2019 Ohio 1639
Ohio Ct. App.2019Background
- Neighbors of the City View shopping center in Garfield Heights sued for nuisance and related claims after landfill-disturbance–related odors allegedly affected residential property values and habitability; class certification was granted and affirmed on appeal.
- The alleged source was a former landfill redeveloped into shopping center buildings; EPA issued orders in 2005 directing Garfield Heights to take remedial actions. Tenants (including Walmart) later left the site, citing landfill gas intrusion.
- Plaintiffs proposed a class of roughly 220 homeowners who purchased before December 31, 2002, submitting expert reports (odors and wind/odor migration) and a real-estate diminution-of-value affidavit. The city submitted a conflicting expert report finding odors de minimis.
- After class certification was affirmed, Garfield Heights moved for judgment on the pleadings asserting statutory immunity under R.C. Chapter 2744; the trial court denied the motion.
- On this appeal Garfield Heights argued the denial was appealable as a final order under R.C. 2744.02(C) and that it was immune from the nuisance claim; plaintiffs argued the complaint included a breach-of-contract claim, which is excepted from political-subdivision immunity, and raised res judicata defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the denial of the city’s motion for judgment on the pleadings is a final, appealable order under R.C. 2744.02(C) | Plaintiffs argued the amended complaint alleges breach of contract so immunity does not apply; denial need not be treated as an appeal of immunity | City argued denial of judgment on the pleadings rejecting immunity is a final, appealable order allowing review of immunity claim | Court: R.C. 2744.02(C) makes such denials final and appealable, but review is limited to immunity issues; here immunity cannot be resolved because plaintiffs alleged a contract claim excluded from R.C. Chapter 2744 immunity |
| Whether political-subdivision immunity under R.C. Chapter 2744 bars plaintiffs’ claims | Plaintiffs: complaint includes breach-of-contract claims against the city, and R.C. 2744.09(A) excludes contract claims from immunity | City: claims are common-law nuisance dressed up as contract; thus immunity should apply | Court: Immunity provisions do not apply to contract claims (R.C. 2744.09(A)); because plaintiffs pled contract liability, denial of judgment on pleadings as to immunity is proper and not fully reviewable on appeal |
| Whether res judicata bars the city’s arguments on immunity (based on prior appeal over class certification) | Plaintiffs: prior appeal resolved issues and precludes relitigation; city should be barred from raising immunity now | City: immunity argument was not raised earlier and thus not precluded | Court: Res judicata does not bar the city; it could not have appealed an immunity ruling that had not been made at the time of the earlier appeal |
| Whether appellate review may reach merits of trial court’s denial of judgment on the pleadings beyond immunity | Plaintiffs: urge consideration of contract pleadings and merits | City: sought broader appellate review including merits and dismissal | Court: Review under R.C. 2744.02(C) is limited to whether the trial court denied immunity; it cannot be used to reach other merits or non-immunity defenses |
Key Cases Cited
- Berdysz v. Boyas Excavating, Inc., 85 N.E.3d 288 (Ohio Ct. App. 2017) (prior class-certification decision and factual background)
- Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 540 N.E.2d 266 (Ohio 1989) (final-order jurisdiction principles)
- Hubbell v. Xenia, 873 N.E.2d 878 (Ohio 2007) (appellate jurisdiction requires final, appealable order)
- Grava v. Parkman Twp., 653 N.E.2d 226 (Ohio 1995) (res judicata bars claims that were or could have been litigated)
- Riscatti v. Prime Props. Ltd. Partnership, 998 N.E.2d 437 (Ohio 2013) (limits on appellate review when denial involves immunity)
- Windsor Realty & Mgt., Inc. v. Northeast Ohio Regional Sewer Dist., 68 N.E.3d 327 (Ohio Ct. App. 2016) (denial of immunity under R.C. 2744 is a final order but appellate review is confined to immunity issues)
- Duncan v. Cuyahoga Cmty. Coll., 970 N.E.2d 1092 (Ohio Ct. App. 2012) (R.C. 2744.09(A) excludes contract claims from political-subdivision immunity)