2022 Ohio 3245
Ohio Ct. App.2022Background
- Plaintiff Russell M. Cook sued the Metropolitan Sewer District of Greater Cincinnati (MSD), the city of Cincinnati, and Hamilton County for property damage from recurring sewage flooding in 2017; he alleged MSD agreed to install a backflow valve but failed to do so, causing further damage.
- MSD moved to dismiss under Civ.R. 12(B)(6), arguing it was a subdivision of a municipal corporation and lacked legal capacity to be sued (not asserting statutory immunity in the motion).
- The trial court denied the motion, found MSD sui juris based on its litigation history, and — sua sponte, without the parties having briefed the issue — concluded MSD was not immune under R.C. Chapter 2744 (relying on precedent that sewer maintenance is a proprietary function).
- MSD and the city appealed the trial court’s entry, challenging both the denial of the motion to dismiss and the immunity determination.
- The appellate court held it had jurisdiction to review the immunity determination, reversed the trial court’s immunity ruling because the issue was raised sua sponte (depriving the parties of an opportunity to address it), and remanded for further proceedings.
- The court dismissed the portion of the appeal challenging MSD’s sui juris status for lack of appellate jurisdiction because, aside from immunity, denials of motions to dismiss are generally not immediately appealable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSD is immune from suit under R.C. Chapter 2744 | Cook’s complaint alleges negligent maintenance/acts that fit within a proprietary function (sewer maintenance), so immunity does not apply | MSD did not assert statutory immunity below; trial court lacked authority to decide immunity sua sponte without briefing or developed record | Trial court’s immunity determination reversed because it was made sua sponte and parties had no opportunity to address immunity; remanded without deciding immunity on the merits |
| Whether MSD is an entity capable of being sued (sui juris) and whether the motion to dismiss was properly denied | Cook argued MSD has been treated as capable of being sued and the complaint states a claim | MSD argued it is a subdivision lacking legal capacity and the complaint should be dismissed | Appellate court lacked jurisdiction to review the denial of the motion to dismiss except insofar as it implicated immunity; that portion of the appeal was dismissed for lack of jurisdiction |
Key Cases Cited
- Pinkins v. Mahoning Cty. Task Force, 176 N.E.3d 76 (7th Dist. 2021) (discusses reviewability of sui juris determination when immunity is raised below)
- Windsor Realty & Mgt., Inc. v. Northeast Ohio Regional Sewer Dist., 68 N.E.3d 327 (8th Dist. 2016) (appellate review of motion-to-dismiss denial limited to immunity issues)
- Korengel v. Little Miami Golf Ctr., 144 N.E.3d 1074 (1st Dist. 2019) (holding appellate review limited to immunity determinations when order is immediately appealable under R.C. 2744.02(C))