the Daleys' residence; and (c) approve and

pay a contractor to complete the work. (Exhibit 1).

7. The Daleys reasonably relied upon Vagas' promises and representations that they

would perform their obligations pursuant to the Contract.

OPY.

8. The Daleys' reliance upon Vagas' promises and representations was reasonably

foreseeable to Vagas.

9. Contrary to Vagas' promises and representations, Vagas failed to: (a) have their

property surveyed; (b) engage contractors to bid on the work necessary to remove the water

supply to the Vagas' residence from the water line running under the Daleys' residence; and (c)

approve and pay a contractor to complete the work. (Exhibit 1).

10. As a direct and proximate result, the Daleys have sustained damages in an amount

in excess of $25,000 to be proven at trial.

THIRD CAUSE OF ACTION(Unjust Enrichment)

11. The Daleys incorporate all of the allegations contained in paragraphs I through 11

of this Cross-Claim as if fully rewritten herein.

12. The Daleys have conferred a substantial benefit upon the Vagas by refraining

from filing a legal action to compel Vagas to remove service to their home from the water line.

13. The Vagas' retention of this benefit would be unjust and inequitable.

14. The Vagas are obligated to: (a) have their property surveyed; (b) engage

contractors to bid on the work necessary to remove the water supply to the Vagas' residence

from the water line running under the Daleys' residence; and (c) approve and pay a contractor to

complete the work.

15. Vagas are obligated to pay the Daleys for damages in an amount in excess of

$25,000.00 to be proven at trial.

I

WHEREFORE, Defendants Brian K. Daley and Raija Daley demand judgment against

Co-Defendants William E. Vagas and Debra A. Vagas as follows:

1. For damages in an amount in excess of $25,000 to be proven at trial, on the First

Cause of Action (Breach of Contract);

2. For damages in an amount in excess of $25,000 to be proven at trial, on the

Second Cause of Action (Promissory Estoppel);

3. For damages in an amount in excess of $25,000 to be proven at trial, on the Thiri!

Cause of Action (Unjust Enrichment);

4. For an order of specific performance on the each Cause of Action compelling

William E. Vagas and Debra A. Vagas to: (a) have their property surveyed; (b) engage

contractors to bid on the work necessary to remove the water supply to the Vagas' residence

from the water line running under the Daleys' residence; and (c) approve and pay a contractor to

complete the work;

5. Consequential and incidental damages;

6. For pre-judgment interest;

7. For judgment interest;

8. For costs;

9. For attomey fees; and

10. For such other relief, legal and equitable, that this court deems just and equitable.

JURY DEMAND

The Daleys demand ajury for all issues so triable.


Ni6holas P. Capotosto (0076436)Christopher F. Carino (0079445)BROUSE McDOWELL388 S. Main Street, Suite 500Akron, Ohio 44311Phone: 330.535.5711Fax: 330.253.8601npcna.brouse.comcfc ,brouse.com

Attorneys for Defendants Brian K. Daleyand Raija Daley

I

i



Mail on this 20th day of November 2007, to the following parties:

Charles T. Riehl, Esq. Thomas C. Loepp, Esq.City Solicitor MAISTROS & LOEPP, LTD.R. Todd Hunt, Esq. 3580 Darrow RoadAssistant City Solicitor Stow, Ohio 44224Aimee W. Lane, Esq.WALTER & HAVERFIELD, LLPThe Tower at Erieview1301 East Ninth Street, Suite 3500Cleveland, Ohio 44114-1821

Attorneysfor Plaintiff City of Hudson, Ohio Attorneysfor DefendantsWilliam E. Vagas and Debra A. Vagas

Nicliolas P. Capotosto

[6973801

Co PY .,.COPY

A7TORNEYS AT LAW

HOOVER LEGAL ASSOCIATESl1 PROFE881IXNL CORPOPAnON

230 NORTH MAIN 6TREET

HUpSON. OHIO 44238T¢LEPHONH (330) 8423910

FACSIMILE (330) 342•4911EMAIL NLA®AOELPNIA.NET

July 28, 2005

VIA CERTIFIED U.S.DUIIL7005 0390.0006 3476 7519

Mr. and Mrs. William VargasOne Stokes LaneHudson, Ohio 44236

Dear Mr. and Mrs. Vargas:

We are attorneys for your neighbors, Raija and Brian Daley.

It is our understanding.that:

1. The underground water service line to your housecrosses under the Daley house, across their yard and under theirgarage;

2. There is no recorded easement or other writtendocument granting you the legal right to have your water line onthe Daley property. Instead, the Daley home was previouslyowned by a relative of a former owner of your home and theDaleys' predecessors•gave verbal permission for your-water lineto their relatives; and;

3. A water main may be located within the right-of-way ofthe lane on which your house fronts.

The Daleys are concerned about your water line continuingin its current location for several reasons, both practical andlegal'.

One practical concern.is that your water line may burst anddamage'the Daiey's property.

Exhibit1

One legal concern is that the terms and conditions of yourwater J.ine being present on the. Daley property must bedocumented since the owners of your property and the Daleyproperty are no longer related.

We suggest that the solution to this problem is that youeither immediately discontinue'use of your existing water lineon the Daley property and tap into the water main in the right-of-way or you enter into a written, revocable license agreementwith the Daleys permitting you to continue to use the existingwater line until further notice by the Daleys on terms andconditions which will protect the Daleys.

If neither of the above options are acceptable to you, wehave advised our clients that they should commence legal actionin the Summit County Common Pleas Court to obtain an order thatyou remove your water line from their property. It is our

sincere hope that litigation will not be necessary.

Please let us know how you wish to proceed at your earliest

convehience.

Thank you in advance.

DSH/dlm

cc: Clients

COPY.^ COPY

VIA CERTIFIED MAIL

September 16, 2005

Mr. & Mrs. Brian Daley132 S. Main St.Hudson, OH 44236

Dear Brian & Raya,

As was mentioned to Raya in a phone conversation with Debbie two weeks ago, we willbe removing ourselves from the waterline on your property. We will have our ownwaterline installed (we have no interest in digging a well). These are the necessary stepswe will be taking in order to protect ourselves from any further unknown liability by youor future homeowners of your property.

Step I Easement being drafted by our attomey (in process).Step 2 Obtain siguatures on easement from Cook, Stokes & Little.Step 3 File easement with the countyStep 4 Have property surveyedStep 5 Contractors out to bid on workStep 6 Approved contractor to begin work

The above procedures will take time, as mentioned to Raya, so there is no need to contactus. We will contact you after the work has been completed so that you can remove usfrom your waterline. At that time we expect you to cap the existing waterline off, at yourexpense, Qnyour nroverlv so not to damage our property.

Sincerely,

Bill and'Debbie VagasI Stokes LaneHudson, OH 44236


COPYMaistros & Loepp,

t Limited3580 Darrow Roadww, Ud 44ee4(330)688•1806

(330) 688-11031'ax

,

... `i1Vi:. fl.^11^7•,^1^.71`L\

2001 DEC -5 SD 10:23

SUh/iV10 ;;rIUNTYCLERK OF COURTS

IN THE COURT OF COMMON PLEASSIINIIIIIT COUNTY, OHIO


Plaintiffvs.


Defendants

CASE NO. 2006-11-7340

JUDGE: TEODOSIO

ANSWER TO CROSS CLAIM

*,rrr*r.a^^*^*^,rr*r,«.r.^^*r,r^*.*^^r•

VS.

BRIAN K. DALEY, et al.


Now come the Defendants, William and Debra Vagas, by and through their

counsel, and hereby answer the cross claim as follows:

1. Exhibit number one speaks for itself. These Defendants deny the balance of

the allegations contained in paragraph number one of the Cross Claim.

2. These Defendants deny the allegations in paragraph number two of the

Cross Claim.

3. These Defendants deny the allegations in paragraph number three of the

Ctoss Claim.

4. These Defendants deny the allegations in paragraph number four of the

Cross Claim.

5. Paragraph number five requires no response.

1

COPY,

6. Exhibit number one speaks for itself. These Defendants deny the balance of

the allegations contained in paragraph number six of the Cross Claim.

7. These Defendants deny the allegations in paragraph number seven of the

Cross Claim.

8. These Defendants deny the allegations in paragraph number eight of the

Cross Claim.

9. These Defendants deny the allegations in paragraph number nine of the

Cross Claim.

10. These Defendants deny the allegations in paragraph number ten of the Cross

Claim.

11. Paragraph number 11 requires no response.

12. These Defendants deny the allegations in paragraph number 12 of the Cross

Claim.


Claim.


Claim.


Claim.

16. These Defendants deny all allegations not specifically admitted herein.

FIRST AFFIItMATIVE DEFENSE

17. The Cross-Claim fails to state a claim upon which relief can be granted.


18. The New Party Defendants' claims are barred by the doctrines of laches,

waiver, and/or estoppel.

THIRD AFFIRbIATIVE DEFENSE

2

19. The New Party Defendants' claims are barred by the applicable statute of

limitations.


20. The New Party Defendants' claims are barred by the applicable statute of

repose.

FIFTH AFFIRMATIVE DEFENSE

21. The New Party Defendants' claims are barred by the New Party Defendants'

own actions.

SIXTH AFFIRMATIVE DEFENSE

22. New Party Defendants' claims are barred by the negligence or other

violation of law by the New Party Defendants.


and that all costs and legal fees be assessed against the Plaintiff.

THOMAS C. L P( 04 9)3580 Darrow RoadStow, Ohio 44224(330) 688-0560Fax (330) [email protected] for Defendants, William and DebraVagas

3

COPY


A copy of the foregoing documents was sent on December 5, 2007 via regular U.S.Mail upon:


Nicholas P. CapotostoChristopher F. CarinoBrouse McDowell388 S. Main St., Suite 500Akron, OH 44311

Attomey for Defendants, William and DebraVagas

THOMAS C. LOEPP (#0046629)

4

COF^1(

DAP!!EL M. HORRIAN

2008 FEB -8 Pn 2: 16

CLERK OFC OUfi5,


CITY OF HUDSON, OHIO, ) CASE NO. 2006-11-7340

Plaintiff,JUDGE TEODOSIO

V.


Defendants.

V.

BRIAN DALEY, et ah,

New Party Defendants.

Referee Shoemaker

NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICEPURSUANT TO OHIO CIV. R. 41(A)(1)

Now comes Plaintiff, by and through counsel, and hereby serves its Notice of Voluntary

Dismissal Without Prejudice, pursuant to Ohio Civil Rule 41(A)(1). This is the first such. Notice

of Dismissal for Plaintiff.

$26365-I


Charles T. Riehl (I{•,eg. No. 0010971)Email: [email protected] Dial: 216-928-2895

R. Todd Hunt (Reg. No. 0008951)Email: [email protected] Dial: 216-928-2935

Aimee W. Lane (Reg. No. 0071392)Email: [email protected] Dial: 216-928-2985

WALTER & HAVERFIELD LLPThe Tower at Erieview1301 East Ninth Street, Suite 3500Cleveland, Ohio 44114-1821Telephone: 216-781-1212Facsimile: 216-575-0911

Attorneysfor Plaintiff City ofHudson. Ohio


A copy of the foregoing Notice of Voluntary Dismissal was hand delivered on this 8th

day of February, 2008 to Thomas C. Loepp, Esq., Maistros & Loepp, Ltd., 3580 Darrow Road,

Stow, Ohio 44'124 and to Nicholas P. Capotosto, Esq., Brouse McDowell, 388 S. Main Street,

Suite 500, Akron, OH 4431-4407.

Charles T. Riehl (Rdg. No. 0010971)Counselfor Plaintiff

25263as•t

COPYMaistYos & f.oepp,

^ Limited3580 Darrow RbadStow, OH 44224(330)688-I806

(330) 688-1103 Fax

(9

F

9^OFtc,^^RSIN THE COURT OF COMMON PLEAS

SIIIVIAIIT COUNTY, OHIO


Plaintiffvs.

WILLIAM E. VAGAS, et aL

Defendants

CASE NO. 2006-11-7340

JUDGE: TEODOSIO

MOTION FOR LEAVETO FILE A COUNTERCLAIMAGAINST CTTY OF HUDSON

*k*********#*k##*********k***###

Now come the Defendants, William E. And Debra A. Vagas, by and through their

counsel, and hereby move this Court to for leave to file their Counterclaim against the City

of Hudson.

These Defendants request that this Court grant them leave to file their

Cotmterclaim, instanter in light of the fact that they have learned, through the discovery

process in this matter, that there was no legal basis, whatsoever, for the City of Hudson to

have filed suit against the'Vagases, and that the City of Hudson had actually acted on

behalf of and brought suit against the Vagases on the behalf of Brian K. and Raija Daley.

The actions of the City of Hudson violate Civil Rule 11, Ohio Revised Code §

1983, and also it is now obvious, that the City of Hudson was wrongfully interfering in a

private dispute between the Vagases and the Daleys.

WHEREFORE, Defendants William E. And Debra A. Vagas pray that this Court

grant them leave to file their Counterclaim against the Ci,ty.of Hudson.

I

I

EXHIBIT

OPY

mitted,STROS & AOEPP, LTD.

TI ^M C.I -EVP (#0046629)3580 Darrow oadStow, Ohio 44224(330) 688-0560Fax (330) [email protected] for Defendants William E. AndDebra A. Vagas


A copy of the foregoing documents was sent on February 8, 2008 via regular U.S.Mail upon:

Charles T. RiehlR. Todd HuntAimee W. LaneWalter & Haverfield LLPThe Tower At Erieview1301 East Ninth St., Ste 3500Cleveland, OH 441 14-1 82 1

Nicholas P. Capotosto

Brouse McDowell

388 S. Main St. Suite 500

Akron, Ohio 44311

T OMA C. LOEPP ( 00 6629)Attorney for Defendants William E. And

Debra A. Vagas

2

COPYMaistrf s & Loepp,

L mted ^-

3580 Y W R^adStuw, 0 4422a(330) 688-1806

(330) 688-1103 Fax



Plaintiffvs.


Defendants

vs.

BRIAN DALEY, et al.

CASE NO. 2006-11-7340

JUDGE TEODOSIO

MOTION FOR SANCTIONS

*r*a,t*«*^^*^*^ar+*^^^**r^^,^*,r,w*+ .

Now come the Defendants, William and Debra Vagas, by and through their

counsel, and hereby move this Court, pursuant to Civil Rule I 1 and R.C. 2323.51 for an

Order that the Plaintiff, City of Hudson, and its counsel have committed frivolous conduct,

and award to these Defendants sanctions with respect to same.


I

lly submitted,& LOEPP, LTD.

THGMQ C. LOEPPT#0046629)3580 D ow RoadStow, O 'o 44224(330)688- 560Fax (330) [email protected] for Defendants, William and DebraVagas


A copy of the foregoing documents was sent on February 18, 2008 via regular U.S.Mail upon:

Charles T. RiehlR. Todd HuntAimee W.LaneWalter & Haverfield LLPThe Tower At Erieview1301 East Ninth St., Ste 3500Cleveland, OH 44114-1821

Nicholas P. Capotosto

Brouse McDowell

388 S. Main St. Suite 500

Akron, Ohio 44311

^-,THOMAS C. L (#0046629)Attorney for Defendants, William and DebraVagas

2

Dp,N1Eti 1^4. NORRIC*

2000 FEB 29 AIR IOt 56OURT OF COMMON PLEAS^^g

SuMMIj ^'`- ^y^MMIT COUNTY; OHIORK OF CAU^LE

CITY OF HUDSON, OHIO )CASE NO: CV-2006-11-7340

Plaintiff,

V.


Defendants,

) JUDGE TEODOSIO)

MAGISTRATE SHOEMAKER)))

MEMORANDUM IN OPPOSITION TO MOTION TO CONSOLIDATE

Introduction. Co-Defendants William and Debra Vagas (the "Vagases") ask this Court

to consolidate the remaining claims in this case with the claims that they filed against the City of

Hudson (the "City") in case number CV-2008-02-1460. While the two cases stem from the same

waterline, the Vagases' claims against the City and the claims in this case do not involve

common questions of law or fact. Further, consolidation of the two cases significantly increases

the risk of unfair prejudice, the potential for jury confusion, and the cost of litigation.

Accordingly, this Court should deny the Vagases' motion.

Background On November 14, 2006, the City filed its complaint against the Vagases

seeking declaratory judgment (Case No. CV-2006-11-7340). On September 26, 2007, this Court

ordered that the City join Brian and Raija Daley (the "Daleys"), as party-defendants to this

proceeding. The City complied by filing an Amended Complaint that sought a declaration that

its' Ordinance was valid and that the Vagases were in violation of the Ordinance.]

'The City alleged that Section 1040.07 of its' Codified Ordinances prohibits, in certaincircumstances, more than one water meter on one water service line. The separate metersservicing the humes of the Vagases' and the Daleys are on one water service line.

I

On October 9, 2007, the Vagases filed a cross-claim against the Daleys alleging that they

owned an easement in the waterline, On November 20, 2007, the Daleys timely filed their

answers to the City's Amended Complaint and to the Vagases claim of an alleged easement.

Further, the Daleys filed a cross-claim against the Vagases alleging breach of contract, based

upon the Vagases' failure to remove themselves from the.waterline as they had promised.

On February 8, 2008, the City dismissed its claims, without prejudice. All that remained

in this case were the Vagases' claim of an alleged easement and the Daleys' claim for breach of

contract.

On February 19, 2008, the Vagases filed an independent case against the City (Case No.

CV-2008-02-1460) alleging claims under Rule 11, R.C. § 2323.51, and 42 U.S.C. § 1983. The

Vagases simultaneously filed in this case a motion to consolidate the two cases.2

Consolidation Is Inappropriate Under Rule 42. The only similar fact in these two cases

is that they involve the same waterline. However, the relevant issues of law and fact strongly

diverge from that point. The Vagases allege that they own a prescriptive easement. Meanwhile,

the waterline runs underneath the Daleys' home. Thus, even if the Vagases could establish that

they have a prescriptive easement (which they cannot), the waterline canno; continue to exist in

its current location. This is precisely why the Daleys demanded that the Vagases remove

themselves from the waterline and why the Vagases agreed to comply with the Daleys' demand.

Yet, the Vagases failed to follow-though with the promises that they made, which forms the

basis for the Daleys' breach of contract claim.

In the separate lawsuit, the Vagases' claims against the City have nothing to do with an

' In their motion to consolidate and in an effort to show that the two cases involve the sameparties, the Vagases mistakenly state that the City is the Plaintiff in this case (Case No. CV-2006-11-7340). However, that assertion is untrue as the City voluntarily dismissed its claimsand is no longer a party at all to this proceeding.

2

COPY •

alleged prescriptive easement or the Vagases' contract breach. They allege claims under Rule 1 I

(sanctions), R.C. § 2323.51 (frivolous conduct), and 42 U.S.C. § 1983 (civil rights) and seek

$25,000 in compensatory damages and $100,000 in punitive damages against the City.,The

questions of law in this case (an alleged prescriptive easement and breach of contract) could not

be more different than the purported frivolous conduct and civil rights violations. The City's

deliberations and the decisions made by it or its counsel in enforcing its Ordinance have nothing

to do with the facts surrounding the alleged easement or the contract. Therefore, the Court

should deny the Vagases's motion because consolidation is inappropriate under Rule 42 and

Local Rule 16.

Unfair Prejudice and Confusion. Consolidation of the two cases will cause unfair

prejudice to the Daleys, jury confusion, and increase the cost of litigation. The Daleys will be

unfairly prejudiced because the allegations against the City are so different from the questions of

law in this case. The Vagases' claims against the City sound in tort; they allege that they are

entitled to compensatory and punitive damages and even seek sanctions. The Vagases' witch-

hunt against the City has nothing to do with the real property dispute involving the Daleys.

The Vagases' goal in consolidating the two cases can be only to cause jury confusion and

to complicate straightforward issues of real property and contract law. Specifically, the Vagases

are trying to obfuscate clear and distinct legal issues with alleged frivolous conduct and civil

rights violations. Commingling these issues will blur otherwise clear legal issues causing the

potential for jury confusion.

While consolidating two cases has the possibility of promoting judicial economy, no

savings will be realized by consolidating these cases. The claims between the Vagases and the

Daleys are straightforward, should require limited discovery, and may be capable of resolution

3

on summary judgment. The Vagases' witch-hunt against the City on the other hand, likely will

encompass lengthy discovery, voluminous resources, and may be incapable of early resolution.

Accordingly, judicial economy warrants that the cases not be consolidated.

Conclusion. Based upon the points and authorities above,this Court should deny the

Vagases' Motion to Consolidate.

Respectfiilly submitted,

Nicholas P. Capotosto (0076436)Christopher F. Cariiio (0079445)BROUSE McDOWELL388 S. Main Street, Suite 500Akron, Ohio 44311-4407(330) [email protected],brouse.com

Attorneys for Defendants Brian K. Daleyand Raij a Daley

4

CQPY,



Mail on this 29th day of February 2008, to the following parties:

Charles T. Riehl, Esq. Thomas C. Loepp, Esq.City Solicitor MAISTROS & LDEPP, LTD.R. Todd Hunt, Esq. 3580 Darrow RoadAssistant City Solicitor Stow, Ohio 44224Aimee W. Lane, Esq.WALTER & HAVERFIELD, LLP • . .The Tower at Erieview1301 East Ninth Street, Suite 3500Cleveland, Ohio 44114-1821

Attorneysfor City ofHudson, Ohio Attorneys for DefendantsWilliam E. Vagas and Debra A. Vagas

707790

5

COPY

Daej- M. yORRIG,W

20008 MAR - 3 PFi 12^ 04

Sil,s',WT COJj^lIYCLCRK OF COUfiTS


CITY OF HUDSON, OHIO,

Plaintiff,

V.


Defendants.

V.

BRIAN DALEY, et al.,

New Party Defendants.

CASE NO. 2006-11-7340

JUDGE TEODOSIO

Referee Shoemaker

CITY OF HUDSON'S BRIEF IN OPPOSITION TO DEFENDANTS WILLIAM E.VAGAS AND DEBRA A. VAGAS' MOTION FOR SANCTIONS

INTRODUCTION:

Defendants William E. Vagas and Debra A. Vagas' Motion for Sanctions must be denied

by this Court because Defendants have failed to make any statements in support of the motion as

required by Ohio Civ. R. 7(B) and Local R. 7.14(A), and Ohio case law interpreting Ohio Civ. R.

11 and R.C. 2323.51. Additionally, the City of Hudson filed the Complaint in this action with

527833-1

EXHIBITA aa

the good faith belief that the cause of action was warranted by the facts and applicable law.

Consequently, Defendants' Motion for Sanctions must be denied.

STATEMENT OF RELEVANT FACTS:

With respect to the City of Hudson ("City"), this case involved nothing more than the

City's attempt to enforce its applicable local regulations adopted pursuant to the City's police

powers granted by Article XVIII, Section. 3 of the Ohio Constitution, and for the protection of

the public health and safety.

Section 10 of the Rules and Regulations for the operation of the City's Water Department

reads as follows:


Section 1040.07 of the Codified Ordinances of the City of Hudson further provides:

The Manager may make and enforce such rules and regulations as may bedeemed necessary for the safe,.economical and efficient management andprotection of the Municipal water system, for the construction and use ofwater lines and facilities, for connections to the water system, and for theregulation, collection, rebating and refunding of charges or rentals,provided that such rules and regulations are not in conflict with anyMunicipal ordinanca. No person shall violate or fail to comply with anysuch rule or regulation.

In 2005, the City learned that the water line servicing Defendants' property is fed from a

tie-in to the water line and meter servicing their neighbor's property' in contravention of certain

rules and regulations of the City's Water Department. [Complaint ¶s8-10] The City attempted

to enforce its local regulations with respect to Defendants' property and, on January 24, 2006,

1 Defendants' neighbors are New Party Defendants Brian K. Daley and Raija Daley (the"Daleys").

2521833-i

LOPY

the Defendant William Vagas called Priscilla Blarlchard and indicated he would remedy the

situation as soon as he obtained an easement from the owners of the private drive next to his

property. He further admitted that his attotney indicated he did have an actual legal claim to his

argument that he owned the water line in the Daleys' property. [See, Exhibit A attached hereto.]

Further, on February 20, 2006, Mr. Vagas wrote the City Law Director indicating he would

remedy the situation after he obtained the easement. [See, Exhibit B to Amended Complaint.]

Further, after Mr. Vagas reneged on his commitment to install a new water line to his

house, Mr. Vagas made the claim that he has an implied prescriptive easement across the Daleys'

property. This claim is directly contrary to Ohio Supreme Court precedent. For example,

Renner v. Johnson, 2 Ohio St.2d 195 (1965) in syllabus 3, the Ohio Supreme Court held:

Such an equitable right [of an implied easement] is not enforceableagainst a bona fide purchaser for value who has no actual or constructivenotice of such easement [i.e., the Daleys]. (Emphasis added.)

See, also, Campbell v. Great Miami Aerie No. 2039 (1984), 15 Ohio St.3d 79, 80 & 83. Despite

making the representation to the City that they intended to install a new water line to correct the

problem, the Defendants failed to do so and, consequently, their property continues to violate the

City's local regulations. [Complaint ¶s12-17; Exhibits A-C & E.]

At all times relevant to this matter, the City took the position that Defendants' continued

use of the water line at issue, in contravention of its local regulations, created a significant health

and safety hazard. [Complaint ¶s11 & 22.] In faot, Mrs. Vagas admitted in her deposition that

on one oocasion, when the Daleys were having work done on their house, they were without

water at least over night and had tallced about going up to an exercise club to take a shower so

that they could go to work. [See, Debra Vagas deposition at pages 6-7, Exhibit B attached

hereto.] In the interest of enforcing its local police regulations and protecting the public health

$27833•I3

and safety, the City filed the Complaint in this case seeldng a declaratory judgment from the

Court with respect to the rights and obligations of the City, Defendants and the Daleys under the

local regulations. [Complaint ¶s23-26; p. 6.] The City also sought injunctive relief. [Complaint

¶s27-29; p. 6.]

The Defendants and the Daleys subsequently filed cross-claims against each other

conceming the use and maintenance of water line in question: On February 8, 2008 the City

voluntarily dismissed its claims pursuant to Ohio Civ. R. 41(A)(1).

LAW & DISCUSSION:

Defendants' Motion for Sanctions must be denied because it fails to comply with the

general requirements for filing a motion, it fails to sufficiently allege a violation of Ohio Civ. R.

11 or R.C. 2323.51 and, most importantly, there is no evidence in the record of bad faith or

frivolous conduct on the part of the City or its counsel.

Defendants' Motion for Sanctions states in total:

Now come the Defendants, William and Debra Vagas, by and throughtheir counsel, and hereby move this Court, pursuant to Civil Rule 11 andR.C. 2323.51 for an Order that the Plaintiff, City of Hudson, and itscounsel have committed frivolous conduct, and award to these Defendantsactions with respect to same.

Ohio Civ. R. 11 ("Rule i i") generally provides that when an attorney signs a pleading, he

certifies that he has read the pleading, that to the best of his "knowledge, information, and belief

there is good ground to support it", and that the pleading was not filed for the purpose of delay.

In order to be awarded attomey's fees and expenses under Rule 11, the moving party must show

that the alleged violation was willful and not mere negligence. Nationrent dba Central Rent-All

v. Michael Construction Co., Summit App. No. 20755, 2002-Ohio-1380, 111 (Appx. 1).

327833•14

COPY,

Pursuant to R.C. 2323.51(B), a party claiming to have been adversely affected by

"frivolousconduct" may file a motion for an award of court costs, reasonable attorney's fees and

othpr litigation expenses. When considering a motion filed under R.C. 2323.51(B), the court

musthold a hearing and determine: (1) "whether particular conduct was frivolous"; (2) and if

the conduct was frivolous, "whether any party was adversely affected by it"; and (3) the amount

of any award. (Emphasis added)

Defendants' Motion for Sanctions must be denied for the reason that it fails to set forth '

any statements in support of the relief requested. There can be no question that filing a motion

pursuant to Rule 11 and R.C. 2323.51 which seeks an order of the court imposing sanctions

against opposing counsel for alleged frivolous conduct is a serious charge and should not be

done without great reservation. Yet, Defendants had the audacity to file just this kind of motion

against the City and its counsel with nothing more than a blanket statement containing no

substance or support.

It is a basic principle of motion practice that a motion must state "with particularity" the

grounds upon which the motion is based, including citations to legal authority, and the relief

requested. [See, Civ. R. 7(B) and Local Rule 7.14.) Wlille Defendant's motion cites Rule 11

and R.C. 2323.51, noticeably absent are any statements setting forth the grounds for the motion.

For this simple reason, Defendants' Motion for Sanctions must be denied.

In addition, Defendants Motion for Sanctions fails to assert a Rule I1 violation.

Defendants do not point to any evidence in the record of bad faith on the part of the City or

City's counsel, let alone that a willful Rule 11 violation occurred. Nationrent, supra, 2002-Ohio-

1380at¶slland12.

527833•15

Defendants' Motion for Sanctions further fails to identify "particular conduct" necessary

for the Court to consider the motion at a hearing under R.C. 2323.51(B). The Ninth District

Court of Appeals has said that a court may deny a motion for sanctions without a hearing where

the moving party provides "* ** absolutely not basi`s for sanctions." Decarlo v. MacDowell, et

al.1 (2006), 167 Ohio App.3d 131, 135; see also, Fi?works tioldings, L.L.C. v. Pitchfordel (May

24, 2007), Cuyahoga App. No. 88634, 2009-Ohio-2517, P16 (Appx. 2) ( "In the instant case, we

find no basis for the '►mposition of sanctions. There is nothing in the record to indicate that

Fitworks' attomey acted in bad faith or participated in frivolous conduct.") Such is the case with

Defendants' Motion for Sanctions. Defendants have provided "absolutely no basis for

sanctions". Consequently, Defendants' motion must be denied.

In the instant case, the City pursued a cause of action supported by the facts and

applicable law. See, Renner v. Johnson, supra; Campbell v. Greater Miami Aerie No. 2309,

supra. The detemiination of whether to bring such an action in enforcement of a municipality's

safety ordinance falls within the broad discretion of the municipality's legal counsel. See, State

v. Adams, Summit App. No. 99CA007478, 2000 Ohio App. LEXIS 4691, *9-1l(Appx. 3). The

duties and actions of the City Solicitor in this case are similar to the duties and actions of a

municipal prosecutor and are "governmental functions" for which the City and its City Solicitor

are immune from liability under R.C. Chapter 2744. See, R.C. 2744.01(C)(1) &(C)(2)(f);

Abdalla v. Olexia, Jefferson App. No. 97-JE-43, 1999 Ohio App. LEXIS 4806, at 24-25 (Appx.

4); R.C. 2744.03(A)(1); and Railroad Ventures, Inc. v. Drake, et al. (2000), 138 Ohio App.3d

315 (finding executive director of port authority was immune from liability under the defense

provided in R.C. 2744.03(A)(6)).

527633-16

The current state of Defendants' property violates the City's Water Department

regulations. The City took appropriate action in 2006 in an attempt to enforce its local

regulations, with respect to Defendants' property. When Defendants resisted the City's efforts,

the City exercised its right, pursuant to R.C. 2721.03, to seek a declaration of the Court with

respect to the legal rights and duties of the City, Defendants, and the Daleys under the local

regulations at issue. In addition, "the right to dismiss pursuant to Civ. R. 41(A)(1)(a) is absolute

and therefore, such conduct cannot properly be considered `frivolous."' Nationrent, supra,

2002-Ohio-1380 at ¶21, citing Sturm v. Sturm (1992), 63 Ohio St.3d 671, 675. Accordingly,

Defendants' Motion for Sanctions must be denied.

CONCLUSION:

For the foregoing reasons, Defendants' Motion for Sanctions must be denied by the

Court. Defendants fail to state any basis for the motion and further fail to point to any evidence

in the record of bad faith or frivolous conduct ou the part of the City or its counsel. In fact, there

is no such evidence in the record because the City filed the Complaint in this case with the good

faith belief that it was supported by the facts and applicable law.


Charles T. Riehk(Reg. No. 0010971)Email: [email protected] Dial: 216-928-2895

R. Todd Hunt (Reg. No. 0008951)Email: [email protected] Dial: 216-928-2935

Aimee W. Lane (Reg. No. 0071392)Email: [email protected] Dial: 216-928-2985

I

527833-1 7

WALTER & HAVERFIELD LLPThe Tower at Erieview1301 East Ninth Street, Suite 3500Cleveland, Ohio 44114-1821Telephone: 216-781-1212Facsimile: 216-575-0911

Attorneysfor Plaintiff City ofHudson, Ohio


A copy of the foregoing City ofHudson's Brief in Opposition to Defendants William E.

Vagas and Debra A. Vagas' Motion for Sanctions was served on this 29"' day of February, 2008

to Thomas C. Loepp, Esq., Maistros & Loepp, Ltd., 3580 Darrow Road, Stow, Ohio 44224 and

to Nicholas P. Capotosto, Esq., Brouse McDowell, 388 S. Main Street, Suite 500, Alaon, OH

4431-4407.

Charles T. Riehl (Reg^ No. 0010971)Counseifor City of Hudson

527833-I 8

OPY

From: Blanchard, Priscilla [[email protected]

Sent: Tuesday, January 24, 2006 3:57 PM

To: Charles T. Riehl

Cc: Elliott, Doug

Subject: FW: Bill Vagas

Page 1 of 1

Chuck: I spoke with Mr. Vagas today about the water line issue with his neighbor W. Daley. He sayshe has been trying to get an easement on the drive for a waterline from the Stokes, however, it has takenquite some time because, since the death of Mr. Art Stokes, the property has been tied up in ProbateCourt. He intends to install a 2" waterline up the drive and the Stokes will be allowed to run off thisnew line in exchange for the easement for water and sewer purposes.. They have refused to allow W.Vagas to tap into the existing line due to its deteriorating condition. To put it mildly, he is NOT a fan ofMr. Daley's and wanted to know why Mr. Daley didn't receive an order as well.

I asked him if he had asked his attomey why he could not claim ownership due to the dates of therespective structures, and he indicated that the fact that this line was on Daley's property would make ithard to win an argument over ownership for him.

I told him that I would let you know and that I appreciated his cooperation and that I would recommendthat all fees for this line and hook-up to his house would be waived as he currently has service. I surehope you will back me up on this one.

I will email Mr. Daley and let him know that this issue is resolved as far as the city is concemed and thatthe waterline will be put in during construction season once the easement is able to be executed.

EXHIBIT

^_^-

Maistros & Loepp,. Limited

3580 Darrow Road

Stow, OH 44224

(330) 688-1806

(330) 688-1103 Fax

. r. ....:,. IY.^ I^.^. I

2008 P1AR -6 AM 8: 0 e

SUPIii^iT ;;^uNiYCLERK UF COYW^6 COURT OF COMMON PLEAS

SUMMIT COUNTY, OHIO

vs.


Defendants

CASE NO. 2006-11-7340

JUDGE: TEODOSIO

ORDER FOR LEAVETO FILE REPLY BRIEF

**^*a,^..*^****^^**,e*^^,c^>t^k^****

This matter came on for consideration upon the Motion for Leave to File their

Reply Brief, instanter, with respect to the Motion for Sanctions. Upon due consideration,

and for good cause shown, it is hereby

ORDERED, ADJUDGED AND DECREED that the leave be granted for the

Defendants William E. And Debra A. Vagas to file their Reply Brief.

IT IS SO ORDERED.

APPROVED:


Plaintiff

TH AS C. LOEPP (#0046629)Atto ey for Defendants William E. And Debra A. Vagas

I

In Efje 6upreme Court ®f ®fjiu Exhibit 6 Defendants' Reply Brief in Support of Motion to Dismiss...

Documents

Transcript of In Efje 6upreme Court ®f ®fjiu Exhibit 6 Defendants' Reply Brief in Support of Motion to Dismiss...