Helfrich v. Foor Family Invs.

1

2022-Ohio-3446

JAMES HELFRICH, Plaintiff - Appellant v. FOOR FAMILY INVESTMENTS, LLC, et al. Defendants - Appellees

No. 2021 CA 00070

Court of Appeals of Ohio, Fifth District, Licking

September 29, 2022

Appeal from the Licking County Court of Common Pleas, Case No. 2018 CV 00245

For Plaintiff-Appellant

JAMES HELFRICH, Pro Se

For Plaintiff-Appellant for Counterclaimee

TODD M. ZIMMERMAN

STEPHEN E. HOUSE

Rohrbachers Cron Manahan Trimble & Zimmerman Co., LPA

For Defendants-Appellees Foor

Family Investments

JOHN C. ALBERT

Crabbe Brown & James, LLP

For Defendants-Appellees B. Carr Farms, LLC

JOSHUA R. BILLS

Pelini Campbell & Ricard, LLC

JUDGES: Hon. Earle E. Wise, P.J. Hon. John W. Wise, J. Hon Craig R. Baldwin, J.

OPINION

Baldwin, J.

{¶1} Appellant, James Helfrich, appeals the decision of the Licking County Court of Common Pleas directing a verdict in favor of Appellee, Foor Family Investments, LLC, (Foor) as well as the trial court's denial of his motion for a directed verdict regarding a counterclaim. He is also appealing the jury's verdict in favor of Appellee and several interlocutory rulings of the trial court.

STATEMENT OF FACTS AND THE CASE

{¶2} Helfrich and Foor own parcels of property that abut each other and upon which farms have existed for several years. Foor installed a systemic tile network on its farm to address drainage and connected it to a ten inch diameter tile that ran across Helfrich's property and emptied into a pond. This new tile system replaced drainage tiles that had been in existence and operating for over fifty years at the time of the installation. The ten inch tile was present in Helfrich's property and had served as an outlet for the known life of the system until September 2017 when that tile no longer accepted the drainage from the Foor property. Foor installed a standpipe at the border with Helfrich's property and water flowed up and out of that pipe on to the ground. The flow from that standpipe spread over Foor's and Helfrich's property, causing Helfrich to pursue legal remedies and ultimately leading to this appeal.

{¶3} Helfrich planned to purchase the farm at Hollow Road in 2015 when he discovered holes in the farm field that he attributed to the drain tile that ran from the Foor property through the property he planned to purchase and emptied into a pond. He contacted Foor about repair of the tile in a letter dated July 6, 2015:

I have or will be purchasing the property at 10012 Hollow Road, Pataskala, Ohio, which was formerly owned by Richard and Melinda Smith. You, Foor Family Investments, currently own the property to the east. There is field tile that runs from your property across the property at 10012 Hollow Road. Most, if not all, is plugged or has blown through causing liability and hazards to the property at 10012 Hollow Road. Please let me know if you will pay the cost of the field tile repair or replacements for the tiles that will and have benefited your property, and/or if you will cost share the field tile replacement that will benefit both of our properties -- both your property and mine. Simply stated I'm not going to spend my money to repair or maintain the field tile that comes from your property or benefits your property. Please let me know in the next few weeks if you will pay for or repair the field tile. Otherwise, I will assume that you, Foor Family Investments, have abandoned the drain tile.

Trial Transcript, p. 175, lines 1-21.

{¶4} Ronald Foor responded to the letter and asked that Helfrich contact him after the crops had been harvested from the field surrounding the defects in the tile and there is no evidence that Helfrich objected to the delay. Helfrich did not contact any representative of Foor and neither Ronald Foor or any representative from Foor contacted Helfrich. The record is not clear on this issue, but it appears that Foor assumed, due to lack of complaint by Helfrich, that Helfrich had made repairs.

{¶5} Bob Carr, principal of appellee B.Carr Farms, LLC (Carr), worked for Foor and was investigating repairs of the tile drainage system on the Foor farm. After discussing the matter with Foor, plans were made to update the fifty year old tile drainage network with a new, systemic network using corrugated plastic pipe in place of clay pipe. The goal was the more efficient draining of the property, decreasing erosion and contamination, and reducing the burden on the drainage system while still effectively draining the property.

{¶6} The new plan did not alter the direction or flow of the water from the Foor farm. Though new corrugated pipe was installed and new drainage network was comprised of a greater amount of pipe, the amount of water that would pass through the system remained the same. The water would move slower as a result of the corrugations in the pipe, thus reducing the burden on the drain tile that passed through Helfrich's property. Further, the new system directed the water to a ten inch drain in the same location on the Foor property that connected with the ten inch drain on the Helfrich property. This ten inch line had existed for over fifty years and had been maintained by Foor and its predecessors in title by making repairs on its farm as well as on the farm currently owned by Helfrich. The identity of the person who installed the ten inch line across the Helfrich property, when the line was installed and whether there was a pre-installation agreement is unknown.

{¶7} Foor offered to install a new ten inch drain tile on the Helfrich farm, but Helfrich refused to allow the installation, characterizing the request as seeking an easement across his property. Foor did not agree that he was seeking an easement, but only asking to replace the older line.

{¶8} Foor proceeded with the design and installation of the new tile system on its property, retaining Vince Chrisman for the design and appellee B.Carr Farms, LLC (Carr) for the installation. Chrisman, an expert in the field of agricultural drainage with several years of experience, created a blue print for the installation of the new drainage system that included more tile than had been installed in the old system, but was designed to connect to the same ten inch tile that was used by the old system. Chrisman explained that his design, including the connection to the ten inch line, followed the natural contour and flow of water on the land. He explained that the water would follow this path and flow onto Helfrich's property if the drainage system was not available. He also stated that the drainage system that Foor installed would benefit Helfrich as it decreased the speed of the flow of the water and the burden on Helfrich's drainage, would reduce the amount of erosion and help prevent contamination. Chrisman's comments were contingent upon the drain running through Helfrich's property continuing to accept water.

{¶9} Stasel Osborn, an employee of Carr, was working on the installation of the tile system on the Foor property. He exposed the ten inch drain tile on the Foor farm, near the boundary between the Foor and Helfrich properties and confirmed that water was freely flowing sometime before September 25, 2017. On that day, as he was driving by the two properties, he noticed Helfrich working with a small backhoe near the area where the ten inch tile passed from the Foor property to the Helfrich property. He turned around and drove out into the field on the Foor side of the boundary and watched as Helfrich continued to excavate and fill in a location that Osborn was convinced was directly over the location of the ten inch drain. Osborn was further convinced that Helfrich was blocking the drain, based upon the location of his excavation and the fact that water was no longer flowing through the ten inch drain, but was welling up from the exposed tile and flowing over the property.

{¶10} While Helfrich denied taking steps with the intent of blocking the ten inch drain, he did admit that he filled holes he had asked Foor to repair and that he "* * * dug the dirt away, and anything I could find at the beginning, I threw down there. When they asked what I put in there, I said, "I don't care what it was. I filled the hole with shoes, with rocks, license plates, anything. It didn't matter to me what I put down there." (Trial Transcript, p. 162, lines 9-14). He explained that he took this step to protect his family, friends and livestock from the hazards of the holes in the field. He also admitted that he could have repaired the defect in the tile that caused the hole or called Ron Foor and ask that he make repairs, but he chose to do neither. (Transcript, p. 255, line 24 to p. 256, line 25).

{¶11} The parties exchanged multiple emails regarding the flow of water in which Helfrich threatened litigation regarding the flow of water onto his property, but never reached an agreement. Helfrich filed a complaint against Carr and Foor regarding "excessive and harmful drainage of subsurface water across property owned by the Plaintiff, James Helfrich." (Complaint, March 5, 2018, p. 1). Helfrich references nine causes of action in his complaint, all of which are related to the flow of water from the Foor property to the Helfrich property. Foor filed an answer and a counterclaim for damages seeking the establishment of an easement. The case proceeded toward trial and, in April 2019, Helfrich's insurance company retained counsel to represent him on the counterclaim only. Foor and Carr moved for summary judgment and both motions were denied.

{¶12} Trial was scheduled to begin on March 9, 2020, but was continued on the request of Foor. Helfrich appeared that morning and filed a notice of dismissal of all claims against Carr, causing Foor to seek leave to...