[Cite as State ex rel. Yost v. Settlers Walk Home Owners Assn., 2022-Ohio-3106.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY STATE OF OHIO, EX REL. DAVE YOST, : ATTORNEY GENERAL : CASE NO. CA2021-11-102 Appellee, : OPINION 9/6/2022 - vs - : : SETTLERS WALK HOME OWNERS ASSOCIATION, et al., : Appellant. CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 19 CV 92490 Scott Myers, Assistant Attorney General, and Daniel J. Martin, for appellee. Pickrel, Schaeffer & Ebeling, Co., and Michael W. Sander, for appellee, MCS Land Development, LLC. Scott G. Oxley Co., LPA, and Scott G. Oxley, for appellant. HENDRICKSON, J. {¶1} Appellant, Settlers Walk Home Owners Association ("the Association"), appeals from the decision of the Warren County Court of Common Pleas granting summary judgment in favor of appellee, MCS Land Development L.L.C. ("MCS"), as to MCS's cross- claim for indemnification against the Association. For the reasons detailed below, we reverse the decision of the trial court, and remand the matter for proceedings consistent Warren CA2021-11-102 with this opinion. Description of the Properties at Issue {¶2} This case involves the ownership, maintenance, and repair of the Remick Lake Dam ("the Dam"), a Class I earthen dam located on a tributary to Clear Creek in Warren County. The Dam is considered a Class I high hazard structure due to its potential downstream hazard. Ohio Adm.Code 1501:21:13-01(A)(1). Based upon the Dam's Class I designation, any sudden failure of the Dam would result in the probable loss of life and flooding of high value property downstream. Relevant here, the properties downstream from the Dam include public roadways, a strip mall, eight homes, and a daycare facility. {¶3} Remick Lake is located in Warren County parcel number 0409371019, which has been owned by the Association since 1998. The parcel containing Remick Lake is located on the northwestern edge of a residential neighborhood ("Settlers Walk") and borders several residential homes, other property owned by the Association, and property now owned by MCS. In 2001, MCS purchased Warren County parcel number 0409371046, which borders the west side of Remick Lake, the Association's property, and houses in Settlers Walk. MCS's parcel primarily consists of a community shopping center, which is part of the strip mall mentioned above, as well as a retaining wall and an access road. MCS's parcel borders the entirety of the Association's property between Remick Boulevard and Lytle Five Points Road. {¶4} The Dam has been in place since approximately 1966, yet the physical location of the Dam is disputed by the parties. We note that, pursuant to Ohio law a "dam" means "any artificial barrier together with any appurtenant works, which either does or may impound water[.]" Ohio Adm.Code 1501:21-3-01(I). The term "appurtenant works" means "interrelated elements or components of the dam including * * * outlet works and spillway channels." Ohio Adm.Code 1501:21-3-01(B). In accordance with these definitions, the -2- Warren CA2021-11-102 Association readily admits that part of the Dam is located on …
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