Opinion
Court of Appeals No. WD-17-061
06-29-2018
Nan Wallace Appellant v. City of Rossford Appellee
Marvin A. Robon and Zachary J. Murry, for appellant. Amy M. Natyshak and Shawn A. Nelson, for appellee.
Trial Court No. 2016CV0590 DECISION AND JUDGMENT Marvin A. Robon and Zachary J. Murry, for appellant. Amy M. Natyshak and Shawn A. Nelson, for appellee. JENSEN, J.
I. Introduction
{¶ 1} This is an appeal from the judgment of the Wood County Court of Common Pleas, granting summary judgment to appellee, the city of Rossford, on appellant's, Nan Wallace, claims for trespass, ejectment, and mandatory injunction.
A. Facts and Procedural Background
{¶ 2} On October 27, 2016, appellant filed a complaint with the trial court, asserting the foregoing claims related to a dispute with appellee concerning an abandoned sewer line that runs underneath appellant's property. In the complaint, appellant alleged that she is the owner of a residence located at 337 Hillside Drive in the city of Rossford. Appellant acquired the residence from her parents' estate. Appellant has periodically lived at the residence since 1967. The residence includes a single family home and a detached garage.
{¶ 3} According to appellant, she began to notice cracks forming in the walls, foundation, and chimney of the residence in 2013, and also noticed that the concrete floor in her garage had dropped more than 12 inches. Six years prior, appellant alerted the city to certain drainage issues she was experiencing on the property that were causing her basement to flood. The city responded by installing a catch basin at the end of appellant's driveway, which was tied into a storm-water pipe that flowed underneath appellant's driveway and garage and emptied into her back yard.
{¶ 4} According to her complaint, appellant alleged that she retained professional assistance from Jim Kelly of Edward Kelly & Sons, Inc. to investigate the cause of the cracks she was observing. Upon investigation, a blockage was found inside the storm-water pipe. The issue was discovered when the manhole cover over the catch basin was removed and a camera was inserted inside.
{¶ 5} Upon discovery of the blockage, appellant filed a claim with the city, which precipitated an investigation from the city and its insurance carrier. After investigating the issue, the city denied appellant's claim. Sometime thereafter, the city installed new storm drains in front of appellant's residence, thereby eliminating the need for the storm-water pipe that ran underneath the residence. According to the city, it capped off the pipe and filled it with concrete in order that no water would flow into it. In the complaint, appellant acknowledged that water is no longer flowing through the pipe. However, appellant alleged that "the damage that was previously done has not been repaired or fixed, nor has the City of Rossford offered to repair or fix said damaged real estate and/or improvements caused by the discharge of water illegally and without permission through her property."
{¶ 6} Based upon her allegation that the city had no easement to permit the placement of the storm-water pipe underneath her residence, appellant alleged claims for trespass and ejectment, and sought a mandatory injunction to force the city to remove the pipe and to repair all damage caused by said removal.
{¶ 7} On December 28, 2016, the city filed its answer, in which the city generally denied the allegations contained in appellant's complaint, and asserted numerous defenses including statutory immunity under R.C. 2744.01 et seq. The city also asserted that appellant's claims were barred because the city had an easement pertaining to the storm-water pipe.
{¶ 8} Following the filing of the city's answer, the matter proceeded through discovery. Thereafter, on September 1, 2017, the city filed its motion for summary judgment, to which several affidavits were attached. In the first affidavit, the city's law director, Kevin Heban, stated that the city "used to be the location of the former Libbey-Owens-Ford plant. The glass plant produced cullet, which it then deposited on the surrounding areas, including the area where [appellant's] house sits."
Cullet is broken or refuse glass.
{¶ 9} In the second and third affidavits, the city's superintendent for public works, Tyler Kolb, stated that the city installed a new storm sewer system along Hillside Drive in March 2014 in an effort to alter the water flow and address street flooding issues in that area. The new sewer system was attached to the catch basin in front of appellant's property, the water flow was reversed in the catch basin, and the preexisting storm-water pipe underneath appellant's property was "capped and the bottom of the catch basin on the sidewalk adjacent to [appellant's] property was filled with cement to cover the drainage tile so water would no longer flow through the drainage tile."
{¶ 10} In the fourth affidavit attached to the city's motion for summary judgment, Patrick Altvater, a civil and municipal engineer, stated that he visited appellant's property on August 30, 2017, to investigate appellant's claims. Based upon his investigation, Altvater opined that the city met its standard of care regarding the maintenance and care of the storm-water pipe. Further, Altvater stated that the industry's standard practice when abandoning a pipe is to cap the pipe and fill it with cement or concrete rather than excavate the pipe. As to causation, Altvater found no evidence to demonstrate that the damage to appellant's residence was caused by the city. Rather, Altvater ascribed the damage to "extreme settling" that resulted from the residence being built on cullet.
{¶ 11} In its motion for summary judgment, the city argued that it was entitled to judgment on appellant's trespass claim because it was untimely filed outside the two-year statute of limitations under R.C. 2744.04(A), and also because the city was immune from such claims under R.C. 2744.02. As to its immunity argument, the city noted that appellant alleged in her complaint that the city intentionally placed the storm-water pipe and intentionally interfered with her property rights. The city argued that it was immune from liability concerning such intentional conduct.
{¶ 12} Regarding appellant's ejectment claim, the city urged that it was in lawful possession of the land in question by way of a prescriptive easement. In making its argument, the city noted appellant's acknowledgement that she had lived at the residence since 1967 without any construction of the pipe during that time. Thus, the city reasoned that it was entitled to a prescriptive easement concerning the pipe. Moreover, the city argued that it was entitled to an easement by estoppel in light of the catch basin it attached to the storm-water pipe in 2007 at appellant's request. Because of these easements, the city argued that it was entitled to summary judgment on appellant's ejectment claim.
{¶ 13} Finally, concerning appellant's request for a mandatory injunction, the city asserted that appellant could not demonstrate that immediate and irreparable harm would result if such an injunction was not granted, as the capping off of the storm-water pipe meant that no water could flow through the pipe and therefore no further damage could be done to the property. Further, the city argued that it complied with industry standards by capping off the pipe, and insisted that the removal of the pipe was unnecessary. Thus, the city averred that it was entitled to summary judgment on appellant's claim for a mandatory injunction.
{¶ 14} On October 6, 2017, appellant filed a consolidated cross-motion for partial summary judgment and memorandum in opposition to the city's motion for summary judgment. In her motion, appellant argued that her trespass claim was filed within the applicable statute of limitations. Moreover, appellant cited R.C. 2744.09 to support her contention that her trespass claim was not subject to immunity because it amounted to a takings claim under the United States Constitution.
{¶ 15} Concerning her ejectment claim, appellant urged the trial court to reject the city's claims of a prescriptive easement and an easement by estoppel. Appellant argued that the city's prescriptive easement claim must fail because the storm-water pipe was buried underground and was therefore neither open nor notorious. To the extent such an easement did exist, appellant insisted that the city abandoned the easement when it constructed the new underground storm sewer system in 2014. As to the city's easement by estoppel claim, appellant asserted that she did not mislead or entice the city into reconstructing the sewer system and therefore should not be estopped from denying the existence of an easement.
{¶ 16} In support of her mandatory injunction claim, appellant contended that she would continue to suffer irreparable harm if the court did not order the removal of the storm-water pipe from her property. Specifically, appellant stated that the pipe "has degraded and/or collapsed causing the 'slow-motion' destruction of Plaintiff's garage and surrounding property."
{¶ 17} At the conclusion of her motion, appellant argued that she was entitled to partial summary judgment on the issue of the city's liability. Moreover, appellant insisted that the city's motion for summary judgment should be denied.
{¶ 18} Upon consideration of the parties' arguments, the trial court issued its decision on the competing motions for summary judgment on November 16, 2017. In its decision, the trial court found that appellant had stated a cause of action for continuing trespass rather than permanent trespass, leading the court to conclude that the claim was not time-barred. Additionally, the court rejected the city's contention that it held a prescriptive easement and an easement by estoppel permitting it to install and utilize the storm-water pipe in question. Nonetheless, the court found that the city was entitled to immunity on appellant's trespass claim, because the exception to immunity concerning negligent conduct under R.C. 2744.02(B)(2) was inapplicable to the intentional tort of trespass.
{¶ 19} The court went on to reject appellant's ejectment claim based upon its finding that appellant has been in possession of her property at all times and was therefore not dispossessed of her property by the city. Likewise, the court determined that appellant's claim for a mandatory injunction was without merit. As to that claim, the court found that failing to excavate the storm-water pipe from appellant's property would not cause immediate and irreparable harm to appellant since the pipe had previously been capped off and abandoned by the city, thereby preventing any water from flowing through the pipe. Since no water was flowing through the pipe, the court found that the removal of the pipe would be unnecessary.
{¶ 20} Based upon its determination that the city was immune from liability concerning appellant's trespass claim and that appellant's remaining claims lacked merit, the trial court granted the city's motion for summary judgment, denied appellant's motion for partial summary judgment, and dismissed appellant's complaint. It is from this order that appellant timely appeals.
B. Assignments of Error
{¶ 21} On appeal, appellant presents the following assignments of error for our review:
1. The trial court committed reversible error by entering summary judgment in favor of the Defendant-Appellee.
2. The trial court committed reversible error by denying Plaintiff's Cross-Motion for Summary Judgment where the undisputed facts of the
case showed that Plaintiff was entitled to entry of judgment in her favor on her claims for trespass, ejectment, and the entry of a mandatory injunction.
{¶ 22} Because appellant's assignments of error are interrelated, we will address them simultaneously.
II. Analysis
{¶ 23} In her assignments of error, appellant argues that the trial court erred in granting the city's motion for summary judgment and denying her motion for partial summary judgment. Specifically, appellant contends that the city was not immune from liability on her trespass claim. Appellant also asserts that the trial court erred in its rejection of her claim for ejectment and a mandatory injunction. We will address these claims individually after reciting the appropriate standard of review.
A. Standard of Review
{¶ 24} A motion for summary judgment is reviewed de novo by an appellate court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). "'When reviewing a trial court's ruling on summary judgment the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.'" Baker v. Buschman Co., 127 Ohio App.3d 561, 566, 713 N.E.2d 487 (12th Dist.1998).
{¶ 25} In order to obtain summary judgment at the trial level,
[I]t must be determined that (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one
conclusion when viewing the evidence in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party. State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219, 631 N.E.2d 150 (1994), citing Davis v. Loopco Industries, Inc., 66 Ohio St.3d 64, 65-66, 609 N.E.2d 144 (1993); see also Civ.R. 56(C).
B. The City's Immunity Regarding Appellant's Trespass Claim
{¶ 26} Initially, appellant argues that the trial court erred in finding that her "negligent trespass" claim was subject to the city's immunity under R.C. 2744.02.
{¶ 27} When determining whether a political subdivision is immune from liability, we engage in a "three-tiered analysis." Rosenbrook v. Bd. of Lucas Cty. Commrs., 2015-Ohio-1793, 33 N.E.3d 562, ¶ 15 (6th Dist.), citing Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 10. First, we examine whether the general grant of immunity provided by R.C. 2744.02(A) applies. Id. If immunity applies, we then examine whether immunity has been abrogated by the exceptions set forth in R.C. 2744.02(B). Id. If an exception applies, the third tier involves a determination of whether the political subdivision is able to successfully assert one of the defenses listed in R.C. 2744.03, thereby reinstating its immunity. Id.
{¶ 28} Here, appellant acknowledges that the city qualifies for immunity under R.C. 2744.02(A)(1). However, appellant argues that the city's immunity has been abrogated pursuant to R.C. 2744.02(B)(2).
{¶ 29} R.C. 2744.02(B)(2) provides:
(B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:
* * *
(2) Except as otherwise provided in sections 3314.07 and 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.
{¶ 30} "R.C. 2744.02(B)(2) refers to proprietary functions and the exception applies only where injury results from negligence." Sisler v. Lancaster, 5th Dist. Fairfield No. 09-CA-47, 2010-Ohio-3039, ¶ 26. As such, courts have held that trespass claims, which are properly categorized as intentional torts, do not trigger the exception to immunity under R.C. 2744.02(B)(2). See Fink v. Twentieth Century Homes, Inc., 8th Dist. Cuyahoga No. 99550, 2013-Ohio-4916, ¶ 21, citing Barge v. St. Bernard, 195 Ohio App.3d 28, 2011-Ohio-3573, 958 N.E.2d 636, ¶ 19 (1st Dist.) ("[T]he exceptions of R.C. 2744.02(B)(1) through (B)(4) are limited to negligent conduct and do not apply to trespass or nuisance claims.").
{¶ 31} In her complaint, appellant alleged that the city "negligently placed the storm sewer line on [appellant's] property without her knowledge or consent, and without a valid easement secured through payment or other consideration." Appellant's allegation is perplexing given the fact that the storm-water pipe was installed prior to her parents' acquisition of the property in 1967. Consequently, it follows that the city would not have sought permission from appellant or her parents when it installed the pipe sometime prior to 1967.
Notably, the record contains no evidence establishing the date that the city actually installed the storm water pipe. Moreover, there is no evidence as to whether the city was granted permission to install the pipe by the individual or entity that owned the land at the time the pipe was installed.
{¶ 32} Although appellant's trespass claim was couched in a theory of negligence, the fact remains that "'[I]ntentional conduct is an element of trespass.'" Robinson v. Cameron, 12th Dist. Butler No. CA2014-09-191, 2015-Ohio-1486, ¶ 12, quoting Baker v. Shymkiv, 6 Ohio St.3d 151, 153, 451 N.E.2d 811 (1983). Because the tort of trespass addresses intentional conduct, it does not trigger the exception to immunity contained in R.C. 2744.02(B)(2). Therefore, the city is entitled to immunity on appellant's trespass claim, and the trial court properly dismissed the claim by grant of summary judgment to appellee.
Appellant also asserts that the city should not be immune on her trespass claim because the claim arose out of the city's violation of her constitutional rights protecting her against the government's appropriation of her property. Relevant here, we have previously stated: "In cases concerning claims of appropriation without compensation, mandamus is the proper procedure." Keyport Land Co. v. City of Toledo, 6th Dist. Lucas No. L-92-285, 1993 Ohio App. LEXIS 5899, *6 (Dec. 10, 1993). Because appellant has not brought a mandamus action here, we find that appellant's constitutional argument is misplaced. --------
C. Appellant's Claim for Ejectment
{¶ 33} Next, appellant argues that the trial court erred in finding that the presence of the storm-water pipe did not deprive her of the possession of her land, as required to support a claim for ejectment.
{¶ 34} The common law action in ejectment is codified in R.C. 5303.03, which provides:
In an action for the recovery of real property, it is sufficient if the plaintiff states in his petition that he has a legal estate therein and is entitled to the possession thereof, describing it with such certainty as to identify the property, and that the defendant unlawfully keeps him out of the possession. It is not necessary to state how the plaintiff's estate or ownership is derived.
{¶ 35} Ejectment is the proper remedy against one wrongfully in possession of real property. Turnbull v. City of Xenia, 80 Ohio App. 389, 392, 69 N.E.2d 378 (2d Dist.1946). Ejectment is available where the plaintiff has a legal title and is entitled to the possession of the real property but is unlawfully kept out of the possession by the defendant. Id.
{¶ 36} Here, the uncontroverted evidence demonstrates that the city is no longer in possession of appellant's property. Indeed, the record shows that the city has abandoned any interest in the storm-water pipe, and has permanently capped it off by filling it with cement. A new storm sewer system was constructed in 2014 that alleviated the flooding concerns shared by appellant and her neighbors. "'A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. Actual possession exists where the thing is in the immediate occupancy and control of the party.'" Todd v. Sailing, 12th Dist. Warren No. CA89-03-022, 1990 Ohio App. LEXIS 1559, *10 (Apr. 23, 1990), quoting Black's Law Dictionary (5th Ed. Rev. 1979) 1047. Because the storm-water pipe is no longer under the city's control, and therefore no longer in its possession, we find that ejectment is not a proper avenue for relief for appellant. Thus, the trial court properly granted the city summary judgment on appellant's claim for ejectment.
D. Appellant's Request for a Mandatory Injunction
{¶ 37} Finally, appellant argues that the trial court erred in denying her motion for partial summary judgment on her request for a mandatory injunction, and granting summary judgment to the city as to that request.
{¶ 38} "In order to obtain an injunction, a party must show by clear and convincing evidence that immediate and irreparable injury, loss or damage will result to the applicant and that no adequate remedy at law exists." Lemley v. Stevenson, 104 Ohio App.3d 126, 136, 661 N.E.2d 237 (6th Dist.1995), citing Ackerman v. Tri-City Geriatric & Health Care, Inc., 55 Ohio St.2d 51, 378 N.E.2d 145 (1978).
{¶ 39} In her complaint, appellant sought injunctive relief in the form of a court order directing the city to remove the storm-water pipe that runs underneath her property and repair or replace any damage done to her property in the process of removal. Appellant contends that the city's taking of her property in violation of her constitutional rights constitutes irreparable injury sufficient to warrant the requested injunctive relief. The city argues, and the trial court found, that appellant has not shown that a failure to excavate the storm-water pipe would cause immediate and irreparable harm to appellant. According to the city, any damage done to appellant's property that could be attributable to the storm-water pipe is already complete and is therefore not subject to a mandatory injunction. We agree with the city.
{¶ 40} Initially, we note that appellant has failed to introduce any evidence to demonstrate that the damage she has observed on her property was caused by the storm-water pipe. On the contrary, the city introduced evidence by way of affidavit that the damage cited by appellant was the result of extreme settling that occurred on appellant's property due to the fact that the residence and detached garage were built on cullet, which is inherently susceptible to such settling. This evidence was not refuted by appellant. Nevertheless, assuming, arguendo, that the city's failure to maintain the storm-water pipe caused the damage on appellant's property, it is undisputed that the city has permanently abandoned the storm-water pipe and capped it off according to industry standards, thereby preventing any further damage on the property. An injunction is directed at preventing a future injury; it is not designed to redress past wrongs. Lemley at 136, citing State ex rel. Great Lakes College, Inc. v. State Medical Bd., 29 Ohio St. 2d 198, 280 N.E.2d 900 (1972). Therefore, we find that appellant's request for a mandatory injunction must fail. By extension, we find that the trial court properly granted summary judgment to the city on appellant's mandatory injunction claim.
{¶ 41} As we have determined that the city was entitled to summary judgment on each of appellant's claims contained in the complaint, we find appellant's assignments of error challenging the trial court's grant of summary judgment to the city and denial of partial summary judgment to appellant not well-taken.
III. Conclusion
{¶ 42} In light of the foregoing, the judgment of the Wood County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
Arlene Singer, J.
James D. Jensen, J.
CONCUR. /s/_________
JUDGE /s/_________
JUDGE /s/_________
JUDGE